United States Court of Appeals

For the Eighth Circuit

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No. 17-3652

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Dilang Dat

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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Submitted: January 16, 2019

Filed: April 11, 2019 

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Before BENTON, MELLOY, and KELLY, Circuit Judges.

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BENTON, Circuit Judge.

Dilang Nhial Dat pled guilty to robbery in violation of 18 U.S.C. §§ 1951 and

2. He moved to vacate his conviction under 28 U.S.C. § 2255, claiming his counsel

wasineffective by misadvising himabout the immigration consequences of his guilty

plea. The district court denied the motion without an evidentiary hearing. Dat
appeals. Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court reverses

and remands. 

I.

Dat, a South Sudanese citizen, was born in 1993 at a refugee camp in Kenya

after his parents fled Sudan. Admitted to the United States around 1994, he became

a lawful permanent resident. For most of his life, he lived in Omaha, Nebraska with

his parents and five younger siblings. Hisfather is wheelchair-bound, and his mother,

the family’s sole provider, works in a factory. 

In 2014, Dat was indicted on two counts of Hobbs Act robbery, under 18

U.S.C. §§ 1951 and 2, and one count of brandishing a firearm during a robbery, under

18 U.S.C. §§ 924(c) and 2. He pled guilty to one robbery count. The other charges

were dismissed. The district court sentenced him to 78 months’ imprisonment. 

In an affidavit, Dat asserts: Before pleading guilty, he asked his counsel about

the possibility of deportation. His counsel spoke to an immigration specialist, then

advised he would not be deported because he was a long-tenured lawful permanent

resident, not an “illegal immigrant.” After rejecting two plea agreements with strong

deportation language, he accepted a plea acknowledging “there are or may be

collateral consequencesto any conviction to include but not limited to immigration.”

His acceptance was based on counsel’s assurance his immigration status would be

unaffected. He learned, after his conviction, this immigration advice was incorrect,

when his mother’s attempt to renew his green card was denied. 

Dat moved to vacate his conviction under § 2255, claiming his counsel

misadvised him about the immigration consequences of pleading guilty. The district

court denied his motion without an evidentiary hearing. In a brief order, the court

found he was advised of the immigration consequences by his plea agreement,

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Petition to Enter a Plea of Guilty, and colloquy with the court at his change-of-plea

hearing. Dat appeals, arguing the district court erred in denying his motion and

abused its discretion by not holding a hearing. 

II.

This court reviews § 2255-ineffective-assistance claims de novo, and the

underlying factual findings for clear error. Hyles v. United States, 754 F.3d 530, 534

(8th Cir. 2014). “A district court’s denial of an evidentiary hearing on a § 2255

motion may be reversed only for an abuse of discretion.” Id. To establish ineffective

assistance during plea negotiations, “a defendant must show that counsel’s

representation ‘fell below an objective standard of reasonableness’ and that he was

prejudiced as a result.” Jae Lee v. United States, 137 S. Ct. 1958, 1964 (2017),

quoting Strickland v. Washington, 466 U.S. 668, 688 (1984). A § 2255 petitioner

is entitled to an evidentiary hearing “[u]nless the motion and the files and records of

the case conclusively show that the [petitioner] is entitled to no relief.” 28 U.S.C. §

2255(b). “A petitioner’s allegations must be accepted as true and a hearing should

be held unless they are contradicted by the record, inherently incredible, merely

conclusions, or would not entitle the petitioner to relief.” Garcia v. United States,

679 F.3d 1013, 1014 (8th Cir. 2012). 

A.

Establishing Strickland deficiency requiresshowing “that counsel made errors

so seriousthat counsel was not functioning asthe ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” White v. Dingle, 757 F.3d 750, 752–53 (8th Cir. 2014),

quoting Strickland, 466 U.S. at 687. To provide constitutionally effective assistance,

“criminal defense attorneys have a duty to inform clients about the possible

immigration consequences of pleading guilty.” Barajas v. United States, 877 F.3d

378, 380 (8th Cir. 2017), citing Padilla v. United States, 559 U.S. 356, 374 (2010). 

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[W]hen the deportation consequence is truly clear, . . . the duty to give correct advice

is equally clear.” Padilla, 559 U.S. at 369.

Dat asserts his counsel assured him he would not be deported. This would be

deficient representation because his conviction subjects him to mandatory removal. 

Hobbs Act robbery (with a 78-month term of imprisonment) is clearly an aggravated

felony. See 8 U.S.C. § 1101 (43)(F) (“aggravated felony” means a crime of violence

under 18 U.S.C. § 16 with a term of imprisonment of at least one year, which includes

“an offense that has an element the use, attempted use, or threatened use of physical

force against the person or property of another”); Diaz v. United States, 863 F.3d 781,

783 (8th Cir. 2017) (holding Hobbs Act robbery is a crime of violence under

analogous statute), citing United States v. House, 825 F.3d 381, 387 (8th Cir. 2016);

United States v. Farmer, 73 F.3d 836, 842 (8th Cir. 1996) (concluding Hobbs Act

robbery “has as an element the use, attempted use, or threatened use of physical force

against the person of another”). The Immigration and Nationality Act is “succinct,

clear, and explicit” about the removal consequence for aggravated felonies. Padilla,

559 U.S. at 368. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of

an aggravated felony at any time after admission is deportable.”); 8 U.S.C. §

1229b(a)(3) (an alien “convicted of any aggravated felony” is not eligible for

cancellation of removal); Chaidez v. United States, 568 U.S. 342, 345 (2013)

(aggravated felony conviction subjects a lawful permanent resident to “mandatory

removal”). 

Because the deportation consequence is clear, “the duty to give correct advice

is equally clear.” Padilla, 559 U.S. at 369. Taking Dat’s assertions as true, his

counsel provided “false assurance that his conviction would not result in his removal

from this country.” Id. at 368. Nothing in the record contradicts his factual

assertions about this advice. Like in Padilla, “[t]his is not a hard case in which to

find deficiency: The consequences of [Dat’s] plea could easily be determined from

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reading the removal statute, his deportation was presumptively mandatory, and his

counsel’s advice was incorrect.” Id. at 368–69. 

B.

Prejudice is a closer question. Dat asserts he would have rejected the plea and

insisted on trial but for his counsel’s misadvice. If true, this shows prejudice. See

Jae Lee, 137 S. Ct. at 1965 (“[W]hen a defendant claims that his counsel’s deficient

performance deprived him of a trial by causing him to accept a plea, the defendant

can show prejudice by demonstrating a ‘reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.’”),

quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). But, “[c]ourts should not upset a

plea solely because of post hoc assertions from a defendant about how he would have

pleaded but for his attorney’s deficiencies. Judges should instead look to

contemporaneous evidence to substantiate a defendant’s expressed preferences.” Id.

at 1967. Though the record lacks evidence such as an affidavit from plea counsel or

the allegedly rejected plea agreements, sufficient contemporaneous evidence

substantiates his claims.

Dat’s background supports his assertion that he was focused on remaining in

the country, which the Government does not contest. Cf. Doe v. United States, 915

F.3d 905, 912 (2d Cir. 2019) (“[Defendant’s] history in the United States, his family

circumstances, and his gainful employment all signal [his] strong connection to, and

desire to remain in, the United States.”), citing Jae Lee, 137 S. Ct. at 1968. At the

time of his plea, he had lived in the United States with his family for two decades. 

At the change-of-plea hearing, his counsel noted his request for a prison placement

close to his family, due to travel difficulties. There is no indication of ties to another

country. True, he faced around five more years in prison from a conviction on all

counts at trial (if the two counts had not been dismissed per the plea agreement). 

However, “deportation is ‘a particularly severe penalty,’ which may be of greater

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concern to a convicted alien than ‘any potential jail sentence.’” Sessions v. Dimaya,

138 S. Ct. 1204, 1213 (2018), quoting Jae Lee, 137 S. Ct. at 1968. At this stage,

sufficient evidence supports his assertions of prejudice. See Jae Lee, 137 S. Ct. at

1968–69 (defendant demonstrated prejudice fromcounsel’s misadvice “he would not

be deported if he pleaded guilty” where “deportation [was] the ‘determinative issue’

. . . in plea discussions,” he “had strong connectionsto this country and no other,” and

“the consequences of taking a chance at trial were not markedly harsher than

pleading”).

The Government argues that contemporaneous evidence contradicts Dat’s

assertion he would not have pled guilty if his lawyer had properly advised him. As

the district court noted, he acknowledged in his plea agreement that “there are or may

be collateral consequences to any conviction to include but not limited to

immigration.” In his Petition to Enter a Plea of Guilty, he acknowledged that a guilty

plea in “most federal felony cases” results in permanent removal. And at his

change-of-plea hearing, he affirmed he was aware his conviction “could affect” his

immigration status and had discussed the matter with his attorney. However, his

counsel’s alleged misadvice specifically undermined these equivocal warnings. They

informed Dat of a general possibility of immigration consequences. They do not

necessarily contradict or correct his counsel’s alleged misadvice he would not suffer

those consequences in his case. Compare Doe, 915 F.3d at 913 (counsel’s

misadvice—that deportation was not a mandatory result of the guilty plea—not

remedied where judge asked if defendant understood he “may be deported” and did

not informhimof the “mandatory consequences” of his plea to an aggravated felony),

and United States v. Akinsade, 686 F.3d 248, 254 (4th Cir. 2012) (“general and

equivocal admonishment” that defendant’s plea “could lead to deportation” was

“insufficient to correct counsel’s affirmative misadvice that [defendant’s] crime was

not categorically a deportable offense”), with United States v. Fazio, 795 F.3d 421,

428 (3d Cir. 2015) (any error in counsel’s failure to inform defendant his guilty plea

subjected him to automatic deportation was cured by plea agreement and district

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court’s “in-depth colloquy,” both of which “made clear that [defendant] was willing

to plead guilty even if that plea would lead to automatic deportation”). The record

here is inconclusive whether the plea documents or district court remedied counsel’s

misadvice.

The PSR noted Dat would be subject to “Administrative Removal,” and

immigration proceedings would commence upon his release. Dat accepted the PSR

without objection; his counsel affirmed she discussed it with him. In Abraham v.

United States, 699 F.3d 1050 (8th Cir. 2012), the defendant could not show prejudice

when “the PSR indicated a likelihood that [the defendant] would be deported if

convicted; [the defendant] confirmed that he had read the PSR, discussed it with his

counsel, and understood it; and [the defendant] never moved to withdraw his guilty

plea.” Abraham, 699 F.3d at 1053 (alterations in original). Abraham is

distinguishable. There, the defendant claimed counsel failed to “advise him that the

offense ‘virtually ensured’ deportation.” Id. Because the PSR remedied any failure

by “clearlyindicat[ing] his offense rendered himdeportable,” there was no reasonable

probability that the result of the proceeding would have been different if counsel had

“advised him of the immigration consequences of pleading guilty.” See id., citing

Padilla, 559 U.S. at 366. Here, Dat asserts counsel misadvised he would not be

deported. The PSR does not necessarily remedy this affirmative misadvice. Relying

on counsel’s advice, Dat could have reasonably believed he would not be deported

in immigration proceedings. These assertions show an evidentiary hearing is

required. See Witthar v. United States, 793 F.3d 920, 922 (8th Cir. 2015) (“[T]he

general rule is that a hearing is necessary prior to the [§ 2255] motion’s disposition

if a factual dispute exists.”).

At sentencing, counsel noted Dat had an immigration attorney and was dealing

with immigration ramifications. The Government argues this shows he knew the

deportation risk. In United States v. Ramirez-Jimenez, 907 F.3d 1091 (8thCir. 2018),

an ineffective-assistance claim failed because the defendant “surely knew”

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deportation was likely based on the district court’s and counsel’s advice at the

change-of-plea hearing, “[c]ombined with what [the defendant] already knew from

his ICE custody and prior dealings with immigration officials.” Ramirez-Jimenez,

907 F.3d at 1094. Dat, however, was not in ICE custody during this case. The scope

of his immigration attorney’s representation is not in the record, let alone the advice,

if any. He asserts his plea counsel affirmativelymisadvised him, and there is a factual

dispute whether that misadvice wasremedied. Unlike in Ramirez-Jimenez, the record

here is inconclusive whether Dat “surely knew” deportation was likely. 

The record does not conclusively show that Dat is entitled to no relief. The

district court thus abused its discretion by denying relief without an evidentiary

hearing. This court remands for an evidentiary hearing on Dat’s ineffectiveassistance claim.

1

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The judgment is reversed, and the case remanded for proceedings consistent

with this opinion.

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Dat’s motion to supplement the record is denied as moot. 1

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