United States v. Chan

Affirmative misrepresentations by defense counsel regarding immigration consequences can support an ineffective assistance of counsel claim.

In 1993, Maureen Elaine Chan, also known as Maureen Ridley, was charged with six counts of perjury. Chan consulted with her attorney and inquired as to whether a guilty plea would affect her immigration status. Chan’s attorney assured her that pleading guilty would have no negative repercussions. Subsequently, Chan plead guilty. In 2012, U.S. Customs and border patrol stopped Chan. Later that year, removal proceedings against Chan began. In May of 2013, Chan brought a petition of error coram nobis in the district court to withdraw her guilty plea. The district court granted the government’s motion to dismiss based on the conclusion that Kwan established a new rule of criminal procedure under Teague, and did not have a retroactive effect. On appeal, the Ninth Circuit concluded that Padilla did not abrogate Kwan. The panel reasoned that Padilla was narrower than Kwan and that holding affirmative misrepresentations by counsel constitutes deficient performance under Strickland. Next, the panel concluded that Kwan was not controlled by Chaidez. The panel reasoned that Chaidez focused primarily on the issue of the Sixth Amendment in Padilla, but that analysis was absent in Kwan. The panel then proceeded to analyze Kwan under Teague. The panel concluded that Kwan did not create a new rule under Teague reasoning that under Padilla and Chaidez the courts found that affirmative representations regarding immigration consequences were not the creation of a new rule. The panel further reasoned that there was ample federal support for the Kwan rule. No case prior to 2000 was needed as support because Kwan merely asserts an age-old principle that attorneys can be liable for affirmatively misadvising their clients. REVERSED and REMANDED.