United States v. Chan, No. 14-55239 (D.W. Nelson with Bybee; dissent by Ikuta) --- The Ninth Circuit held that a defendant is entitled to postconviction relief (here, in the form of coram nobis relief and an opportunity to withdraw her guilty plea) if counsel affirmatively gave incorrect advise about the immigration consequences, not just whether the conviction would lead to deportation, of a guilty plea, thus rendering ineffective assistance under Ninth Circuit precedent that preceded Padilla v. Kentucky, 559 U.S. 356 (2010).
The petitioner here is a citizen of the United Kingdom who has been a lawful permanent resident of the United States since 1973. In 1993 she pleaded guilty to perjury and was sentenced to two months' imprisonment followed by three years of supervised release. Before pleading guilty, she averred in her petition for coram nobis, she specifically asked her lawyer whether she would suffer any adverse immigration consequences from the guilty plea. Counsel told her she would not. In 2012, she was stopped by customs agents at LAX, and her green card was confiscated. She was later placed in removal proceedings, charging that her perjury conviction was a crime of moral turpitude and she was inadmissible as a result. She then moved to set aside her perjury conviction through a writ of coram nobis, but the district court concluded that she was not entitled to relief because she was relying on a new rule of law that did not apply retroactively.
That new rule was the Ninth Circuit's 2005 decision in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), which held that affirmatively incorrect advise about immigration consequences of a guilty plea made a viable IAC claim. This particular holding distinguished a particular kind of incompetence on the part of defense counsel from the then-prevailing general rule that failure to advise a defendant about the collateral consequences of a guilty plea was not deficient performance under Strickland v. Washington, 466 U.S. 668 (1984), because there was no Sixth Amendment duty to advise about the collateral consequences of a guilty plea. That rule was changed in Padilla v. Kentucky, 559 U.S. 368 (2010), which imposed a limited duty under Strickland to advise if a guilty plea could lead to deportation (as opposed to other adverse immigration consequences). But in Chaidez v. United States, 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla didn't apply retroactively under Teague because it was a "new rule."
So the panel had to answer whether, in light of Padilla and Chaidez, the Kwan rule was a "new rule" that wouldn't apply retroactively. The panel concluded that it wasn't. Both Padilla and Chaidez, the majority reasoned, said that a holding that affirmative misadvice about immigration consequences wouldn't be "new" for Teague purposes. Most federal courts of appeals had held that "affirmative misadvice" about "collateral consequences" of a guilty plea was deficient performance under Strickland. Thus the district court erred when it held that Kwan did not apply retroactively to this case, and reversed the denial of the petition for a writ of coram nobis.
Judge Ikuta disagreed with this analysis and said that Kwan was a "new rule" in light of Padilla and Chaidez.
The decision is here: