                           NOT FOR PUBLICATION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


                                          2
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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