United States District Court, S.D. New York
OPINION & ORDER
H. STEIN, U.S.D.J.
Chen petitions this Court for a writ of error coram
nobis pursuant to the All Writs Act, 28 U.S.C. §
1651(a), seeking to vacate her 2003 conviction for conspiring
to commit alien smuggling in violation of 18 U.S.C. §
371 and 8 U.S.C. § l324(a)(2)(B)(ii). Chen claims that
her counsel was constitutionally ineffective in mistakenly
advising that her guilty plea would not adversely affect her
immigration status, when in fact the conviction has led to
the commencement of removal proceedings against her. As set
forth below, Chen's petition is denied because she has
failed to show a reasonable probability that she was
prejudiced by any ineffective assistance.
Background and Procedural History
native and citizen of the People's Republic of China,
obtained legal permanent resident status in the United States
on asylum grounds in 1995. [Chen Pet., Doc. 33, Ex. 5 at 1]
Seven years later, in 2002, she was charged in an eight-count
indictment in the Southern District of New York, along with
her husband and three other codefendants. On April 15, 2003,
Chen pleaded guilty before Magistrate Judge Maas to Count One
of the indictment, which alleged that from January through
August 1998 Chen conspired to smuggle aliens into the United
States for commercial advantage in violation of 18 U.S.C.
§ 371 and 8 U.S.C. § l324(a)(2)(B)(ii). Before
accepting Chen's guilty plea, Magistrate Judge Maas
stated "I do not know [your] immigration status..., but
if you are not a United States citizen, your plea of guilty
may have an effect on your ability to remain in this country
or may have other consequences with regard to your
immigration status, " to which Chen replied that she
understood. Id., Ex. 2 at 21.
August 13, 2003, this Court sentenced Chen to two years of
probation. At the sentencing, the Court told Chen, "I
suspect that the greatest part of the penalty is going to
come when you have to deal with the Department of Homeland
Security with regard to your status in the United States.
That will be ultimately up to the Department of Homeland
Security." Id., Ex. 3 at 9. The Court also set
a special condition of Chen's probation that she
"cooperate with the Bureau of Immigration and Customs
Enforcement of the Department of Homeland Security. In the
event of any deportation proceedings, [Chen] shall abide by
BICE regulations." Id. at 6. Chen did not
appeal her conviction or sentence.
officials apparently took no action against Chen for almost
eleven years, but on March 31, 2014, Immigration and Customs
Enforcement issued a notice to appear alleging that Chen was
subject to removal from the United States based on her
conviction of an aggravated felony as defined in section
101(a)(43)(U) of the Immigration and Nationality
[Gov. Opp., Doc. 43, Ex. 1 at 2-4] Chen was served with the
notice on August 21, 2015, and her first hearing before an
Immigration Judge was held ten days later. [Id. at
1.] According to the parties, Chen's removal proceedings
29, 2016, Chen filed this petition for a writ of error
coram nobis on the basis that her counsel rendered
constitutionally ineffective assistance to her. Her petition
asserted that "neither [my] lawyer nor the Court ever
advised [me] that [I] was pleading to an aggravated felony
and that the consequence of the plea was that [I] would be
forever barred from becoming a United States citizen."
Chen Pet., Doc. 33, at 3. In support of her petition, Chen
submitted an affidavit stating that her lawyer in the
criminal prosecution, Paul Goldberger, Esq.,
"erroneously advised me that the conviction would have
little effect on my ability to maintain my status of a legal
permanent resident" and "would not have any
permanent immigration consequences." Chen Aff., Doc. 34
at 1-2. Chen also maintained that Magistrate Judge Maas's
references to immigration consequences at her plea colloquy
were insufficient to alert her to the "absolute
consequences of the plea." Id. at 1. Last, Chen
stated that she would not have pled guilty had she understood
those absolute consequences, that she "would have
negotiated a plea that would not have resulted in these fatal
consequences to [her] immigration status had [she] been
advised of these alternative[s] by her lawyer, " and
that had she "been advised about any available
defense" she "surely would have pursued them."
Id. at 2. However, Chen's petition did not
identify any defense she could have asserted nor any
attainable plea bargain without the same immigration
consequences. The petition asks the Court to vacate her
conviction or, in the alternative, to hold an evidentiary
hearing to better develop the facts.
government opposed Chen's petition on several grounds.
First, it argued that Chen had not satisfied her burden of
demonstrating ineffective assistance because she offered
nothing more than a self-serving affidavit. Second, the
government contended any incorrect advice from Goldberger was
cured by Magistrate Judge Maas's warning at the plea
colloquy. Third, it maintained that Chen had not shown the
necessary prejudice because she had not demonstrated that an
alternative course - either a viable defense at trial or an
attainable plea to a lesser offense - could have avoided the
immigration consequences. Last, the government argued that
the petition should be dismissed as untimely because Chen was
on notice of the immigration consequences, at the latest, in
August 2003 after this Court's statements at sentencing -
nearly thirteen years before the petition was filed.
conference held on April 20, 2017, the Court directed the
government to submit a letter informing the Court, based on
the information available, of the viability of any defense
and the likelihood of Chen negotiating a plea deal with less
severe immigration consequences. On May 11, 2017, the
government represented that a review of the case file and a
discussion with the Assistant United States Attorney who
prosecuted the case had revealed no evidence that an
affirmative defense was available or that the government
would have accepted an alternative plea without the same
immigration consequences. [Doc. 46 at 3] The Court also
directed Chen to inform the Court of any specific affirmative
defenses or alternative pleas that she believed might have
been available to her. In response, Chen submitted a letter
on May 11, 2017 noting that her offense would not be defined
by the Immigration and Nationality Act as an aggravated
felony if she had made an affirmative showing that her
offense was for the purpose of assisting, abetting, or aiding
only her own spouse, child, or parent. [Doc. 48 at 2 (citing
INA § 101 (a)(43)(N))].
the April 20, 2017 conference, the Court ordered Goldberger
"to submit an affidavit addressing the allegations of
ineffective assistance of counsel." Doc. 44 at 2. On May
1, 2017, Golberger submitted an affirmation stating that he
"had no recollection of this case" and "no
longer [has] any file in regard to this case as our firm
destroys case files after seven years." Doc. 45 at 1.
Goldberger also stated that he had "no recollection of
any conversation with Pi Yuen Chen, " but it had
"never been [his] practice to advise non-citizen clients
that criminal convictions would not affect their immigration
status." Id. at 1-2.
writ of error coram nobis is an extraordinary
remedy" used to collaterally attack a criminal
conviction that is "typically available only when habeas
relief is unwarranted because the petitioner is no longer in
custody." Kovacs v. United States, 744 F.3d 44,
49 (2d Cir. 2014) (citations omitted). To obtain coram
nobis relief, a petitioner "must demonstrate that
(1) there are circumstances compelling such action to achieve
justice, (2) sound reasons exist for failure to seek
appropriate earlier relief, and (3) the petitioner continues
to suffer legal consequences from his conviction that may be
remedied by granting of the writ." Foont v. United
States, 93 F.3d 76, 79 (2d Cir. 1996) (citations
omitted). "No statute of limitations governs the filing
of a coram nobis petition, " but "the
petitioner must demonstrate sound reasons for any delay in
seeking relief." Kovacs, 744 F.3d at 54.
"The critical inquiry... is whether the petitioner is
able to show justifiable reliance." Foont, 93
F.3d at 79.
have a Sixth Amendment right to counsel, a right that extends
to the plea-bargaining process." Lafler v.
Cooper, 132 S.Ct. 1376, 1384 (2012). Accordingly,
ineffective assistance of counsel during plea bargaining
"is one ground for granting a writ of coram
nobis." Kovacs, 744 F.3d at 49. Under
Strickland v. Washington, a claim for ineffective
assistance requires a showing that (1) counsel's
performance was objectively unreasonable, and (2) the
objectively unreasonable performance prejudiced the
defendant. 466 U.S. 687-88 (1984); see also Hill v.
Lockhart, 474 U.S. 52, 58 (1985) (holding that
Strickland test applies to guilty plea challenges).
"[A]n affirmative misrepresentation by counsel as to the
deportation consequences of a guilty plea ... meets the first
prong of the Strickland test." United
States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002).
the second Strickland prong, the petitioner
"must show there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland, 466 U.S. at 694. In the context of
coram nobis petitions seeking to vacate a conviction
based on mistaken advice from counsel regarding the
immigration consequences of a guilty plea,
Strickland's second prong requires a showing
"that, but for counsel's unprofessional errors,
there was a reasonable probability that the petitioner could
have negotiated a plea that did not impact immigration status
or that he would have litigated an available defense."
Kovacs, 744 F.3d at 52. "'Because a
defendant has no right to be offered a plea, ' the
ultimate outcome ...