Lawyer Incorrectly Told Client He Would Escape Deportation

Immigrant Accused of Selling Counterfeit Handbags

Philip Swaby is a Jamaican citizen but has been living in the United States since 2001. His wife is also a U.S. resident and his two children are U.S. citizens.  He held a green card and intended to apply for citizenship. Unfortunately, in 2011 the federal government charged him with selling counterfeit purses, handbags, and other merchandise.

Because Mr. Swaby could not afford to hire a lawyer, the court appointed attorney Peter Ward to represent him. Mr. Ward knew that if Mr. Swaby this case could be a big problem for his immigration status. Indeed, he was correct. If a court convicts a non-citizen of an “aggravated felony”, then the federal government can deport him.

Bad Legal Advice

Mr. Ward, however, was not an expert in immigration. He consulted with another lawyer named Mary Ann Berlin, who focuses on immigration law. The big question for them was — what counts as an aggravated felony? Their goal was to avoid an aggravated felony conviction if at all possible. If the sentence is one year or greater then the law deems a  felony aggravated. However, a crime can also become aggravated for various other reason regardless of the sentence, including if it involves deceit or fraud.

With this in mind, Ms. Berlin reviewed the statute under which Mr. Swaby planned to plead guilty. Unfortunately she reviewed the wrong version of the statute. The version she looked at did not include any reference to deceit or fraud. The updated version that she overlooked, however, does mention deceit or fraud. Based on the advice of Ms. Berlin and Mr. Ward, therefore, Mr. Swaby pled guilty to a sentence of 364 days, just short of one year. He and his lawyers believed this would avoid the government deporting him but they were all wrong.

Was it Ineffective Assistance of Counsel?

Soon after Mr. Swaby’s release from prison, ICE arrested him and planned to deport him. Mr. Swaby then obtained new lawyers and went back to court arguing that the court should vacate his conviction. Specifically, his new lawyers argued that his earlier lawyers had provided ineffective assistance of counsel.

It is true that the constitution requires that all defendants have effective assistance of counsel. What exactly this means has always been up for debate. It certainly does not mean that every defendant gets the best lawyer in the world. On the other hand, the defense lawyer’s representation must meet a minimum level of competence.

In a famous case from 2010, the United States Supreme Court ruled that a defense lawyer was ineffective for failing to warn his client that he was pleading guilty to a crime that would result in ICE deporting him. That ruling would seem to apply to Mr. Swaby’s situation. However, in Mr. Swaby’s case the sentencing judge warned him that his plea agreement presented a risk that ICE would deport him. This is standard boilerplate language that most courts give out for most plea bargains. Nevertheless, the government argued that although Mr. Swaby’s lawyers were ineffective, the sentencing judge remedied the problem by warning Mr. Swaby of the immigration risks.

Appeals Court Vacates the Conviction

The Fourth Circuit Court of Appeals rejected the government’s argument, and vacated Mr. Swaby’s conviction. The Court held that the judge’s warnings were general, only speaking about a possible risk of ICE deporting Mr. Swaby. This vague warning did not do enough to override the mistaken advice his lawyers gave him.

Of course, this does not mean that Mr. Swaby walks free and his troubles are over. He can either attempt to work out a better plea bargain with the government that legitimately avoids ICE deporting him. If he can’t, the government can still take the case to trial and try to convict of an aggravated felony that way.

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