The defendant in this case, a permanent resident living with her husband and her four U.S. citizen children, was facing an assault charge. She spoke only rudimentary English. Presented with an English language pretrial agreement, her counsel left her with a Spanish-speaking interpreter to review the agreement, which included a section warning of possible immigration consequences. The defendant pleaded guilty but later sought to withdraw the plea when she was taken into custody by federal immigration authorities looking to deport her. The defendant claimed that her lawyer did not discuss the agreement with her and that the interpreter did not cover the immigration subject other than to say that if she had her “papers” she would be all right. She was denied relief below.

In a per curiam opinion, the court acknowledged and stood by its holding in a previous case that deportation is a “collateral consequence” that does not affect the voluntariness of a guilty plea. However, the court pointed out that its previous case did not address situations in which counsel does not merely fail to discuss the immigration consequences of pleading guilty but affirmatively misrepresents what they are. “Perhaps understanding the harshness of deportation, a growing number of jurisdictions have adopted the affirmative misrepresentation exception to the collateral consequence rule,” the court said, citing United States v. Kwan, 407 F.3d 1005, 21 Law. Man. Prof. Conduct 278 (9th Cir. 2005). Agreeing with the reasoning of those other courts, it held that “affirmative misadvice regarding immigration consequences may constitute ineffective assistance of counsel and support withdrawal of a guilty plea as involuntarily entered.”

The court refused to extend this rule to cases in which court interpreters give bad advice, however. The defendant never claimed that her counsel misled her, the court noted; rather, she claimed that she thought the interpreter worked for the court and could render legal advice. Accordingly, the court said the defendant could not avail herself of the rule it announced.