On November 15, 2002 the Second Circuit held that a court's denial of a motion to withdraw a plea of guilty was an abuse of discretion because defendant's attorney's affirmative misrepresentation about the deportation consequences of her guilty plea fell below an objective standard of reasonableness, amounting to ineffective assistance of counsel.

The case is US v. COUTO, No. 01-1636 (2d Cir. November 15, 2002)
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In its opinion, the Court referenced the Supreme Court's citing of the amicus brief filed by the National Association of Criminal Defense Lawyers in the St. Cyr case last year. The Couto Court stated:

"We have held that an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness. See, e.g., United States v. Santelises (Santelises II), 509 F.2d 703, 704 (2d Cir. 1975) (per curiam) (noting that attorney's failure to inform a defendant that a guilty plea could result in deportation "is of no legal significance"). At the same time, we have implied that an attorney's affirmative misrepresentations on the subject might well constitute ineffective assistance. See, e.g., id. ("Since [the attorney] does not aver that he made an affirmative misrepresentation, [the defendant] fails to state a claim for ineffective assistance of counsel."); United States v. Santelises (Santelises I), 476 F.2d 787, 789-90 (2d Cir. 1973) (no ineffective assistance claim where the defendant "does not allege that he was affirmatively misled by his counsel"). And on some occasions, we have suggested that an attorney does have a duty to provide that information. See Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) ("Where his client is an alien, counsel and not the court has the obligation of advising him of his particular position as a consequence of his plea." (emphasis added)). Moreover, recent Supreme Court authority supports this broader view of attorney responsibility as well. See, e.g., INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001) ("Even if the defendant were not initially aware of [possible waiver of deportation under the Immigration and Nationality Act's prior] § 212©, competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision's importance." (emphasis added) (citing Amicus Br. For Nat'l Assoc. Criminal Defense Lawyers et al. at 6-8)); id. at 322 n.48 (noting that "the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel `should fully advise the defendant of these consequences' " (citing ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982))). (Emphasis supplied).