                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            AUG 04 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 15-16334

              Plaintiff - Appellee,              D.C. No. 1:15-cv-00072-DKW-BMK
                                                          1:13-cr-01065-DKW-12
 v.

SUN HWANG, AKA Sunny,                            MEMORANDUM*

              Defendant - Appellant.

                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

                        Argued and Submitted June 14, 2016
                                Honolulu, Hawaii

Before: THOMAS, Chief Judge and CALLAHAN and MURGUIA, Circuit Judges.

      Sun Hwang appeals the district court’s denial of her motion for relief under

28 U.S.C. § 2255. We reverse.

      We review a district court’s denial of relief under 28 U.S.C. § 2255 de novo.

United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Hwang pled guilty to aiding and abetting an illegal gambling enterprise in

violation of 18 U.S.C. § 1955. Before Hwang pled guilty, her lawyer contacted

two immigration attorneys to determine the immigration consequences of a guilty

plea. One attorney told Hwang’s lawyer that a guilty plea under § 1955 would

invariably result in removal, with no option for discretionary relief. The other

attorney believed that Hwang would be eligible for discretionary relief. Hwang’s

lawyer conveyed both viewpoints to Hwang, but he did not say which viewpoint he

believed to be correct. Rather, in his words, he “never gave Ms. Hwang any

immigration advice in regard to her case.” Hwang pled guilty without a plea

agreement and was later sentenced to three years of probation.

      After sentencing, the Department of Homeland Security initiated removal

proceedings. An immigration judge determined that Hwang had been convicted of

an aggravated felony, requiring removal and rendering Hwang ineligible for

discretionary relief. Hwang brought a motion under 28 U.S.C. § 2255 to set aside

her guilty plea, alleging ineffective assistance of counsel under Padilla v.

Kentucky, 559 U.S. 356 (2010). She alleges that she would not have pled guilty if

her lawyer had correctly advised her of the immigration consequences of doing so.




                                           2
                                             I

       “Before deciding whether to plead guilty, a defendant is entitled to ‘the

effective assistance of competent counsel.’” Padilla, 559 U.S. at 364 (quoting

McMann v. Richardson, 397 U.S. 759, 771 (1970)). To succeed on an ineffective

assistance of counsel claim, “the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. 668, 689 (1984). In addition, “[t]he defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694.

       When a criminal defendant is not a citizen, attorneys have a duty to inform

their clients of the immigration consequences of a guilty plea. Padilla, 559 U.S. at

368. To comply with the Sixth Amendment, attorneys must “advise a noncitizen

client that pending criminal charges may carry a risk of adverse immigration

consequences” when the immigration “consequences of a particular plea are

unclear or uncertain.” Id. at 369. “But when the deportation consequence is truly

clear . . . the duty to give correct advice is equally clear.” Id.

       Here, the immigration consequences of the guilty plea were clear. A

conviction under to 8 U.S.C. § 1955 is defined as an “aggravated felony” pursuant

to 8 U.S.C. § 1101(a)(43)(J). An alien convicted of an aggravated felony is


                                            3
“conclusively presumed” to be removable under immigration law. 8 U.S.C.

§ 1228(c). A noncitizen convicted of an aggravated felony is not eligible for

cancellation of removal. 8 U.S.C. § 1229b(a)(3). Thus, under Padilla, Hwang’s

attorney was obligated to provide her with correct advice regarding the

immigration consequences of her plea. 559 U.S. at 368-69.

      Because Hwang was not informed of the immigration consequences of her

plea when those consequences were clear, Hwang did not receive constitutionally

effective assistance of counsel under the requirements set forth in Padilla. As in

Padilla, “the terms of the relevant immigration statute[s] are succinct, clear, and

explicit in defining the removal consequence for [Hwang]’s conviction.” 559 U.S.

at 368. “The consequences of [Hwang’s] plea could easily be determined from

reading the removal statute, [her] deportation was presumptively mandatory, and

[her] counsel’s advice was” not correct. Id. at 369. Therefore, Hwang has

demonstrated that her counsel’s performance was objectively unreasonable. See

Strickland, 466 U.S. at 687-88.

      We reject the claim that Hwang’s attorney provided effective assistance by

furnishing Hwang with conflicting advice, some which was correct. When the

immigration consequences of a plea are truly clear, an attorney does not satisfy




                                           4
Padilla by providing the client with a series of conflicting propositions–some true,

others not. Conflicting advice is not correct advice.

                                           II

      Hwang has also established that she was prejudiced by her attorney’s

incorrect advice. Hwang explains that, had she been made aware of the deportation

consequences of a guilty plea, she would not have pled guilty. Hwang explains

that she placed a significant emphasis on the immigration consequences of a

conviction: she asked her attorney repeatedly about the immigration consequences

of her case, and she sought further clarity on the effect of a guilty plea by seeking

the advice of immigration specialists. Hwang says that if her attorney had

provided correct advice, she would not have pled guilty. Under our precedent in

United States v. Kwan, this is sufficient to establish prejudice under the second

prong of Strickland. 407 F.3d 1005, 1017-18 (9th Cir. 2005) (determining there

was Strickland prejudice where a noncitizen defendant demonstrated that he placed

a “particular emphasis” on the immigration consequences of a plea), abrogated on

other grounds by Padilla, 559 U.S. 356; see United States v. Chan, 792 F.3d 1151,

1154 (9th Cir. 2015) (concluding that Kwan survives Padilla in relevant part).




                                           5
      For the foregoing reasons, we conclude that Hwang has established her

claim of ineffective assistance of counsel under Strickland. Accordingly, we

vacate the conviction and remand to the district court.

      REVERSED AND REMANDED.




                                          6
                                                                              FILED
United States v. Sun Hwang, No. 15-16334
                                                                              AUG 04 2016
CALLAHAN, Circuit Judge, dissenting:                                      MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


       I respectfully dissent. I do not read Padilla v. Kentucky, 559 U.S. 356

(2010), as altering the two-prong standard for measuring ineffective assistance of

counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the

defendant must show that counsel’s performance was deficient . . . and [s]econd,

the defendant must show that the deficient performance prejudiced the defense.”

Id. at 686.

       Hwang’s attorney, not being well-versed in immigration law, sought and

obtained the advice of not one, but two immigration lawyers, and passed their

advice on to Hwang. It is not clear what more counsel should have done.

       The Supreme Court instructs that “[j]udical scrutiny of counsel’s

performance must be highly deferential,” we must make “every effort be made to

eliminate the distorting effects of hindsight,” and “judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case, viewed as of the

time of counsel’s conduct.” Id. at 689–90. Properly viewed, Hwang has not

shown that her attorney’s performance was deficient.

       Certainly, the Supreme Court in Padilla stated that “when the deportation

consequence is truly clear, as it was in this case, the duty to give correct advice is

equally clear.” 559 U.S. at 369. But I do not read this as creating the equivalent of
strict liability whenever, in hindsight, the deportation consequences are “clear.”

Rather, we must continue to apply the approach set forth in Strickland. We must

first determine whether counsel’s performance was deficient. The clarity of the

immigration consequences is obviously a factor in that determination, but it is

neither inherently compelling nor a substitute for the determination of deficiency.

Here, Hwang’s counsel did not leave her without information. He made sure she

understood that one immigration attorney thought that there were adverse

immigration consequences from pleading guilty, but that another thought she might

be eligible for discretionary relief.

         Hwang’s counsel should be complimented for his efforts to provide her with

information from alleged experts in immigration law. The subsequent

determinations that one immigration attorney’s advice was wrong and that the

adverse immigration consequences now seem “clear” do not, in my opinion, render

the criminal defense attorney’s performance deficient. I would affirm the district

court.
