The Ninth Circuit has determined that a non-citizen is entitled to an evidentiary hearing on his ineffective assistance of counsel claim when the only evidence that his attorney provided inaccurate advice was his own affidavit.
With respect to whether the defendant would have rejected the plea had he been properly informed of the consequences, the court noted that that the judge’s advisal about possible removal and the plea agreement’s statement that removal was presumptively mandatory were not determinative on the issue of prejudice. “The record evidence contradicting Rodriguez’s argument is certainly strong. Rodriguez was told by the district court that removal was ‘a possible consequence’ of his plea and the plea agreement informed Rodriguez that his plea would make removal ;presumptively mandatory.’ But possibilities and presumptions are not conclusive, and even the plea agreement stated that ‘no one . . . can predict to a certainty the effect of [Rodriguez’s] conviction on his immigration status.’”
“When the court is faced with a fact-intensive analysis such as assessing whether a defendant would have gone to trial had he known the immigration consequences of his plea, and where the defendant presents some evidence not palpably false which suggests that he would have gone to trial, then it cannot be said that the record is conclusive against the defendant, nor can it be said that the defendant’s claim is ‘so palpably incredible or patently frivolous as to warrant summary dismissal.’ On these facts, it is ‘illogical’—and therefore an abuse of discretion—to deny an evidentiary hearing.”
The full text of US v. Rodriguez can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/21-15117.pdf