O’Melveny is 4 for 4 in the Fourth Circuit

April 26, 2017


Washington, DC—April 26, 2017—O’Melveny recently scored a precedent-setting pro bono win before the Court of Appeals for the Fourth Circuit with wide-ranging implications for clients facing potential deportation. It was also the firm’s fourth consecutive pro bono victory before the court in the last 12 months. Each of the cases was argued by an O’Melveny associate or counsel and secured the reversal of a lower court decision in a published opinion.

In US v. Swaby, the court found for O’Melveny client Philip Swaby, a Jamaican-born, legal permanent resident who was deported from the United States after pleading guilty to trafficking in counterfeit goods. Swaby filed a motion to vacate his conviction, arguing that his criminal defense attorney had failed to accurately explain that his guilty plea would result in his deportation. The district court agreed in principle, but held that the failure had been sufficiently remedied by telling Swaby that his guilty plea “could” result in deportation.

O’Melveny took Swaby’s case after he filed his own appeal, arguing that Swaby was in fact entitled to a clear and unequivocal warning that his plea would result in deportation. In its opinion, published April 24, 2017, the Fourth Circuit agreed, reversing the district court and making clear that criminal defendants are entitled to accurate advice about the deportation consequences of guilty pleas, and not merely general warnings that could be given in any case. In addition, the decision held that Swaby’s defense attorney had prejudiced him by not making a plea bargain that would have prevented his deportation.

The decision is significant as it clarifies that non-citizen criminal defendants are entitled to accurate advice about the immigration consequences of a guilty plea, and establishes a clear and equitable standard for how such defendants can show they were prejudiced by inadequate advice from their attorneys. The win is the latest in a string of precedent-setting Fourth Circuit victories the firm secured over the last year. 

In Custis v. Davis, O’Melveny successfully handled the appeal of a prematurely dismissed prisoner civil rights claim, convincing the Fourth Circuit to overrule prior case law and establishing greater procedural protections for future prison litigants.

In Sotnikau v. Lynch, the firm successfully challenged a client’s deportation after his Virginia conviction for involuntary manslaughter. The case reaffirmed that crimes of negligence do not constitute crimes of moral turpitude and will curb the Office of Immigration Litigation’s recent practice of attempting to evade judicial review of erroneous Board of Immigration decisions by asking the federal courts of appeals for remand.

And in Mena v. Lynch, the Fourth Circuit reversed the Board of Immigration Appeals on the ground that the client’s conviction for receiving stolen or embezzled property was not an “aggravated felony theft offense” and as a result did not make the client automatically deportable. The decision restored the client’s lawful permanent resident status, and he is now pursuing further relief on remand.

O’Melveny’s commitment to exceptional client service historically has extended to the underrepresented members of society through our vibrant and award-winning pro bono practice. Our pro bono program tackles the critical issues of the day, including immigration, housing, women’s rights, foster care, education, veterans affairs, jail reform, and community building.

About O’Melveny

O’Melveny’s clients shape markets, set precedents, and break boundaries. They are stalwarts and innovators, the names you trust, and the next big thing. And for more than a century, O’Melveny has been right beside them, kicking down walls and putting up defenses to help our clients achieve their most important goals. With approximately 700 lawyers in 15 offices worldwide guided by the principles of excellence, leadership, and citizenship, we uphold a tradition of treating our clients’ challenges and opportunities as our own. What do you want to achieve? For the answers, please visit www.omm.com.


Chris Till
O’Melveny & Myers LLP