NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 13 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-35170
Plaintiff - Appellee, D.C. Nos. 2:11-cv-00127-FVS
2:02-cr-00221-FVS
v.
HYUN JU LEE, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted February 5, 2014**
Seattle, Washington
Before: FISHER, GOULD and CHRISTEN, Circuit Judges.
Hyun Ju Lee appeals the district court’s order denying her petition for a writ
of coram nobis. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and
remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lee concedes that she is not entitled to relief under Padilla v. Kentucky, 559
U.S. 356 (2010), because Padilla does not apply retroactively to her case. See
Chaidez v. United States, 133 S. Ct. 1103 (2013). She contends, however, that she
is entitled to relief under United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005),
abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010). The
government has raised no procedural objections to Lee’s reliance on Kwan.
To obtain relief under Kwan, Lee must show: (1) that “counsel has not
merely failed to inform, but has effectively misled, his client about the immigration
consequences of a conviction,” id. at 1015; and (2) “‘there is a reasonable
probability that, but for counsel’s errors, [s]he would not have pleaded guilty and
would have insisted on going to trial,’” Smith v. Mahoney, 611 F.3d 978, 986 (9th
Cir. 2010) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). The district court
found the second of these requirements satisfied here, finding that “Ms. Lee would
not have accepted the plea agreement that was offered by the government had she
clearly understood a plea of guilty would result in her removal from the United
States.” As this finding is not clearly erroneous, we sustain it on appeal. See
Leavitt v. Arave, 646 F.3d 605, 608 (9th Cir. 2011). Because the court was focused
on the Padilla standard rather than the Kwan standard, however, the court made no
finding as to whether Lee satisfied the first requirement. Accordingly, we vacate
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the district court’s order denying the writ and remand for the district court to
address whether Lee can satisfy the deficient performance prong under Kwan. We
leave it to the district court’s discretion whether to make this finding on the
existing record or to consider additional evidence.
Each party shall bear its own costs on appeal.
VACATED AND REMANDED.
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