Erroneous Advice Concerning Deportation Consequences Prompts Circuit to Grant Writ and Vacate Conviction

Kovacs, an Australian national, pled guilty in 1999 to misprision of felony (18 U.S.C. § 4). His lawyer advised him at the time — and stated on the record — that the plea would have no immigration consequences. Many years later, Kovacs learned that this advice was incorrect, and that his conviction placed him at risk of detention and deportation if he ever reentered the United States.

Kovacs then sought a writ of error coram nobis in the district court, arguing that his lawyer rendered ineffective assistance of counsel by giving erroneous advice concerning the deportation consequences of pleading guilty, and that his conviction should be vacated. The district court denied the petition without an evidentiary hearing.

In this published opinion, the Circuit reversed and ordered the granting of the writ. The Court held, first, that the petition was timely, and that counsel’s affirmative misrepresentation about the deportation consequences of the plea constituted “objectively unreasonable” performance under Strickland v. Washington. 

The Court also held that Kovacs had established that his lawyer’s flawed advice caused him “prejudice.” The Circuit declared that “a defense lawyer’s incorrect advice about the immigration consequences of a plea is prejudicial if it is shown that, but for counsel’s performance errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense.”

Here, Kovacs showed that, but for counsel’s deficient performance, (1) he could have negotiated a plea that would not have impaired his immigration status; and, (2) even if he could not have negotiated such a plea, he would have litigated an available statute-of-limitations defense. Accordingly, the Circuit directed the district court to issue the writ and vacate Kovacs’s conviction.