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A federal appeals court has ruled that wrong deportation advice from a defense lawyer was serious enough to undo a guilty plea years after the sentence was served, even though both the plea agreement and the judge had warned that deportation was possible. In Morillo v. United States, decided Oct. 16, a divided panel of the U.S. Court of Appeals for the First Circuit upheld a New Hampshire federal judge’s order vacating the drug conspiracy conviction of Mara Morillo, a Venezuelan-born woman whose public defender told her she would “do some time” but could stay in the country and “work out” her immigration situation once released.
The conviction did the opposite: according to the opinion, it made her presumptively removable and permanently inadmissible. Law360 first reported the decision on Oct. 19.
The ruling matters now because enforcement leans heavily on people with criminal records, making old pleas, and the advice behind them, newly consequential. Plea bargaining is where those consequences are set: 97.2 percent of the 61,678 federal cases reported to the U.S. Sentencing Commission in fiscal 2024 ended in a guilty plea, and non-U.S. citizens made up 34.7 percent of everyone sentenced that year, with 17.6 percent of them sentenced under the drug trafficking guidelines, according to Commission data.
- The defendant: Morillo came to the United States in 1996 on a one-year visa, overstayed, and raised two U.S.-citizen children. She served 84 months in prison.
- The route back to court: a writ of coram nobis, the remedy left to someone no longer in custody, sought in 2025 after a 2021 DHS notice of intent to issue a final administrative removal order.
- The panel: Judge Gustavo A. Gelpí wrote for the majority, with Judge Thompson also on the panel. Judge Joshua Dunlap dissented.
Why a “may be removed” warning did not save the plea
Two Supreme Court cases frame claims like this one. Padilla v. Kentucky (2010) requires defense counsel to advise noncitizen clients about deportation risk, clearly when the consequence is clear. Lee v. United States (2017) asks whether there is a reasonable probability the defendant would have gone to trial instead, judged mainly by contemporaneous evidence.
The government’s strongest card was the paperwork. Morillo’s plea agreement said she “may be removed,” and the judge told her at the plea hearing that the consequences “may include deportation.” The majority found those warnings matched her lawyer’s message that deportation was merely possible, so they neither corrected the misadvice nor put her on notice. His statement at sentencing that she was “going to be deported” was advocacy for a lighter sentence, not advice to his client.
On prejudice, the majority found trial would not have been a hopeless gamble. Morillo had evidence of coercion and abuse that could have undercut the intent element of the conspiracy charge, and her daughter and a family friend corroborated her account at an evidentiary hearing. The government offered nothing to contradict it, and her former lawyer, with no specific memory of the case, testified only to his usual practice.
Judge Dunlap would have thrown the petition out as untimely. In his view, the 2017 sentencing statements and the 2021 removal notice each put Morillo on notice, she waited until 2025, and an earlier First Circuit decision, Aceituno, controlled. He also warned that the prejudice finding rested on testimony given years later, the kind of evidence Lee treats with caution.
That disagreement is the practical heart of the case. The ruling says generic warnings in plea forms do not cancel specific, wrong advice given in private. But private advice is rarely on the record, so these cases will keep turning on what a court believes about conversations from years earlier.
What a vacated conviction does and does not fix
Vacatur does not give Morillo legal status; her visa overstay alone makes her removable. What changes is the conviction’s weight. Under the Board of Immigration Appeals’ 2003 decision in Matter of Pickering, immigration authorities recognize convictions vacated for a legal defect in the criminal case, as opposed to those erased for rehabilitation or to avoid immigration hardship, and a constitutional ineffective-assistance finding fits that standard. Relief a drug conviction generally bars, such as cancellation of removal for nonpermanent residents, is no longer foreclosed on that ground, though every other requirement still applies.
The government can seek rehearing by the full First Circuit, and prosecutors could seek to retry the charge or negotiate a new plea. As a published opinion, the ruling binds federal courts in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. The likely result is more coram nobis petitions from noncitizens whose removal cases rest on pleas taken on reassurances, and defense lawyers documenting exactly what they told clients about immigration.
This article is for general information and is not legal advice.
Sources: Morillo v. United States, No. 25-2027 (1st Cir. Oct. 16, 2026), opinion; Law360, “Split 1st Circ. Nixes Plea Over Flawed Immigration Advice” (Oct. 19, 2026); U.S. Sentencing Commission, Quick Facts on Federally Sentenced Non-U.S. Citizens, fiscal year 2024; U.S. Sentencing Commission, 2024 Sourcebook, Figure 5 (guilty pleas and trials).
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