FILED

NOT FOR PUBLICATION

JUN 03 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATIAS VELAZQUEZ, No. 14-16343

Petitioner - Appellant, D.C. Nos. 2:11-cv-00820-SMM 2:97-cr-00361-RCB-1 v.

UNITED STATES OF AMERICA, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted April 15, 2016 San Francisco, California

Before: O’SCANNLAIN, CLIFTON, and N.R. SMITH, Circuit Judges.

Appellant Matias Velazquez appeals the district court’s order denying his

“Motion to Vacate Plea of Guilty & Set Aside Judgement [sic]/Motion for

Expungement.” We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Like the court below, we construe Velazquez’s motion as a petition for error

coram nobis relief. In order to obtain coram nobis relief, a movant must establish

that: “(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

to satisfy the case or controversy requirement of Article III; and (4) the error is of

the most fundamental character.” Hirabayashi v. United States, 828 F.2d 591, 604

(9th Cir. 1987).

A movant may satisfy the fundamental error requirement by showing that he

received ineffective assistance of counsel. United States v. Kwan, 407 F.3d 1005,

1014 (9th Cir. 2005). To prevail on an ineffective assistance of counsel claim, a

petitioner must show that (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that but for

deficiencies in counsel’s performance, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

Velazquez has not made either showing.

I

Because Velazquez’s guilty plea occurred before the Supreme Court decided

Padilla v. Kentucky, 559 U.S. 356 (2010), an allegation that his counsel merely

“failed to advise” him about the immigration consequences of his plea is

2 insufficient to satisfy Strickland’s first prong. Padilla, 559 U.S. at 371; see also

Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013). Rather, Velazquez must

demonstrate that his attorney “affirmatively misle[d]” him regarding the

immigration consequences of a guilty plea. Kwan, 407 F.3d at 1008; see also

United States v. Chan, 792 F.3d 1151, 1154 (9th Cir. 2015). We doubt whether

Velazquez has done so.

First, we do not believe it would have been apparent to any competent

lawyer at the time of Velazquez’s plea that his crime constituted an aggravated

felony. The statute to which Velazquez pled guilty contains no specific dollar

amount as an element, and it took the Supreme Court’s decision in Nijhawan v.

Holder, 557 U.S. 29, 32 (2009), to clarify that courts ought to examine the record

of conviction rather than the statutory elements alone to determine whether the

$10,000 requirement in 8 U.S.C. § 1101(a)(43)(M)(i) is satisfied. See Kawashima

v. Mukasey, 530 F.3d 1111, 1118–24 (9th Cir. 2008) (O’Scannlain, J. concurring)

(explaining the confusion surrounding 8 U.S.C. § 1101(a)(43)(M)(i) in the Ninth

Circuit prior to Nijhawan).

Second, Velazquez’s attorney did not affirmatively mislead him. Unlike the

attorney in Kwan, Attorney de la Vara did not deny that Velazquez’s plea could

have immigration consequences. Instead, he told Velazquez he “could not

3 guarantee what the INS would do” and “did not promise [him] that he would not be

deported.” Granted, Attorney de la Vara told Velazquez that in his experience, the

INS “usually followed” a court’s recommendation against deportation, when the

court’s power to make mandatory recommendations had since been rescinded. See

Padilla, 559 U.S. at 361–64 (explaining Congress’s decision to do away with the

JRAD procedure). But even accounting for this change in law, Attorney de la

Vara’s statement was hardly an affirmative misrepresentation. By stressing that

the INS “usually followed” a court’s recommendation, Attorney de la Vara implied

that the recommendation would not be binding.

Moreover, the INS still possesses discretion to abandon deportation

proceedings in cases involving aggravated felonies, and courts sometimes do make

recommendations that the INS do just that. See Reno v. American-Arab Anti-

Discrimination Comm., 525 U.S. 471, 483–84 (1999) (explaining that at each stage

of deportation proceedings “the Executive has discretion to abandon the

endeavor”); see also, e.g.,Nunez v. Attorney General, 226 F. App’x 177, 178–79

(3d Cir. 2007) (describing a district court’s recommendation that an individual who

had committed an aggravated felony not be deported); United States v. Aguilar,

133 F. Supp. 3d 468, 470 (E.D.N.Y. 2015) (setting out a policy “regarding the

issuance of recommendations to immigration judges adjudicating deportation

4 proceedings of nonviolent citizens who have been found guilty of an illegal

activity”). Velazquez’s counsel did not render deficient performance.

II

Even if it is assumed that Velazquez has satisfied the performance prong

under Strickland, Velazquez has also failed to establish a reasonable probability he

was prejudiced by his attorney’s performance. Thus, he cannot establish the

fundamental error requirement under Hirabayashi. See Kwan, 407 F.3d at

1014–15.

In the context of a plea, a petitioner satisfies the prejudice prong of the

Strickland test only where “there is a reasonable probability that, but for counsel’s

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

Hill v. Lockhart, 474 U.S. 52, 59 (1985). No such probability exists in

Velazquez’s case. In his declaration, Attorney de la Vara stated that the prosecutor

did not offer Velazquez a plea agreement to any other offense, despite de la Vara’s

concern over immigration consequences. That obstinance on the part of the

prosecutor makes sense, as Attorney de la Vara also observed that “the evidence

against Mr. Velazquez was strong” and that Velazquez did not have “any viable

trial defenses.” In light of these facts, we think it highly unlikely that Velazquez

would have assumed the risk of going to trial, or could have avoided the

5 immigration consequences of a conviction by doing so. Because the evidence did

not demonstrate that Velazquez could have secured a more favorable plea

agreement or would have proceeded to trial, we cannot conclude that Velazquez

was prejudiced by his attorney’s performance.

AFFIRMED.

6

FILED

No. 14-16343, Velazquez v. United States.

JUN 03 2016

CLIFTON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. Velazquez’s defense attorney presented him a plea

agreement that contained a promise on the part of the prosecutor to ask the judge to

recommend to INS that Velazquez not be deported as a result of the conviction.

The attorney told Velazquez that INS usually followed the court’s recommendation

about deportation. That advice was wrong.

That incorrect advice affirmatively misled Velazquez in a way that

amounted to deficient performance of counsel under United States v. Kwan, 407

F.3d 1005, 1015 (9th Cir. 2005). Velazquez’s attorney apparently did not realize

that a guilty plea would result in an aggravated felony conviction and deportation,

regardless of any judicial recommendation. Even if, as the majority contends, it

were the case that a competent attorney might not have recognized at that time that

the crime to which Velazquez pled guilty constituted an aggravated felony, or that

INS could conceivably have decided not to pursue removal anyway, those

observations miss the point. Velazquez was not told by his attorney that the law

was uncertain, or that INS might decide not to follow through with deportation. He

was told that INS usually followed the court’s recommendation, and that was not

true. His attorney did not give him a guarantee that he would avoid deportation, but

he surely gave him false hope that he would probably avoid deportation by taking the plea deal. In particular, he was led to believe that a judicial recommendation

would be of use to him in a circumstance where that was not true. That false hope

induced Velazquez to agree to the plea deal. The attorney’s performance was

deficient insofar as he effectively misled his client as to the immigration

consequences of his plea agreement.

I also conclude that Velazquez was prejudiced by the deficient performance.

Velazquez cooperated with the government and received a light sentence of

probation. The prosecutor agreed to ask the court to recommend against

deportation. It seems likely to me that a plea to a different offense that did not

constitute an aggravated felony could have been negotiated, if the impact of the

plea that he entered had been properly understood. The prosecutor may not have

offered a plea agreement to a different offense, but it doesn’t appear that he was

asked for a different deal, because Velazquez’s counsel did not understand that it

could make a difference. Given that the prosecutor wanted Velazquez’s

cooperation and agreed to ask the judge to recommend that Velazquez not be

deported, there was a reasonable probability that the prosecutor would have agreed

to a plea to an offense that did not have the dire deportation consequence of the

plea that Velazquez entered. That is enough to establish prejudice.

I would vacate the dismissal and direct the entry of relief.

2