UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAUREEN ELAINE CHAN, AKA Maureen Ridley, Defendant-Appellant.
As Corrected August 10, 2015.
Appeal from the United States District Court for the Central District of California. D.C. No. 2:93-CR-00583-RGK-1. R. Gary Klausner, District Judge, Presiding.REVERSED and REMANDED.
Mark M. Kassabian, Buehler & Kassabian, LLP, Pasadena, California, for Defendant-Appellant.
André Birotte, Jr., United States Attorney, Robert Dugdale, Chief, Criminal Division, Jean-Claude Andre (argued) and Wilson Park, Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee.
Before: Dorothy W. Nelson, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge D.W. Nelson; Concurrence by Judge Bybee; Dissent by Judge Ikuta.
Dorothy W. Nelson
[*1152] D.W. NELSON, Senior Circuit Judge:
Appellant Maureen Elaine Chan, a/k/a Maureen Ridley ("Chan"), appeals the district court's dismissal of her petition for a writ of error coram nobis. This case requires us to determine the retroactivity of our prior decision in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). Because we conclude that Kwan both survives Padilla v. Kentucky, 559 U.S. 356 , 130 S. Ct. 1473 , 176 L. Ed. 2d 284 (2010), and did not establish a new rule of criminal procedure under Teague v. Lane, 489 U.S. 288 , 109 S. Ct. 1060 , 103 L. Ed. 2d 334 (1989), we thus hold that Kwan applies retroactively to Chan's case. Accordingly, we reverse the district court's order dismissing Chan's petition and remand for further proceedings consistent with this opinion.
On June 22, 1993, Chan was charged with six counts of perjury under 18 U.S.C. § 1623 . Chan pleaded guilty pursuant to a plea agreement to three counts of perjury and was sentenced to two months imprisonment, three years of supervised release, [*1153] and a special assessment of $150. Chan is a British citizen but has been a lawful permanent resident of the United States since 1973.
Prior to pleading guilty, Chan alleges that she consulted with her attorney and specifically asked him whether a guilty plea would affect her immigration status. She further alleges that her attorney assured her that she would not face any adverse immigration consequences.
Chan states that on February 28, 2012, she was stopped by U.S. Customs and Border Protection agents at Los Angeles International Airport, who then confiscated her passport and permanent resident card. On November 15, 2012, the Department of Homeland Security initiated removal proceedings against Chan and served her with a Notice to Appear, charging her as inadmissible under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act as an immigrant convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I) .
On May 15, 2013, Chan brought a petition for writ of error coram nobis in the district court. Chan sought to withdraw her guilty plea and supported her petition with one claim of ineffective assistance of counsel ("IAC"), alleging that defense counsel affirmatively misrepresented the adverse immigration consequences of her conviction. Chan claimed that, had she known the true nature of the immigration [**2] consequences of her potential convictions, she would have requested a different plea deal or gone to trial.
On September 24, 2013, the government filed a motion to dismiss the petition. The district court granted the government's motion to dismiss, concluding that Kwan established a new rule of criminal procedure under Teague and, therefore, did not have retroactive effect. Chan timely appealed the district court's dismissal to this court.
II. Standard of Review
"[T]he writ of error coram nobis is a highly unusual remedy, available only to
correct grave injustices in a narrow range of cases where no more conventional remedy
is applicable." Id .; see also
United States v. Morgan,
346 U.S. 502
74 S. Ct. 247
98 L. Ed. 248
(1954) (describing the writ of error coram nobis as an "extraordinary remedy" available
"only under circumstances compelling such action to achieve justice"). In order to establish that she qualifies for coram nobis relief, the petitioner must
show the following four factors:
(1) a more usual remedy is not available;
(2) valid reasons exist for not attacking the conviction earlier;
(3) adverse consequences exist from the conviction sufficient to satisfy the case
or controversy requirement of Article III; and
(4) the error is of the most fundamental character.
The district court dismissed Chan's petition under—and the parties only dispute—the fourth factor. Specifically, the district court concluded that because Kwan established a new rule under Teague and, thus, does not apply retroactively, Chan had failed to state a claim for IAC and could not show that there was an error of "the most fundamental character."
To determine whether Chan may proceed with her IAC claim under Kwan, we [*1154] first look to whether Kwan survives Padilla.1 We then turn to whether this case is controlled by Chaidez v. United States, 133 S. Ct. 1103 , 185 L. Ed. 2d 149 (2013), which concluded that Padilla does not apply retroactively, and whether Kwan established a new rule of criminal procedure under Teague.
A. Whether Padilla Abrogates Kwan
In Kwan, we held that affirmatively misleading a client regarding the immigration consequences of a conviction could constitute the basis for an IAC claim. 407 F.3d at 1015 . We noted that our holding was notwithstanding our earlier-espoused rule that "an attorney's failure to advise a client of the immigration consequences of a conviction, without more, does not constitute ineffective assistance of counsel." Id . (citing United States v. Fry, 322 F.3d 1198 , 1200 (9th Cir. 2003), abrogated by Padilla, 559 U.S. 356 , 130 S. Ct. 1473 , 176 L. Ed. 2d 284 ).
Five years after Kwan, the Supreme Court changed the landscape of IAC claims and held that, in order to satisfy the Sixth Amendment, defense counsel "must inform her client whether his plea carries a risk of deportation." Padilla, 559 U.S. at 374 . This holding abrogated the existing rule in all ten courts of appeals that had reached this issue—including ours, Fry, 322 F.3d 1198—as the courts of appeals had uniformly concluded that the mere failure to advise [**3] regarding the possibility of deportation could not establish an IAC claim. Chaidez, 133 S. Ct. at 1109 & n.7.
Padilla was simultaneously broader and narrower than our decision in Kwan: broader in that Padilla reached affirmative misrepresentations and failure to advise, but narrower in that Padilla concerned only deportation whereas Kwan considered all "immigration consequences." Compare Padilla, 559 U.S. at 364-66 , 369-74 , with Kwan, 407 F.3d at 1015-17 . Further, the crux of Padilla's holding was to reject the direct/collateral consequence distinction in the context of deportation to "conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." 559 U.S. at 366 . Kwan, though, concerned itself more with the fact that an attorney misadvised his client about a matter material to the client's decision to enter into a plea agreement. See 407 F.3d at 1016 ("[C]ounsel made an affirmative representation to Kwan that he had knowledge and experience regarding the immigration consequences of criminal convictions; as a result, counsel had a professional responsibility to [correctly] inform himself and his client . . . ."). Thus, while Padilla clearly abrogated Kwan to the extent that Kwan reaffirmed the rule in Fry, see Kwan, 407 F.3d at 1015 , Kwan's holding that affirmative misrepresentations by counsel regarding immigration consequences constitutes deficient performance under Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), clearly survives Padilla.
B. Whether Chaidez Controls Kwan
We next turn to the government's argument that Kwan is controlled by Chaidez. The government contends that for the same reasons Chaidez concluded Padilla announced a new rule and was not retroactive, Kwan must also have announced a new rule and not be retroactive. Because we find Kwan sufficiently distinguishable from Padilla, we conclude Kwan is not controlled by Chaidez.
[*1155] In Chaidez, the Supreme Court held that Padilla did not have retroactive effect. 133 S. Ct. at 1105 . In evaluating Padilla under the Teague framework, the Court explained that Padilla had not simply applied the "general standard" for IAC in Strickland, but rather "did something more." Chaidez, 133 S. Ct. at 1107 , 1108 . That "something more" was answering a threshold question: whether Sixth Amendment protections governing the competence of defense counsel extended to advice regarding deportation. Id . In concluding that they did, the Court answered in part a question left explicitly open in Hill v. Lockhart, 474 U.S. 52 , 106 S. Ct. 366 , 88 L. Ed. 2d 203 (1985), whether the Sixth Amendment covered so-called "collateral consequence[s]" of a conviction. Chaidez, 133 S. Ct. at 1108 (citing Hill, 474 U.S. at 60 ). Importantly, as we noted above, the Court answered this question in Padilla by rejecting the direct/collateral consequence distinction, declining to label deportation as either and, instead, identifying it as "unique." Id. at 1110 (quoting Padilla, 130 U.S. at 365 ) (internal quotation marks omitted). As such, Padilla fundamentally altered Sixth Amendment jurisprudence in at least partially breaking down the distinction between direct and collateral consequences. Id. at 1110-11 .
Kwan's much narrower holding instead focused on whether counsel's performance was [**4] deficient. See 407 F.3d at 1015-17 . Kwan did not assert Padilla's holding that attorneys could be liable for failing to advise about adverse immigration consequences; rather, Kwan merely held that attorneys' affirmative misrepresentations—or incorrect answers to direct questions from clients—regardless of their subject matter would be deficient performance under Strickland. Id . Thus, Kwan's analysis rested on the distinction between failure to advise and affirmative misadvice, not on the direct/collateral/unique nature of the consequence faced by the petitioner. While there is some language in Chaidez that appears to cover both failure to advise and affirmative misrepresentations, see 133 S. Ct. at 1110 ("Padilla . . . made the Strickland test operative . . . when a criminal lawyer gives (or fails to give) advice about immigration consequences."), Chaidez also recognized that prior to Padilla, certain circuits "recognized a separate rule for material misrepresentations," which "lived in harmony with" other precedent excluding claims based on failure to advise, id. at 1112 .
Because Chaidez focused on the novelty of Padilla's threshold inquiry as to whether the Sixth Amendment ever applies to advice regarding deportation advice—an analysis absent from Kwan—we conclude that Kwan is not controlled by Chaidez and thus proceed with our own analysis of Kwan under Teague.
C. Kwan Under the Teague Framework
Lastly, we must determine whether, as the district court concluded and the government argues, Kwan constituted a new rule of criminal procedure under Teague and thus cannot be applied retroactively. We agree with Chan that Kwan did not establish a new rule under Teague, and we reverse the district court on that basis.
The framework we proceed under to determine retroactivity under Teague is clear: first,2 we determine "the date upon [*1156] which the defendant's conviction became final." Lambrix v. Singletary, 520 U.S. 518 , 527 , 117 S. Ct. 1517 , 137 L. Ed. 2d 771 (1997). Second, we "survey the legal landscape as it then existed and determine whether a . . . court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution." Id . (internal quotation marks, brackets and citations omitted). Finally, if the rule is a "new rule," we must determine "whether the relief sought falls within one of the two narrow exceptions to nonretroactivity." Id.
In this case, Chan's conviction became final in 2000. Accordingly, we are required to "survey the legal landscape" at that time to determine whether Chan would have been vindicated in seeking to apply the rule in Kwan to her case.
"[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Chaidez, 133 S. Ct. at 1107 (quoting Teague, 489 U.S. at 301 ) (internal quotation marks omitted). Further, "a holding is not so dictated . . . unless it would have been 'apparent to all reasonable jurists.'" Id . (quoting Lambrix, 520 U.S. at 527-28 ). However, "'[w]here the beginning point' of [the court's] analysis is a rule of 'general application . . . designed for . . . evaluating a myriad of factual [**5] contexts, it will be the infrequent case that yields a result so novel that it forges a new rule.'" Id . (first alteration in original) (quoting Wright v. West, 505 U.S. 277 , 309 , 112 S. Ct. 2482 , 120 L. Ed. 2d 225 (1992) (Kennedy, J., concurring)).
We find that many factors weigh in favor of concluding that Kwan did not announce a new rule of criminal procedure. First, the language of both Chaidez and Padilla indicates that a court would not be creating a new rule by holding only that defense counsel's affirmative misrepresentations regarding immigration consequences could constitute an IAC claim. In response to Justice Sotomayor's dissent in Chaidez, which argued that Padilla itself was not a new rule based on cases such as Kwan, Chaidez, 133 S. Ct. at 1118 (Sotomayor, J., dissenting), the Chaidez majority explained that "those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution," id. at 1112 (majority op.). The Court described the rule barring affirmative misrepresentations under Strickland—"regardless whether they concerned deportation or another collateral matter"—as a "limited" rule, which, it concluded, did not apply to Chaidez's failure-to-advise case. Id . Finally, the Chaidez majority noted that "Padilla would not have created a new rule had it only applied Strickland's general standard to yet another factual situation—that is, had Padilla merely made clear that a lawyer who neglects to inform a client about the risk of deportation is professionally incompetent." Id. at 1108 . Justice Sotomayor explained that "[t]he majority believes that [Kwan and related cases] did not meaningfully alter the state of the law in the lower courts before Padilla, because they merely applied the age-old principle that a lawyer may not affirmatively mislead a client." Id. at 1119 (Sotomayor, J., dissenting).
The distinction between affirmative misrepresentations and failure to advise also is reflected in Padilla. There, the Solicitor General argued that the Court should [*1157] adopt a more narrow rule, similar to Kwan, whereby counsel's performance would only be deficient under Strickland if the attorney gave "misadvice" about collateral/immigration consequences. Brief for United States as Amicus Curiae Supporting Affirmance, Padilla v. Kentucky, 559 U.S. 356 , 130 S. Ct. 1473 , 176 L. Ed. 2d 284 (2010) (No. 08-651), [559 U.S. 356], 2009 WL 2509223 , *6-7, 22-25. Although the Padilla majority rejected this position, 559 U.S. at 369-74 , Justice Alito advocated for the adoption of this narrower rule in his concurrence, id. at 384-87 (Alito, J., concurring). Justice Alito characterized the majority's rule as a "dramatic departure from precedent," a "major upheaval in Sixth Amendment law," and a "dramatic expansion of the scope of criminal defense counsel's duties under the Sixth Amendment." Id. at 377, 383. By contrast, Justice Alito explained the Solicitor General's narrower rule would "not require any upheaval in the law." Id. at 386. He additionally noted that "the vast majority of the lower courts considering claims of ineffective assistance in the plea context have distinguished between defense counsel [**6] who remain silent and defense counsel who give affirmative misadvice." Id. (internal quotation marks and brackets omitted). Read together, Chaidez and Padilla thus strongly indicate that the Court would not have considered the rule in Kwan to be a new rule.
Second, at the time Chan's conviction became final there was ample support in federal courts for the Kwan rule. By 2000, both courts of appeals to reach the issue had concluded that affirmative misrepresentations regarding immigration consequences could support an IAC claim in certain circumstances. See Downs-Morgan v. United States, 765 F.2d 1534 , 1540-41 (11th Cir. 1985); United States v. Briscoe, 432 F.2d 1351 , 1353-54 , 139 U.S. App. D.C. 289 (D.C. Cir. 1970). Additionally, many district courts had reached the same conclusion. See, e.g., United States v. Khalaf, 116 F. Supp. 2d 210 , 215 (D. Mass. 1999); see also United States v. Abramian, No. CR 02-00945 MMM, 2014 U.S. Dist. LEXIS 80334 , [2014 BL 160535], 2014 WL 2586666 , at *5 (C.D. Cal. June 10, 2014) (compiling cases). Several of our sister circuits had also concluded that affirmative misrepresentations regarding parole consequences, also considered to be a "collateral consequence" of a conviction, could establish an IAC claim. See James v. Cain, 56 F.3d 662 , 667-69 (5th Cir. 1995); Holmes v. United States, 876 F.2d 1545 , 1551-53 (11th Cir. 1989); Sparks v. Sowders, 852 F.2d 882 , 885 (6th Cir. 1988); Strader v. Garrison, 611 F.2d 61 , 65 (4th Cir. 1979). As such, "the [Kwan] rule was indicated, and was awaiting an instance in which it would be pronounced." Kovacs v. United States, 744 F.3d 44 , 50 (2d Cir. 2014). Moreover, we need not cite to a particular pre-2000 case stating that affirmative misadvice constitutes IAC for Kwan to not be a new rule under Teague because Kwan merely asserted an "age-old principle" that attorneys can be held liable if they affirmatively misadvise their clients. See Chaidez, 133 S. Ct. at 1119 (Sotomayor, J., dissenting); Dyer v. Calderon, 151 F.3d 970 , 984 (9th Cir. 1998) (en banc) ("[A] rule needs to be announced for purposes of Teague only if it's new. What we have here is the antithesis of Teague—a rule so deeply embedded in the fabric of due process that everyone takes it for granted.").
Although we join our colleagues on the Second Circuit in finding pre-Padilla circuit precedent on affirmative misrepresentations to be retroactive, see Kovacs, 744 F.3d at 5 0-51, we acknowledge that our conclusion puts us at odds with the Seventh Circuit's ruling in Chavarria v. United States, 739 F.3d 360 (7th Cir. 2014). There, the Seventh Circuit rejected "affirmative misadvice . . . under pre-Padilla law" as a basis for an IAC claim for two [*1158] reasons: "[F]irst, . . . the distinction between affirmative misadvice and non-advice was not a relevant factor in Padilla," and "[s]econd, the precedent, pre-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague." Id. at 362 .
We respectfully disagree with both of these points. First, while Padilla certainly breaks down the barrier between affirmative misrepresentations and failure to advise—at least as to deportation advice—henceforth, Justice Alito's concurrence and Chaidez strongly suggest that the impact of Padilla would have been far different had the Supreme Court simply adopted the narrower Kwan rule. As such, while the distinction may be "irrelevant" for future IAC claims, the distinction is relevant for our Teague [**7] analysis above. Second, as we explain above, we find ample support in the federal courts pre-Padilla for the rule that affirmative misrepresentations regarding immigration consequences could support IAC claims. As Chaidez noted, Kwan and similar cases "existed happily with precedent" that denied IAC claims based on failure to advise. 133 S. Ct. at 1112 .
Ultimately, we read the language in Chaidez differently than the Seventh Circuit did in Chavarria, and we agree with the Second Circuit's analysis in Kovacs. We thus conclude that Kwan did not announce a new rule of criminal procedure under Teague and that the rule in Kwan—affirmative misrepresentations by defense counsel regarding immigration consequences is deficient under Strickland—can support Chan's IAC claim.
The district court dismissed Chan's petition because it concluded that Kwan was a new rule of criminal procedure under Teague and did not apply retroactively. Because we conclude otherwise, we reverse the district court's dismissal. However, the district court did not consider the merits of Chan's petition because it was dismissed on this ground alone. Accordingly, we remand the case to the district court to evaluate the merits of Chan's petition in the first instance.
REVERSED and REMANDED.
BYBEE, Circuit Judge, concurring:
I concur in Judge Nelson's majority opinion that our prior decision in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), did not create a new rule under Teague. For reasons Judge Nelson explains, the duty under Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), not to make affirmative misrepresentations (whatever their subject matter) is not "new." But in my view, we should reverse the district court for an independent reason, one that I find even more compelling than applying Teague: We granted coram nobis relief in Kwan, and Chan's coram nobis petition is on all fours with Kwan. This case is governed by stare decisis.
In order to grant coram nobis, we must find the error alleged to be "of the most fundamental character, that is, such as [would] render the proceeding itself invalid." Hirabayashi v. United States, 828 F.2d 591 , 604 (9th Cir. 1987) (internal quotation marks omitted) (quoting United States v. Mayer, 235 U.S. 55 , 69 , 35 S. Ct. 16 , 59 L. Ed. 129 (1914)). When we granted coram nobis relief to Kwan, we determined that counsel's affirmative misrepresentation regarding Kwan's immigration consequences constituted an "error . . . of the most fundamental character." Kwan, 407 F.3d at 1011-12 (quoting Estate of McKinney ex. rel. McKinney v. United States, 71 F.3d 779 , 781-82 (9th Cir. 1995)). The Supreme Court has held that such fundamental errors exist only in "'extraordinary' [*1159] cases presenting circumstances compelling its use 'to achieve justice.'" United States v. Denedo, 556 U.S. 904 , 911 , 129 S. Ct. 2213 , 173 L. Ed. 2d 1235 (2009) (quoting United States v. Morgan, 346 U.S. 502 , 511 , 74 S. Ct. 247 , 98 L. Ed. 248 (1954)).1 If an error is so fundamental as to warrant coram nobis relief, doesn't that mean that the principle is not new? Or put differently, is a finding of "fundamental error" for coram nobis purposes automatically "not-new" for Teague purposes because of its fundamental status? I think the answer to both questions must be yes.
Under Teague, a case "announces a new rule if the result was not [**8] dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288 , 301 , 109 S. Ct. 1060 , 103 L. Ed. 2d 334 (1989). Such "a holding is not so dictated . . . unless it would have been 'apparent to all reasonable jurists'" at the time that the defendant's conviction became final. Chaidez v. United States, 133 S. Ct. 1103 , 1107 , 185 L. Ed. 2d 149 (2013) (quoting Lambrix v. Singletary, 520 U.S. 518 , 527-528 , 117 S. Ct. 1517 , 137 L. Ed. 2d 771 (1997)). It seems obvious to me that an error of such fundamental character as to warrant coram nobis relief is one that all reasonable jurists would agree is an error.
Although I think the principle is obvious, neither the Supreme Court nor we have spoken to whether we must apply Teague where the case establishing the rule was an action in coram nobis. Cf. id. at 1106 n.1 (assuming without deciding that there was no meaningful difference between a coram nobis petition and a habeas petition in determining whether Padilla had retroactive effect under Teague). In Chaidez, the Court decided whether a prior, non-coram nobis case applied retroactively for the benefit of the coram nobis petitioner. Id. at 1106 , 1110-11. In that case, using Teague to decide whether the error was so obvious to be "fundamental" makes sense. By contrast, here we have a coram nobis petitioner seeking to use a prior coram nobis case retroactively for her own relief.
Chan's case is distinguishable from the principal decision noted by the dissent, Ortega v. Roe, for the same reason. See Dissent at 25-26. In Ortega (a 28 U.S.C. § 2254 habeas and pre-AEDPA case), we considered whether a habeas petitioner could rely on our decision in United States v. Stearns (a § 2255 case) for his own habeas relief, and we conducted a Teague analysis of Stearns. Ortega v. Roe, 160 F.3d 534 , 535-36 (9th Cir. 1998) (citing United States v. Stearns, 68 F.3d 328 , 329 (9th Cir. 1995)), vacated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470 , 120 S. Ct. 1029 , 145 L. Ed. 2d 985 (2000). It makes sense that we would conduct a Teague analysis in Ortega because Stearns treated the Sixth Amendment question before it as a straight-up Strickland question. In Stearns, we did not have to conclude that the petitioner's proceedings exhibited an "error of the most fundamental character." Accordingly, it makes sense to require a petitioner—whether proceeding under § 2254, § 2255 , or coram nobis—who is seeking [*1160] the benefit of a decision made retroactive in a prior habeas case, to satisfy Teague's "new rule" analysis. But not so here. We have already held the error in Chan's case to be "of the most fundamental character," and it strikes me as illogical to require her to repeat the same arguments for the purposes of satisfying Teague. We need not use Teague to decide if we find an error to be "fundamental" when Kwan has already so concluded. This case turns out to be a straightforward application of stare decisis.
I would reverse the district court's order dismissing Chan's petition because we are bound by Kwan's finding of "fundamental error" and its implicit holding that it was not creating a new rule under Teague.
IKUTA, Circuit Judge, dissenting:
As the Supreme Court made clear, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. And a holding [**9] is not so dictated . . . unless it would have been apparent to all reasonable jurists." Chaidez v. United States, 133 S. Ct. 1103 , 1107 , 185 L. Ed. 2d 149 (2013) (quoting Teague v. Lane, 489 U.S. 288 , 301 , 109 S. Ct. 1060 , 103 L. Ed. 2d 334 (1989) and Lambrix v. Singletary, 520 U.S. 518 , 527-28 , 117 S. Ct. 1517 , 137 L. Ed. 2d 771 (1997)) (internal quotation marks and citation omitted). Relying on our precedents and those of other circuits, we held in 2003 that counsel's failure to advise a defendant of collateral immigration consequences of a criminal conviction did not violate the Sixth Amendment. See United States v. Fry, 322 F.3d 1198 , 1200 (9th Cir. 2003), abrogated by Padilla v. Kentucky, 559 U.S. 356 , 130 S. Ct. 1473 , 176 L. Ed. 2d 284 (2010). As indicated in Chaidez, reasonable jurists would have interpreted that rule to mean that Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), was simply not "operative" and did not apply "when a criminal lawyer gives (or fails to give) advice about immigration consequences." Chaidez, 133 S. Ct. at 1110 . In 2005, we made an exception to this general rule, and held that Strickland does apply to a lawyer's affirmative misadvice about immigration consequences. United States v. Kwan, 407 F.3d 1005 , 1015 (9th Cir. 2005), abrogated in part by Padilla, 559 U.S. 356 , 130 S. Ct. 1473 , 176 L. Ed. 2d 284 . Because this exception was not dictated by precedent, Kwan established a new rule. In order to reach the opposite conclusion, the majority adopts the reasoning of the dissent in Chaidez. Maj. Op. at 10-12, 14. Because I think we should follow the Supreme Court's majority, not the dissenters, I decline to go along.
Before pleading guilty to three counts of perjury in 2000, Maureen Chan asked her attorney about the immigration consequences of her plea. According to Chan, the attorney told her that there would be no adverse immigration consequences. In 2012, the Department of Homeland Security initiated removal proceedings against Chan, charging her as being inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude. Chan brought a petition for writ of error coram nobis, seeking to withdraw her guilty plea on the ground that her counsel in 2000 gave her ineffective assistance by misadvising her of the immigration consequences of her plea. She claims that the exception stated in Kwan applies retroactively to her conviction in 2000.
If Kwan created a new rule, it cannot be applied retroactively to cases on collateral review. See Teague, 489 U.S. at 307 , 310 . Our reasoning in Fry indicates that our pre-Kwan precedent did [*1161] not dictate the result in Kwan, and such a result would not have been apparent to all reasonable jurists at the time of Chan's conviction. See Chaidez, 133 S. Ct. at 1107 . In Fry, we considered whether a habeas petitioner's claim that his Sixth Amendment right to effective assistance of counsel was violated when his counsel failed to inform him that he could be deported if convicted. 322 F.3d at 1199-1200 . Fry pointed to our long-standing precedent that "deportation is a collateral, not direct, consequence of the criminal process," id. at 1200 (citing Fruchtman v. Kenton, 531 F.2d 946 , 949 (9th Cir. 1976)), and that failure to advise a defendant of collateral consequences is not ineffective assistance of counsel, id . (citing Torrey v. Estelle, 842 F.2d 234 , 237 (9th Cir. 1988)). Citing cases from the First, Second, Fifth, Fourth, Seventh, Tenth, Eleventh and D.C. Circuits, Fry also noted that "[a]ll other circuits to address the question [**10] have concluded that deportation is a collateral consequence of the criminal process and hence the failure to advise does not amount to ineffective assistance of counsel." Id . (internal quotation marks omitted). Fry concluded, consistent with both Ninth Circuit precedent and our sister circuits, "that counsel's failure to advise a defendant of collateral immigration consequences of the criminal process does not violate the Sixth Amendment right to effective assistance of counsel." Id . Fry did not suggest there was any distinction between lack of advice about deportation and misadvice about deportation. Nor would it have been apparent to all reasonable jurists that we intended such a distinction, given the general principle (subsequently spelled out by the Supreme Court) that "there is no relevant difference between an act of commission and an act of omission" for purposes of ineffective assistance of counsel, and thus a lawyer's advice includes a lawyer's "affirmative misadvice." Padilla, 559 U.S. at 370 .
By concluding that the petitioner could not raise an ineffective assistance of counsel claim because deportation is a collateral consequence of the criminal process, Fry effectively recognized, in keeping with our sister circuits, that "advice about matters like deportation, which are 'not a part of or enmeshed in the criminal proceeding,' does not fall within the [Sixth] Amendment 's scope." Chaidez, 133 S. Ct. at 1109 (quoting United States v. George, 869 F.2d 333 , 337 (7th Cir. 1989)). This conclusion derives from the more general principle that if a defendant has no constitutional right to effective assistance of counsel with respect to a collateral matter, an attorney's error with respect to such a matter could not violate the defendant's Sixth Amendment right. Cf. Coleman v. Thompson, 501 U.S. 722 , 752-53 , 111 S. Ct. 2546 , 115 L. Ed. 2d 640 (1991) (where there is no constitutional right to counsel, there is no deprivation of effective assistance regardless whether the attorney makes a serious error in representing the client). Accordingly, before Kwan was decided, a reasonable jurist could conclude that an attorney's "advice about collateral matters" was "excluded . . . from the Sixth Amendment's ambit," and therefore Strickland did not apply "when a criminal lawyer gives (or fails to give) advice about immigration consequences." Chaidez, 133 S. Ct. at 1110 . Indeed, nothing in our case law would have precluded us from reaching such a conclusion.
We decided to take a different approach. In 2005, Kwan distinguished Fry and held for the first time that Strickland applied to an affirmative misrepresentation regarding immigration consequences. See Kwan, 407 F.3d at 1015 (citing United States v. Couto, 311 F.3d 179 , 187-88 (2d Cir. 2002)). While other circuits had reached this conclusion as well, no Ninth Circuit case had previously adopted this exception to the collateral consequences rule.
[*1162] Did Kwan announce a new rule? Chaidez strongly indicates it did so. As explained in Chaidez, making an exception to the collateral consequences rule that advice regarding deportation is "'categorically removed' from the scope of the Sixth Amendment right to counsel," 133 S. Ct. at 1108 , requires a court to breach " [**11] the previously [fissure]-free wall between direct and collateral consequences" and establish that Strickland did apply to claims of ineffective assistance of counsel relating to deportation matters, id. at 1110 . Such a breach in the wall between direct and collateral consequences constitutes "'breaking new ground' or 'imposing a new obligation,'" and therefore creates a new rule that is not retroactively applicable. Id . (alterations omitted). In reaching this conclusion, Chaidez rejected the defendant's argument that a breach in the wall between direct and collateral consequences (made by Padilla) did not constitute a new rule because it "did no more than apply Strickland to a new set of facts." Id. at 1111 . Rather, the Court explained, before considering the applicability of Strickland, Padilla had to determine "whether Strickland applied at all." Id. at 1110 .
We should reach the same conclusion here. Because we adopted the collateral consequences rule based on our long-standing precedent, see Fry, 322 F.3d at 1200 , a jurist could reasonably conclude that Strickland didn't apply at all to "a lawyer's advice (or non-advice) about a plea's deportation risk," Chaidez, 133 S. Ct. at 1110 . Two years later, Kwan created a "separate rule," id. at 1112 , by distinguishing Fry and holding that the Sixth Amendment applied to affirmative misadvice by counsel regarding the collateral matter of deportation, see Kwan, 407 F.3d at 1015-17 . As explained in Chaidez, such a rule had to first breach "the previously [fissure]-free wall between direct and collateral consequences" and establish that Strickland applied to collateral deportation matters, when the attorney gives affirmative misadvice. Chaidez, 133 S. Ct. at 1110 . Kwan's exception was not dictated by Strickland, because Kwan first had to reach the conclusion that "Strickland applied at all." Id . Accordingly, we should conclude that Kwan was not the mere application of Strickland, but rather created a new rule that is not retroactively applicable. See Teague, 489 U.S. 288 , 109 S. Ct. 1060 , 103 L. Ed. 2d 334 .
The majority's arguments regarding why Kwan did not create a new rule are not persuasive. Like the defendant in Chaidez, Chan and the majority here argue that Kwan was a simple application of Strickland. Maj. Op. at 11-12. But this is the very argument rejected by Chaidez. Indeed, in concluding that Kwan was just an application of Strickland, the majority is forced to rely on the language of Chaidez's dissent. Maj. Op. at 14 (quoting Chaidez, 133 S. Ct. at 1119 (Sotomayor, J., dissenting)) ("Kwan merely asserted an 'ageold principle' that attorneys can be held liable if they affirmatively misadvise their clients.").
Second, the majority argues that Kwan's rule is not new because it can be retrospectively supported by Strickland. Maj. Op. at 11-12. Of course at some level of generality even a new rule can be justified by reference to prior case law. See, e.g., Saffle v. Parks, 494 U.S. 484 , 489-90 , 110 S. Ct. 1257 , 108 L. Ed. 2d 415 (1990) (concluding that extending the reasoning of two prior cases resulted in the creation of a new rule). But the correct inquiry is whether the Kwan rule was dictated by our precedent, see Teague, 489 U.S. at 301 , and the majority cites no Ninth Circuit cases that would suggest that all reasonable [**12] jurists at the time of Chan's conviction would predict the announcement [*1163] of a rule that affirmative misadvice about immigration consequences would be exempt from the firm barrier that existed between direct and collateral consequences. See Chaidez, 133 S. Ct. at 1110 . Rather, a jurist could have reasonably concluded that an attorney's error with respect to collateral immigration matters was simply outside the scope of the Sixth Amendment .
Finally, the majority defends its position that Kwan did not create a new rule by pointing to the other circuits and out-of-circuit district courts that had adopted a similar exception for affirmative misrepresentations prior to Kwan. Maj. Op. at 13-14. But Chaidez made clear that the fact that "a minority of courts recognized a separate rule for material misrepresentations," Chaidez, 133 S. Ct. at 1112 , was insufficient to establish that all reasonable jurists would have concluded that the Sixth Amendment applied to the collateral consequence of deportation, id . In other words, the existence of these out-of-circuit decisions does not establish that all reasonable Ninth Circuit judges, "prior to [Kwan], thought they were living in a [Kwan]-like world." Id . As noted above, we had adopted the collateral consequences rule, see Fry, 322 F.3d at 1200-01 , and made no mention of the separate material misrepresentation rule later adopted in Kwan. More to the point, Chaidez indicates that the exception to the collateral consequences rule that Kwan ultimately adopted constituted a "separate rule," not simply an application of Strickland. 133 S. Ct. at 1112 .
The concurrence similarly misses the mark in concluding that when a court announces a rule in the course of deciding a coram nobis petition, that rule is binding on all subsequent coram nobis petitions. This argument is in tension with our case law, which properly adheres to Teague. Thus in Ortega v. Roe, rather than apply a rule announced in a prior habeas case without considering whether that rule existed at the time Ortega's conviction became final, we instead considered whether the rule was in fact "new," as defined by Teague. See 160 F.3d 534 , 536 (9th Cir. 1998), vacated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470 , 120 S. Ct. 1029 , 145 L. Ed. 2d 985 (2000). This same approach would apply in coram nobis proceedings, because in determining whether a rule applies retroactively, we do not distinguish between habeas and coram nobis. See United States v. McClelland, 941 F.2d 999 , 1002 (9th Cir. 1991); United States v. Walgren, 885 F.2d 1417 , 1421 (9th Cir. 1989).
Finally, the concurrence's argument that any rule announced in the course of deciding a coram nobis petition must be applied to subsequent coram nobis cases is contrary to Teague, which made clear that a new rule may be applied retroactively to cases on collateral review only "if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" or "if it requires the observance of 'those procedures that . . . are implicit in the concept of ordered liberty.'" 489 U.S. at 307 , 310 , quoting Mackey v. United States, 401 U.S. 667 , 692-93 , 91 S. Ct. 1160 , 28 L. Ed. 2d 404 (1971) (Harlan, J., concurring). Not all new rules in coram nobis cases will pass such a high bar, and the [**13] rule announced in Kwan does not come close. Of course, the question whether a rule announced in a federal habeas or coram nobis proceeding is a "new rule" should seldom arise, since the Supreme Court has banned using habeas corpus (and by extension, other collateral proceedings such as coram nobis) to create new constitutional rules of criminal procedure unless the rules meet the two exceptions described in Teague. See489 U.S. at 316 [*1164] . But as explained above, Chaidez requires us to conclude that the rule announced in Kwan was a new rule, and therefore we must comply with Teague in considering whether it is applicable here.
Although Chan's case is sympathetic, the result in Kwan "was not dictated by precedent existing at the time [Chan's] conviction became final" and would not "have been apparent to all reasonable jurists." Chaidez, 133 S. Ct. at 1107 (internal quotation marks omitted). As such, Kwan created a new rule and cannot be applied retroactively to Chan's case. See Teague, 489 U.S. at 301 , 310 . I would affirm the district court.
The government made this argument before the district court, but has not pursued it on appeal. Although the government has thus waived this argument, Smith v. Marsh, 194 F.3d 1045 , 1052 (9th Cir. 1999), we find it a necessary starting point for our analysis.
Of course, there is a threshold determination as to whether the rule presented is "a substantive rule or a procedural rule" as "'Teague by its terms applies only to procedural rules.'" Hayes v. Brown, 399 F.3d 972 , 982 (9th Cir. 2005) (en banc) (quoting Bousley v. United States, 523 U.S. 614 , 620 , 118 S. Ct. 1604 , 140 L. Ed. 2d 828 (1998)). Neither party has argued that the rule in this case is substantive, and we conclude that because it "does not affect the scope of a substantive criminal statute," the rule here is clearly procedural. See id.
Historically, we have granted coram nobis relief only in very extreme and narrow circumstances. See, e.g., United States v. McClelland, 941 F.2d 999 , 1001-02 (9th Cir. 1991) (granting coram nobis relief where defendant had been convicted without proof beyond a reasonable doubt of an essential element of the offense); United States v. Walgren, 885 F.2d 1417 , 1423-24 (9th Cir. 1989) (finding fundamental error where Walgren's mail fraud conviction rested upon a commission of fraud that was not criminal); Hirabayashi, 828 F.2d at 608 (granting coram nobis relief to vacate Hirabayashi's convictions for failure to report under the Civilian Exclusion Order 57 and for a wartime curfew violation, convictions which were later deemed unjust by both the legislative and executive branches).