     Case: 11-40256     Document: 00511899670         Page: 1     Date Filed: 06/26/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 26, 2012

                                       No. 11-40256                        Lyle W. Cayce
                                                                                Clerk

NOELIA TANGUMA MARROQUIN,

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:10-CV-156


Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Noelia Tanguma-Marroquin petitioned the district
court for writ of coram nobis, alleging ineffective assistance of counsel and
seeking to vacate her criminal conviction for one count of transporting an
undocumented alien for financial gain. The district court denied the petition,
finding that Appellant had failed to demonstrate prejudice under Strickland v.
Washington, 466 U.S. 668 (1984). We affirm.



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       No. 11-40256
                                              I
       Appellant pled guilty by written plea agreement to one count of
transporting an illegal alien within the United States for financial gain in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii). The district court sentenced Appellant
to serve ten months in the United States Bureau of Prisons, with no term of
supervised release. Appellant did not appeal the judgment or move to vacate,
set aside, or correct the sentence under 28 U.S.C. § 2255. Upon her release,
United States Immigration and Customs Enforcement (“ICE”) immediately took
custody of Appellant, pursuant to an outstanding immigration detainer. While
in ICE custody, Appellant filed a petition for writ of coram nobis.1 Appellant
alleged (1) that the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct.
1473 (2010), applied retroactively to her petition, and her counsel therefore had
a constitutional obligation to inform her regarding potential deportation
consequences of a guilty plea; and (2) that her counsel failed to so inform her,
constituting prejudice under Strickland.
       The district court agreed with Appellant that Padilla applied retroactively
to her case, but concluded that she had not met her burden under Strickland.
First, the district court concluded that Appellant’s counsel demonstrated at
sentencing that he was aware of the immigration consequences of her guilty
plea, consistent with a presumption “that counsel satisfied [his] obligation to
render competent advice at the time [his] client[ ] considered pleading guilty.”
Padilla, 130 S. Ct. at 1485 (citing Strickland, 446 U.S. at 689). Second, the
district court concluded that, even if counsel failed to inform her of potential



       1
         “In 1954, the Supreme Court's decision in United States v. Morgan, 346 U.S. 502
(1954), revived the ancient writ of coram nobis by holding that the writ was available in
federal courts pursuant to the All Writs Act, 28 U.S.C. § 1651(a). Since that time the writ has
been used as an avenue of collateral attack when the petitioner has completed his sentence
and is no longer ‘in custody’ for purposes of seeking relief under either 28 U.S.C. § 2241 or §
2255.” United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998).

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                                  No. 11-40256
deportation, Appellant did not suffer prejudice because the sentencing court
advised her of the risk of deportation at rearraignment.
      On appeal, Appellant (1) contends that the district court should have
granted coram nobis relief without requiring her to meet Strickland’s two prong
test; (2) reasserts her argument that Padilla applies retroactively to her petition;
(3) argues that the district court did not automatically cure any prejudice by its
advisals regarding deportation; and (4) requests that this court remand to the
district court to for an evidentiary hearing.
      In reviewing a district court’s denial of a petition for writ of coram nobis,
this court reviews factual findings for clear error, questions of law de novo, and
the ultimate decision to deny the writ for abuse of discretion. Santos-Sanchez
v. United States, 548 F.3d 327, 330 (5th Cir. 2008)
                                        II
      Appellant first contends that the district court should not have required
her to meet Strickland’s two prong test because her counsel failed to subject the
prosecution’s case to any meaningful adversarial testing. See United States v.
Cronic, 466 U.S. 648, 659 (1984) (holding that counsel’s failure to subject
prosecution’s case to adversarial testing amounts to constructive denial of
counsel, and a reviewing court should not require petitioner to show prejudice);
Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998) (holding that “the
constructive-denial claim is a very narrow exception to the Strickland prejudice
requirement”).    However, Appellant only urged the district court to apply
Strickland, and she makes the “constructive denial” argument for the first time
on appeal. We therefore decline to address it. See Flores-Garza v. I.N.S., 328
F.3d 797, 804 n.7 (5th Cir. 2003) (“It is       well established that this court
ordinarily does not consider issues raised by the appellant for the first time on
appeal.”).



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                                         No. 11-40256
       Appellant also reasserts that Padilla applies retroactively. However, this
argument has been squarely foreclosed by a published decision of this court in
the time since this appeal was filed. In United States v. Amer, --- F.3d ----, 2012
WL 1621005, *3 (5th Cir. May 9, 2012), this court held, as a matter of first
impression, that “the rule announced in Padilla is ‘new’ . . . and accordingly, it
does not apply retroactively . . . .”2
       Appellant’s remaining arguments (that the district court’s advisals did not
cure Strickland prejudice and that the district court should have conducted an
evidentiary hearing to determine whether counsel advised her on deportation)
also depend on Padilla and are therefore infirm.
                                               III
       Appellant’s aforementioned arguments do not demonstrate that the
district court abused its discretion in denying her petition for writ of coram
nobis. We AFFIRM.




       2
         On this question, circuit courts are split, and a petition for certiorari is presently
pending before the Supreme Court. Compare United States v. Orocio, 645 F.3d 630 (3d Cir.
2011) (holding that Padilla applies retroactively), with United States v. Hong, --- F.3d ----, 2011
WL 3805763 (10th Cir. Aug. 30, 2011), and Chaidez v. United States, 655 F.3d 684 (7th Cir.
2011), cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No. 11-820).

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                                   No. 11-40256
DENNIS, Circuit Judge, specially concurring:
      I concur in affirming the district court’s denial of Noelia Tanguma-
Marroquin’s petition for coram nobis relief because that outcome is dictated by
this court’s recent holding that the Supreme Court’s decision in Padilla v.
Kentucky, 130 S. Ct. 1473 (2010), “does not apply retroactively and may not serve
as the basis for [a] collateral challenge to [a] conviction that had already become
final when Padilla was decided.” United States v. Amer, --- F.3d ----, 2012 WL
1621005, at *3 (5th Cir. May 9, 2012). We are bound to follow Amer unless and
until the Supreme Court reaches a contrary conclusion. See Chaidez v. United
States, 132 S. Ct. 2101 (2012) (granting certiorari on the retroactivity question).
      I write separately to express my thoughts on the prejudice issue in the
event we are required to address it in the future should this case return to us.
                                         I.
      “Defendants have a Sixth Amendment right to counsel, a right that
extends to the plea bargaining process. During plea negotiations defendants are
‘entitled to the effective assistance of competent counsel.’” Lafler v. Cooper, 132
S. Ct. 1376, 1384 (2012) (citations omitted) (quoting McMann v. Richardson, 397
U.S. 759, 771 (1970)) (citing Missouri v. Frye, 132 S. Ct. 1399 (2012); Padilla v.
Kentucky, 130 S. Ct. 1473, 1486 (2010)); Hill v. Lockhart, 474 U.S. 52, 54 (1985)).
The right to effective representation during the plea process requires defense
counsel to take adequate steps to “‘[p]reserv[e] [a noncitizen defendant’s] right
to remain in the United States’” and “‘preserv[e] the possibility of’ discretionary
relief from deportation.” Padilla, 130 S. Ct. at 1483 (quoting INS v. St. Cyr, 533
U.S. 289, 323 (2001)); see also id. at 1485 (“For at least the past 15 years,
professional norms have generally imposed an obligation on counsel to provide
advice on the deportation consequences of a client’s plea.”). The familiar two-
pronged ineffective assistance analysis set forth in Strickland v. Washington,
466 U.S. 668 (1984), applies to alleged violations of this right. Padilla, 130 S. Ct.

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                                   No. 11-40256
at 1482. Strickland’s prejudice prong “ask[s] whether ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at 688,
694).
        The district court reasoned that a court can erase the prejudice resulting
from a defense attorney’s failure to competently advise a noncitizen defendant
during the plea process merely by stating at the plea entry proceeding that a
guilty plea felony conviction would result in deportation. I find this rationale
deeply flawed. The negotiation of a plea bargain is a critical phase of litigation
for purposes of the Sixth Amendment right to effective assistance of counsel.
Padilla, 130 S. Ct. at 1486 (citing Hill, 474 U.S. at 57; Richardson, 397 U.S. at
770-71)). Thus, whether a petitioner is entitled to relief on the claim that
defense counsel failed to advise her that the offered plea would result in
automatic deportation turns on whether prejudice resulted from counsel’s
performance during the plea negotiation process, id. at 1482, and cannot be
measured by a judge’s performance in accepting the defendant’s guilty plea as
voluntary, see Frye, 132 S. Ct. at 1406.
                                        II.
        In a series of decisions culminating in Padilla, Lafler and Frye, the
Supreme Court has made clear that “plea bargains have become so central to the
administration of the criminal justice system that defense counsel have
responsibilities in the plea bargain process[] . . . that must be met to render the
adequate assistance of counsel that the Sixth Amendment requires in the
criminal process at critical stages.” Frye, 132 S. Ct. at 1407. “Indeed, this
Circuit has observed that providing counsel to assist a defendant in deciding
whether to plead guilty is ‘[o]ne of the most precious applications of the Sixth
Amendment.’” United States v. Rivas-Lopez, --- F.3d ----, 2012 WL 1326676, at



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                                      No. 11-40256
*2 (5th Cir. Apr. 18, 2012) (alteration in original) (quoting United States v.
Grammas, 376 F.3d 433, 436 (5th Cir. 2004)).
       Given the paramount importance of effective representation during the
plea bargaining process, it is difficult to see how a violation of that right can be
erased by a trial court’s general and talismanic plea colloquy statement after
that bargaining process is complete, and immediately prior to the court’s
acceptance of the guilty plea. If, as the Supreme Court held in Frye, the holding
of a fair trial cannot “inoculate [counsel’s] errors in the pretrial process” from
collateral attack under Strickland, see Frye, 132 S. Ct. at 1407, neither can a
trial judge’s plea colloquy warnings. Nor can a colloquy that assures only the
minimal voluntariness of a plea serve as a proxy for effective assistance during
the plea bargaining process, a process which necessarily precedes the defendant’s
decision whether or not to accept a plea. Indeed, as the Court reiterated in Frye,
it has “rejected the argument . . . that a knowing and voluntary plea supersedes
errors by defense counsel.” Id. at 1406.
           The Supreme Court has long contrasted the unique and critical
obligations of defense counsel during the plea bargaining process with the far
more limited role of the trial court to ensure a minimally valid guilty plea.
“[C]ounsel’s function as assistant to the defendant [gives rise to] the overarching
duty to advocate the defendant’s cause and the more particular duties to consult
with the defendant on important decisions” after “mak[ing] reasonable
investigations.” Strickland, 466 U.S. at 688, 691. Counsel has “the critical
obligation . . . to advise the client of ‘the advantages and disadvantages of a plea
agreement.’” Padilla, 130 S. Ct. at 1484 (quoting Libretti v. United States, 516
U.S. 29, 50-51 (1995)).1         Thus, the Padilla court stressed that “[i]t is

       1
        See also ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-3.2(b) (3d
ed. 1999) (“To aid the defendant in reaching a decision, defense counsel, after appropriate
investigation, should advise the defendant of the alternatives available and address
considerations deemed important by defense counsel and the defendant in reaching a decision.

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                                        No. 11-40256
quintessentially the obligation of counsel to provide her client with available
advice about an issue like deportation.” Id. at 1484 (emphasis added).
       Accordingly, the judicial plea colloquy is no remedy for counsel’s deficient
performance in fulfilling these obligations. The colloquy merely “assist[s] the
district judge in making the constitutionally required determination that a
defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S.
459, 465 (1969).2 Moreover, because a judge “cannot investigate the facts[] . . .
or participate in those necessary conferences between counsel and accused which
sometimes partake of the inviolable character of the confessional,” a judge
cannot “discharge the obligations of counsel for the accused.” Powell v. Alabama,
287 U.S. 45, 61 (1932). Indeed, Rule 11 mandates that “the court must not
participate in [plea] discussions.” Fed. R. Crim. P. 11(c)(1).
       These differences between the role of the court and the duties of effective
counsel explain the essential distinction between the Fifth Amendment plea
voluntariness analysis and the Sixth Amendment ineffective assistance analysis.
See Lafler, 132 S. Ct. at 1390 (“An inquiry into whether the rejection of a plea
is knowing and voluntary, . . . is not the correct means by which to address a
claim of ineffective assistance of counsel.”); Libretti, 516 U.S. at 50-51 (“Apart
from the small class of rights that require specific advice from the court under
Rule 11[,] it is the responsibility of defense counsel to inform a defendant of the


Defense counsel should not recommend to a defendant acceptance of a plea unless appropriate
investigation and study of the case has been completed.”); id. Standard 14-3.2(f) (“To the
extent possible, defense counsel should determine and advise the defendant, sufficiently in
advance of the entry of any plea, as to the possible collateral consequences that might ensue
from entry of the contemplated plea.”).
       2
            See also United States v. Ruiz, 536 U.S. 622, 630 (2002) (“[T]he Constitution[] . . .
permits a court to accept a guilty plea, with its accompanying waiver of various constitutional
rights, despite various forms of misapprehension under which a defendant might labor.”);
United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (“To be knowing and intelligent,
. . . [t]he defendant need only understand the direct consequences of the plea; he need not be
made aware every consequence . . . .”).

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                                      No. 11-40256
advantages and disadvantages of a plea agreement and the attendant statutory
and constitutional rights that a guilty plea would forgo. . . . ‘[A] failure by
counsel to provide advice may form the basis of a claim of ineffective assistance
of counsel, but absent such a claim it cannot serve as the predicate for setting
aside a valid plea.’” (first alteration in original) (quoting United States v. Broce,
488 U.S. 563, 574 (1989)). As the Supreme Court explained in Frye, although
“plea entry proceedings [provide] the trial court and all counsel [with] the
opportunity to establish on the record that the defendant understands . . . the
advantages and disadvantages of accepting [a plea offer], . . . Padilla illustrate[s]
. . . [that] claims of ineffective assistance can arise after the conviction is
entered.” Frye, 132 S. Ct. at 1406 (citations omitted).
       Indeed, the conclusion that a trial court’s deportation warnings do not
foreclose a showing of prejudice is confirmed by the Padilla Court’s own
discussion of such warnings. The Court specifically recognized that defendants
in many jurisdictions receive generalized deportation warnings on plea forms or
at plea colloquys, much as Tanguma-Marroquin did here. Padilla, 130 S. Ct. at
1486 n.15. However, the Court never intimated that such warnings could prove
fatal to ineffectiveness claims, despite the fact that Padilla himself had received
such a warning on his Kentucky plea form.3 To the contrary, the Court cited
such practices in support of its conclusion that “[t]he severity of deportation —
‘the equivalent of banishment or exile’ — only underscores how critical it is for
counsel to inform her noncitizen client that he faces a risk of deportation.” Id.
at 1486 (emphasis added).
       Furthermore, counsel’s responsibilities in the plea bargain process extend
beyond warning the client of the disadvantages of an offered plea. See Frye, 132


       3
         Cf., e.g., Berghuis v. Thompkins, 130 S. Ct. 2250, 2265 (2010) (concluding that
petitioner’s Strickland claim fails because, assuming counsel’s representation was deficient,
petitioner “cannot show prejudice”); Smith v. Spisak, 130 S. Ct. 676, 685-87 (2010) (same).

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                                       No. 11-40256
S. Ct. at 1407-08; Padilla, 130 S. Ct. at 1486.                The Supreme Court has
repeatedly “recognized that ‘[p]reserving the client’s right to remain in the
United States may be more important to the client than any potential jail
sentence.’” Id. at 1483 (alteration in original) (quoting INS v. St. Cyr., 533 U.S.
289, 323 (2001)). “The potential to conserve valuable prosecutorial resources and
for defendants to admit their crimes and receive more favorable terms at
sentencing means that a plea agreement can benefit both parties.” Frye, 132 S.
Ct. at 1407. “Counsel who possess the most rudimentary understanding of the
deportation consequences of a particular criminal offense may be able to plea
bargain creatively with the prosecutor in order to craft a conviction and sentence
that reduce the likelihood of deportation, as by avoiding a conviction for an
offense that automatically triggers the removal consequence.” Padilla, 130 S.
Ct. at 1486; see Vartelas v. Holder, 132 S. Ct. 1479, 1492 n.10 (2012) (“Armed
with knowledge that a guilty plea would preclude travel abroad, alien[]
[defendants] might endeavor to negotiate a plea to a nonexcludable
offense . . . .”).4 “In order that these benefits can be realized, however, criminal
defendants require effective counsel during plea negotiations. Anything less . . .
might deny a defendant effective representation by counsel at the only stage
when legal aid and advice would help him.”                Frye, 132 S. Ct. at 1407-08
(alteration in original) (internal quotation marks omitted)).5 This is particularly




       4
        See also, e.g., Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) (discussing a
plea agreement in which “[t]he state secured convictions on the charges that are punished
more harshly under state law without incurring the expense and hassle of a trial” and the
defendant “agreed to plead guilty to a charge that, although more serious, had a smaller
chance of causing adverse immigration consequences”).
       5
        See also Frye, 132 S. Ct. at 1412 (Scalia, J., dissenting) (explaining that “counsel’s
plea-bargaining skills[] . . . must . . . meet a constitutional minimum”).

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                                        No. 11-40256
true when a plea renders a noncitizen statutorily ineligible for discretionary
relief from deportation.6
       These recognized, affirmative benefits of representation by competent
counsel bear on the prejudice issue because, in order to establish prejudice
resulting from ineffective assistance during the plea bargaining process, “a
defendant must show the outcome of the plea process would have been different.”
Lafler, 132 S. Ct. at 1384. In many cases, this will not require a showing that
the defendant “would have insisted on going to trial.” Frye, 132 S. Ct. at 1409-
10.7 It follows that a defendant may establish prejudice by demonstrating a
reasonable probability that counsel’s failure to negotiate on the basis of an even
“rudimentary understanding of the deportation consequences of a particular
criminal offense” deprived the defendant of an opportunity to plead to “a
conviction for an offense that [does not] automatically trigger[]” deportation. See
Padilla, 130 S. Ct. at 1486.
       Finally, and perhaps most importantly, by the time the plea colloquy
occurs, the plea bargaining process is over — and with it, defense counsel’s
opportunity to negotiate and advise the client based on an adequate
understanding of deportation consequences. Counsel is obligated to effectively
investigate and advise her client regarding immigration consequences “[b]efore
[the client] decid[es] whether to plead guilty,” a decision made before the judicial
plea colloquy occurs. See Padilla, 130 S. Ct. at 1480-81 (emphasis added); id. at

       6
         See 8 U.S.C. § 1229b(a)(3) (providing that a lawful permanent resident “convicted of
an aggravated felony” is ineligible for cancellation of removal); see also Hodge v. U.S. Dep’t of
Justice, 929 F.2d 153, 158 (5th Cir. 1991) (noting that “8 U.S.C. § 1362 . . . precludes the right
to appointed counsel in deportation proceedings” (emphasis omitted)).
       7
         “In cases [such as Hill] where a defendant complains that ineffective assistance led
him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show
‘a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.’ . . . Hill does not, however, provide the sole means for
demonstrating prejudice arising from the deficient performance of counsel during plea
negotiations.” Frye, 132 S. Ct. at 1409-10 (quoting Hill, 474 U.S. at 59).

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                                         No. 11-40256
1486 (“[I]nformed consideration of possible deportation can only benefit both the
State and noncitizen defendants during the plea-bargaining process.                            By
bringing deportation consequences into this process, the defense and prosecution
may well be able to reach agreements that better satisfy the interests of both
parties.” (emphasis added)).8 That a defendant, who has already signed a plea
agreement upon counsel’s advice, is told by the trial judge that the plea will
result in deportation simply does not bear on the relevant question of “whether
counsel’s constitutionally ineffective performance affected the outcome of the
plea process.” Hill, 474 U.S. at 59. Because “an intelligent assessment of the
relative advantages of pleading guilty is frequently impossible without the
assistance of an attorney,” Brady v. United States, 397 U.S. 742, 748 n.6 (1970),
a noncitizen defendant cannot reasonably be expected to reassess the advantages
and disadvantages of a plea that her attorney has advised her to take based on
information regarding deportation disclosed for the first time at the plea
colloquy. See Padilla, 130 S. Ct. at 1484 (stating that noncitizens are “a class of
clients least able to represent themselves”).
       In sum, trial judges cannot, and should not attempt to, take over defense
counsel’s distinctive and critical obligation to give constitutionally adequate
advice regarding the issue of deportation during the plea bargaining process.
See Fed. R. Crim. P. 11(c)(1); Libretti, 516 U.S. at 50. If counsel fails in that
“quintessential[] . . . duty,” Padilla, 130 S. Ct. at 1484, and the defendant
consequently accepts a plea that mandates deportation, the damage has been
done by the time the defendant appears before the court to formally enter the
plea. It seems to me obvious that no last minute, one-size-fits-all judicial



       8
         Cf. United States v. Orocio, 645 F.3d 630, 646 (3d Cir. 2011) (explaining that a trial
court advisal at sentencing did not “mitigate any prejudice” because it occurred “too late in the
process . . . to effectively alert [the defendant] to the severe removal consequences of his guilty
plea”).

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                                      No. 11-40256
warning can adequately serve as a surrogate for effective counsel during the plea
bargaining process. It is simply too little too late.
                                           III.
       “[T]he impact of a general court-advisal on the prejudice inquiry” is one of
the “major issues [to] have emerged consistently in state . . . and federal . . .
courts” since Padilla was decided.9           The district court’s approach to this
important issue is contrary to the Supreme Court’s precedents applying
Strickland in the plea bargaining context, and would pretermit “claims . . . with
substantial merit” brought by “a class of clients least able to represent
themselves,” in abdication of the courts’ “responsibility under the Constitution
to ensure that no defendant — whether a citizen or not — is left to the mercies
of incompetent counsel.” Padilla, 130 S. Ct. at 1484, 1486.




       9
        Lindsay C. Nash, Considering the Scope of Advisal Duties Under Padilla, 33 Cardozo
L. Rev. 549, 552 & n.8 (2011) (citing People v. Garcia, 907 N.Y.S.2d 398, 407 (N.Y. Sup. Ct.
2010), and Tanguma Marroquin v. United States, Civ. No. M-10-156, 2011 WL 488985 (S.D.
Tex. Feb. 4, 2011)).

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