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The Champion

November 2017 , Page 51 

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Informal Opinion: ‘Almost’ Effective Assistance: Immigration Consequences — Lessons from United States v. Swaby

By John Norman Scott

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‘Almost’ Effective Assistance: Immigration Consequences — Lessons from United States v. Swaby  

Appointed counsel did almost everything right for Philip Swaby, indicted for trafficking in counterfeit goods and conspiracy to traffic. The short distance between that almost and actually doing everything right, as announced in April 2017 by the Fourth Circuit in United States v. Swaby,1 clarifies a major dimension of the current standard for effective assistance of counsel. The decision serves as a fair warning to all lawyers who occasionally represent criminal defendants who are not U.S. citizens.

Swaby’s plea-based conviction for trafficking was overturned by the Fourth Circuit for what was termed ineffective assistance of counsel. The ineffectiveness arose from a seemingly small oversight, one that any defense attorney might have made if he or she were anything less than ultra-careful.

Swaby was a citizen of Jamaica, but had been a permanent resident of the United State

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