United States District Court, S.D. New York
OPINION & ORDER
RONNIE ABRAMS, District Judge.
Shu Feng Xia, a noncitizen now serving a sentence of a year and a day after pleading guilty to conspiracy to commit immigration fraud, moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C § 2255. Although he makes many arguments in support of his motion, Xia's principal claim is that his counsel was constitutionally ineffective for failing to direct the Court's attention to the deportation consequences of a sentence of one year or more. Xia argues that a sentence of less than a year-that is, even two fewer days than what he received-would have prevented him from being designated an "aggravated felon" under federal immigration law and thus could have saved him from mandatory deportation. For the reasons that follow, Xia's motion will be granted.
Xia was born in China in 1967 and grew up in poverty. Presentence Investigation Report ("PSR") ¶¶ 81, 83. His wife immigrated to this country in 2006 and was eventually granted asylum. PSR ¶ 86. She is now a naturalized citizen. Id. In June 2010, Xia, together with his two daughters, joined his wife in the United States after being sponsored by her. Id. He is now a legal permanent resident, as is his elder daughter, who is approximately 22 years old. PSR ¶¶ 85-86. His younger daughter, who is approximately 13, is a naturalized citizen. Id. Before moving to this country, Xia was employed as a laborer at a brick factory in China. PSR ¶ 100. Once in the United States, he was employed variously as a waiter at a Chinese restaurant in upstate New York, as a masseuse at a Manhattan nail salon, and as a handyman in Queens. PSR ¶ 99. In July 2011, however, he took a job as a paralegal at Bandrich & Associates, a law firm in Manhattan's Chinatown specializing in immigration law. PSR ¶ 98. It was a decision he would come to regret.
On December 12, 2012, Xia was named, together with eight others, in an indictment that alleged his participation in a widespread conspiracy to defraud U.S. immigration authorities by submitting hundreds of fraudulent asylum applications on behalf of ineligible applicants. PSR ¶ 22. Between 2007 and 2012, the conspiracy, which was based out of Bandrich & Associates and another law firm, was responsible for filing nearly 2, 000 such applications. Id. The facts concerning the conspiracy are discussed in more detail in United States v. Feng Ling Liu, No. 12-CR-934-1 (RA) (S.D.N.Y. July 20, 2015), released concurrently with this opinion. As a paralegal at Bandrich, Xia's job was to prepare clients for their asylum interviews by providing them with information about their purported asylum claims, rehearsing these false claims, and coaching clients on how to lie to immigration officials. PSR ¶ 53. On March 7, 2014, on the eve of trial, he pleaded guilty to one count of conspiracy to commit immigration fraud, the sole count in the indictment. See 18 U.S.C. § 371 (conspiracy); § 1546(a) (immigration document fraud).
At his sentencing on August 8, 2014, Xia faced a guidelines range of 27 to 33 months, as calculated by the Probation Office. Xia's counsel objected to the calculation of that range and urged the Court to impose a sentence that did not include any period of incarceration. See Xia Sentencing Letter of July 28, 2014, No. 12-CR-934 (RA), Dkt. 255 ("Sent. Letter"); Transcript of August 8, 2014, No. 12-CR-934 (RA), Dkt. 275 ("Sent. Tr."), at 20-25. Counsel's written and oral submissions made a forceful case to those ends. Among other things, counsel urged the court to consider that "[t]he collateral consequences of Mr. Xia's incarceration extend well beyond what the average prisoner might reasonably expect when he is convicted of a crime carrying a prison term." Sent. Letter at 16. In that regard, counsel specifically mentioned "the certainty of [Xia's] deportation after a prison sentence." Id.; see also Sent. Tr. 25 (urging a non-incarceratory sentence because of, among other things, "the collateral consequences that [Xia] and his family will endure and have endured and will continue to endure now and forever").
After ruling on Xia's objections to the proposed guidelines calculation, the Court calculated a revised guidelines range of 18 to 24 months, Sent. Tr. 16, 26; PSR ¶ 105, and ultimately sentenced him to a term of incarceration of one year and one day followed by three years of supervised release, Sent Tr. 28. In explaining the basis for that sentence, the Court noted that Xia stood convicted of a "serious crime" and that his role in the conspiracy, though "limited" when compared to some of his co-defendants, was "nonetheless important." Sent. Tr. 26. The Court added that "[t]his kind of exploitation of our immigration system endangers the public, compromises the integrity of the immigration system, and harms legitimate asylum seekers." Sent. Tr. 27. In addition to the other factors set forth in 18 U.S.C. § 3553(a), the Court noted the need for the sentence "to afford adequate deterrence to others who may seek to engage in this conduct." Id. In addressing concerns expressed by family members about the likelihood of Xia's deportation, the Court noted: "I don't have control over deportation, which I think some of you may believe." Id. Xia was ordered to surrender on October 10, 2014. Sent. Tr. 31.
On August 18, 2014, not long after sentencing and less than a week after his counsel filed a notice of appeal, Xia personally wrote to the Court advising that he had "decided to fire [his] lawyer." Declaration of Randa Maher ("Maher Decl."), No. 14-CV-10029 (RA), Dkt. 19, Ex. A at 1. Proceeding pro se, he sought to challenge his sentence on the basis of his lawyer's alleged ineffectiveness. His last argument concerned the length of his sentence. Specifically, Xia asked that it be reduced from a year and a day to ten months so he could "avoid mandatory deportation." Id. at 5. He claimed that "[w]ith good performance, I will be imprisoned for about 10 months any way and it makes no difference in terms of how long I will be imprisoned. But the reduction will make a huge difference to me because I will be able to avoid mandatory deportation with ten months sentence." Id. at 5-6. Xia also noted that another judge in this District "just did it last year to a Chinese defendant to allow her to avoid mandatory deportation." Id. at 6; see Transcript of October 10, 2013, United States v. Pan, No. 12-CR-153 (RJS), Dkt. 202, at 39-40 ("THE COURT:... My intention was to sentence you to a year and a day... [but] if there's any consequence that could flow from a sentence of [more] than a year in terms of immigration, I think that's a collateral consequence that would merit a lower sentence. So I intend to impose a sentence of ten months, which is about what you would serve [assuming "good time" credit] had I imposed a year and a day.").
In subsequent proceedings over the next two months, Xia's trial counsel was granted permission to withdraw in light of his client's claim of ineffectiveness, Xia asked the Court to construe his letter of August 18 as a § 2255 motion (which it did), and the motion was then denied without prejudice to renewal on the basis that it was premature given his pending direct appeal. See Shu Feng Xia v. United States, Nos. 14-CV-7978 (RA), 12-CR-934-9 (RA), 2014 WL 5393536 (S.D.N.Y. Oct. 9, 2014). Xia subsequently chose to withdraw his appeal and filed this motion on December 11, 2014. In a letter that reiterated his earlier arguments, Xia wrote: "I broke the law[, ] I should take the responsibility and I am willing to face the punishment. But the consequence of my current sentence is too cruel to me." Maher Decl., Ex. D at 2. He again argued that "the court did not consider the mandatory deportation consequence caused by the sentence and sentenced me for more than one year." Id. "I beg Your Honor through this 2255 motion to reduce my sentence... so that I can stay in the United States to live with my wife and daughters." Id. at 2-3.
On December 22, 2014, the Court ordered the Government to answer Xia's petition and thereafter appointed counsel to represent him pursuant to 18 U.S.C. § 3006A. Xia also agreed to waive attorney-client privilege and the record has since been expanded with affidavits from both him and his trial counsel. In his affidavit, Xia avers that he first discussed the deportation consequences of his conviction and possible sentence with his attorney in January 2014 in the course of weighing whether to plead guilty. Maher Decl., Ex. E at 1. Xia asserts that he mentioned his concerns about deportation to his attorney a second time, but he does not say when that was. Id.
For his part, Xia's trial counsel, a long-standing and well-respected member of this Court's criminal bar, has affirmed the view taken in his sentencing submission, namely that Xia faced "certain deportation" regardless of the sentence the Court imposed. Declaration of Joshua L. Dratel dated May 19, 2015 ("Att'y Decl.") ¶ 6, No. 14-CV-10029 (RA), Dkt. 21; see also ¶ 13 ("I believed the length of any sentence imposed on Mr. Xia would not have an impact on the ultimate determination whether to deport him.") Based on that belief, "the primary objective... [was] a sentence without imprisonment" and thus "the issue of the difference between a prison sentence of less or more than a year was never discussed prior to sentencing." Id. ¶¶ 8, 12. Trial counsel further asserts that he was "not comfortable" arguing for a specific length of sentence based on immigration consequences because it might have "provoke[d]" an argument from the Government that Xia, "who participated in a rather massive conspiracy designed to compromise the integrity of the U.S.'s immigration system and policy, should be the last person to receive an accommodation at sentencing due to the immigration consequences of his conviction." Id. ¶ 13. Counsel thus believed that "distinguishing between a sentence of at least one year in prison and one less than that would suggest that any prison term, as long as it was less than one year, was appropriate, and, again, undermine the principal objective of a sentence without prison at all." Id. ¶ 14. He also believed "there was sufficient prospect for a non-incarcerative sentence to justify arguing the all or nothing' position." Id. ¶ 15.
Beginning in the mid-1980s, Congress enacted a series of laws that have increasingly favored the deportation of noncitizens who commit crimes. See generally Peter H. Schuck & John Williams, Removing Criminal Aliens: The Pitfalls and Promises of Federalism, 22 Harv. J. L. & Pub. Pol'y 367, 422-458 (2000). The Supreme Court has recognized that these changes in the law "have dramatically raised the stakes of a ...