                   REVISED FEBRUARY 29, 2012

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

                                                                 FILED
                                No. 09-20764                   February 24, 2012

                                                                Lyle W. Cayce
                                                                     Clerk
UNITED STATES OF AMERICA

                                          Plaintiff-Appellee
v.


LUIS FERNANDO JUAREZ, also known as Luis Fernandez Juarez

                                          Defendant-Appellant



                Appeal from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
GRAVES, Circuit Judge:
      The defendant-appellant (Juarez) appeals the district court’s decision on
his ineffective assistance of counsel claim.      Juarez’s counsel failed to
independently research and investigate the derivative citizenship defense.
Citizenship is a defense to the alienage element of both crimes to which Juarez
pled guilty. Juarez claims that his counsel’s performance was deficient and
prejudicial when counsel advised him to enter guilty pleas without consulting
available jurisprudence to make an informed or competent decision. For the
following reasons, we REVERSE and REMAND.
                                        No. 09-20764


                            Facts and Procedural History
       Juarez pled guilty to lying about his U.S. citizenship on a Firearms
Transaction Record form which he completed while attempting to purchase a
handgun in Houston, Texas in violation of 18 U.S.C. § 911.1 He also pled guilty
to illegal re-entry into the United States after deportation following a conviction
for an aggravated felony in violation of 8 U.S.C. § 1326(a) & (b)(2). On March 20,
2006, a Federal Public Defender was appointed to represent Juarez but on April
11, 2006, that counsel was replaced by Lazaro J. Izaguirre (Izaguirre). On May
12, 2006, Juarez pled guilty to the two offenses mentioned above and was
sentenced to thirty-six months on the first count and forty-two months on the
second count to run concurrently. On September 20, 2007, Juarez filed a timely
pro se motion for post conviction relief under 28 U.S.C. § 2255, alleging
ineffective assistance of counsel for failing to recognize, investigate, and assert
a derivative citizenship defense to the crimes charged. He also contended that
his guilty pleas were unknowing and involuntary because of his counsel’s
deficient performance. The magistrate judge then appointed a Federal Public
Defender to represent Juarez. The court held an evidentiary hearing on June
1 and 17, 2009. Juarez contended that he derived U.S. citizenship through his
mother under 8 U.S.C. § 1432(a) (1999), and therefore he had a valid defense to
both offenses. Alienage is an essential element of the crimes to which Juarez
pled guilty. Had he known of the derivative citizenship defense, Juarez argues,
he would not have pled guilty. The magistrate judge recommended that relief
be denied on September 15, 2009. Juarez objected to the magistrate judge’s




       1
         18 U.S.C. § 911 states: “Whoever falsely and willfully represents himself to be a citizen
of the United States shall be fined under this title or imprisoned not more than three years,
or both.”

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                                 No. 09-20764

determination.    The district court adopted in full the magistrate judge’s
recommendation on October 30, 2009.
      Juarez was born in Mexico in February, 1983. He entered the United
States in 1989 with his mother. Juarez’s mother applied for voluntary departure
and employment authorization for Juarez on July 3, 1990, and it was approved
for the period of March, 1991 to March, 1992. She also applied for Family Union
Benefits for Juarez on October 25, 1992, and that request was denied. Juarez’s
mother also filed an I-130 Petition for Alien Relative on Juarez’s behalf, and it
was never ruled upon. On June 18, 1999, Juarez’s mother became a naturalized
U.S. citizen. In December, 1999, Juarez married Misty Jo Quiles, a U.S. citizen.
On January 7, 2001, while he was married but still under eighteen years-old, he
filed an I-485 (Application to Register Permanent Resident or Adjust Status).
Quiles also filed an I-130 petition for Juarez. On August 1, 2002, at the age of
eighteen, Juarez was convicted for possession of cocaine and sentenced to ninety-
days imprisonment. On September 25, 2002, the Immigration Naturalization
Service (INS) issued a final order for Juarez, deporting him to Mexico on October
12, 2002. Juarez lived “permanently” in the United States from 1989-2002.
After deportation, Juarez was found present in the United States in April, 2005,
when, in an attempt to purchase a firearm, he represented that he was a U.S.
citizen.
      Juarez claims he first learned the possibility of his derivative U.S.
citizenship through his mother’s naturalization in August, 2007. Izaguirre,
Juarez’s trial counsel, knew that Juarez’s mother had become a naturalized
citizen. But he testified in court that he never knew or heard of the derivative
citizenship defense until Juarez filed his § 2255 motion. He also claimed that he
did not know that Juarez could be a U.S. citizen as other people did not inform
him of this possibility. When asked in court what would he have done had he
heard of the derivative citizenship defense earlier, Izaguirre testified that he


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                                   No. 09-20764

“would’ve made a motion to withdraw the [guilty] plea...that we made a mistake.
This man is an American citizen.”
                              Standard of Review
      In reviewing the district court’s decision on a motion under 28 U.S.C.
§ 2255, this court reviews questions of fact for clear error and questions of law
de novo. United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999). This court
reviews a district court’s conclusions with regard to a petitioner’s § 2255 claim
of ineffective assistance of counsel de novo. United States v. Molina-Uribe, 429
F.3d 514, 518 (5th Cir. 2005).
                                    Discussion
Ineffective Assistance of Counsel
      Had Izaguirre investigated the citizenship issue and advised on the
potential defense, Juarez contends, he would not have entered guilty pleas.
The district court determined that Juarez had no legal status at the time of his
mother’s naturalization and could not be considered for derivative citizenship.
It also found that Juarez’s counsel was not ineffective for failing to raise the
derivative citizenship defense because Juarez lacked legal permanent resident
(LPR) status in the United States.
      Strickland v. Washington, 466 U.S. 668 (1984) governs the ineffective
assistance of counsel analysis. First, Juarez must demonstrate that his trial
counsel’s performance was deficient by showing that it fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 687-88. Juarez must also
show that there is a reasonable probability that he was prejudiced by his
attorney’s unprofessional errors. Id. at 694; United States v. Green, 882 F.2d
999, 1002 (5th Cir. 1989). In the guilty plea context, “‘[p]rejudice’ occurs if ‘there
is a reasonable probability that, but for counsel’s errors, [the defendant] would
not have pleaded guilty and would have insisted on going to trial.’” United
States v. Smith, 844 F.2d 203, 209 (5th Cir. 1988) (quoting Hill v. Lockhart, 474

                                          4
                                          No. 09-20764

U.S. 52, 59 (1985)); see also Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995)
(same). To determine the validity of a guilty plea, the courts must determine
“whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” Lockhart, 474 U.S. at 56
(internal quotation marks omitted).
A. Deficient Performance
       To establish deficiency, Juarez must show that his trial counsel was “not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985). “[T]his circuit has
recognized that, at a minimum, counsel has the duty to interview potential
witnesses and to make an independent investigation of the facts and
circumstances of the case.” Id. (citing Bell v. Watkins, 692 F.2d 999, 1009 (5th
Cir. 1982); Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir. 1979)). However, the
court is “highly deferential” and must apply a strong presumption that counsel’s
performance was reasonable or “might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (internal quotation marks omitted). And, the courts
must make “every effort...to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” United States v. Fields, 565
F.3d 290, 294 (5th Cir. 2009) (quoting Strickland, 466 U.S. at 689).
        Had Juarez been able to establish his derivative citizenship, it would have
been a defense to his conviction because citizenship negates the alienage
requirement of 18 U.S.C. § 911 and 8 U.S.C. § 1326. At the time of Juarez’s
conviction, derivative citizenship claims were governed by 8 U.S.C. § 1432(a)
(1999).2 That provision for derivative citizenship states as follows:


       2
         This statute is no longer effective as it was repealed by the Child Citizenship Act (CCA) of
2000. The CCA does not apply retroactively and thus is inapplicable to Juarez. See Nehme v. I.N.S.,
252 F.3d 415, 431-32 (5th Cir. 2001).

                                                 5
                                    No. 09-20764

      (a) A child born outside of the United States of alien parents, or of an
      alien parent and a citizen parent who has subsequently lost citizenship
      of the United States, becomes a citizen of the United States upon
      fulfillment of the following conditions:

      (1) The naturalization of both parents; or

      (2) The naturalization of the surviving parent if one of the parents is
      deceased; or

      (3) The naturalization of the parent having legal custody of the child
      when there has been a legal separation of the parents or the
      naturalization of the mother if the child was born out of wedlock and
      the paternity of the child has not been established by legitimation; and
      if

      (4) Such naturalization takes place while such child is under the age
      of eighteen years; and

      (5) Such child is residing in the United States pursuant to a lawful
      admission for permanent residence at the time of the naturalization of
      the parent last naturalized under clause (1) of this subsection, or the
      parent naturalized under clause (2) or (3) of this subsection, or thereafter
      begins to reside permanently in the United States while under the age of
      eighteen years.
8 U.S.C. § 1432(a) (1999) (repealed) (emphasis added). The parties do not
dispute that Juarez satisfies § 1432(a)(2) and (4). Juarez’s father died when
Juarez was a child and his mother was naturalized when Juarez was sixteen.
      The dispute centers on the interpretation of § 1432(a)(5). In particular,
the disagreement involves the following language: “thereafter begins to reside
permanently in the United States while under the age of eighteen years.” Juarez
argues that no LPR status was needed and he “beg[an] to reside permanently in
the United States while under the age of eighteen years.” At the time Juarez
pled guilty, legal authority suggested that he did not need LPR status to become
a citizen. Thus, he argues, the citizenship defense should have been available
to him and but for Izaguirre’s failure to research and investigate, he would not
have pled guilty.


                                           6
                                       No. 09-20764

       No Fifth Circuit case law interpreted § 1432(a)(5) at the time Juarez pled
guilty and today we decline to interpret the statute.                Based on the legal
authority available at the time Izaguirre advised Juarez on his pleas, a
derivative citizenship defense was plausible. See Ashton v. Gonzales, 431 F.3d
95, 98 (2d Cir. 2005) (court declining to decide what would satisfy § 1432(a)(5)
but expressing “belie[f] that there must be some objective official manifestation
of the child's permanent residence.”); United States v. Diaz-Guerrero, 132 F.
App’x. 739, 740-41 (9th Cir. 2005) (unpublished) (observing that in the second
clause of § 1432(a)(5), Congress omitted the “lawful admission” language that
appears in the provision’s first clause and simply stated that a minor may gain
citizenship if he “thereafter begins to reside permanently in the United States
while under the age of eighteen years.”); Ira J. Kurzban, Immigration Law
Sourcebook 1302 (11th ed. 2008-2009) (advising that “[f]or the child to be eligible
based on residency [under §1432(a)(5)], s/he did not need to be an LPR but must
have actually resided in the U.S. before s/he was 18”).3
       A reasonable investigation into derivative citizenship would have led
Izaguirre to any one of these legal sources. Kurzban’s interpretation of the
statute reasonably suggests that Juarez may have derived citizenship as he
would only need to show actual residence. The Diaz-Guerrero court’s
interpretation that the second clause does not require LPR status also supports
Juarez’s argument that the defense was available. And Ashton interpreted
§1432(a)(5) to require “some objective official manifestation” of a child’s
permanent residence.         This interpretation suggests that determination of
citizenship involves a factual analysis of available evidence. Juarez submitted


       3
         The parties cite to Kurzban’s 11th edition. The 11th edition of Kurzban’s treatise
discusses the interpretation of § 1432(a) at the time Juarez entered his guilty pleas in 2006.
The treatise cites to Ashton v. Gonzales, 431 F.3d 95 (2d Cir. 2005). The 10th edition of
Kurzban’s treatise also advises that LPR status was not needed under the statute. Ira J.
Kurzban, Immigration Law Sourcebook 1077-78 (10th ed. 2006).

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                                    No. 09-20764

evidence in an attempt to show that he actually resided in the United States.
His evidence included: (1) a showing that Juarez lived continuously in the
United States from 1989 until he was deported in 2002; (2) his mother’s
application for a voluntary departure and employment authorization for Juarez
when he was seven; (3) the filing of the I-130 (Petition for Alien Relative) when
Juarez was eleven, to establish a mother/son relationship that was a precursor
to filing an I-485 for LPR status; and (4) Juarez’s marriage to a U.S. citizen in
1999.
        As Juarez’s attorney, Izaguirre had a duty to independently research the
law and investigate the facts surrounding Juarez’s case. Cabana, 764 F.2d at
1177-78. With respect to the deficiency prong of the Strickland test, ‘[t]he first
prong—constitutional deficiency—is necessarily linked to the practice and
expectations of the legal community.” Padilla v. Kentucky, 130 S. Ct. 1473, 1482
(2010) (citing Strickland, 466 U.S. at 688). “We long have recognized that
“[p]revailing norms of practice as reflected in American Bar Association
standards... are guides to determining what is reasonable...” Id. at 1482 (citing
various Supreme Court cases). The Padilla Court held that although standards
such as those from the American Bar Association are “only guides” and not
“inexorable commands,” these standards can be “valuable measures of the
prevailing professional norms of effective representation, especially as these
standards have been adapted to deal with the intersection of modern criminal
prosecutions and immigration law.” Id.
        Here, Izaguirre, by his own admission, failed to investigate the facts or law
necessary to make an informed and competent decision regarding Juarez’s
citizenship defense. And because “alienage is an element of [the] crime...[the]
defendant is entitled to put the government to its proof on the issue of alienage
and is entitled to defend himself by seeking to prove that he was not an alien.”
United States v. Garcia-Mancha, 2001 WL 282769, at *8 (N.D. Tex. Mar. 15

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                                      No. 09-20764

2001) (magistrate judge’s report and recommendation).4 Izaguirre never heard
of derivative citizenship until after Juarez filed his § 2255 motion. But he knew
that Juarez actually resided in the United States after his mother’s
naturalization and before his eighteenth birthday. Juarez’s counsel testified
that he just “didn’t do the math and figure it out,” that derivative citizenship
was an available defense against the charges.               In admitting his mistake,
Izaguirre stated that had he known of the derivative citizenship defense, he
would have made a motion to withdraw Juarez’s guilty pleas.                     “[C]ounsel
must...ensure that guilty pleas are entered only as an informed and voluntary
choice, by actually and substantially assisting the defendant in deciding whether
to plead guilty.” Diaz v. Martin, 718 F.2d 1372, 1378 (5th Cir. 1983) (citations
omitted). Izaguirre’s failure to investigate was unreasonable.
B. Prejudice
       Juarez must also show that his attorney’s deficient performance was
prejudicial. Strickland, 466 U.S. at 694. He must demonstrate that there is a
“reasonable probability” that, but for Izaguirre’s errors, he “would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985); Green, 882 F.2d at 1002. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. “The defendant must show more than a mere possibility, but [ ] less
than a preponderance of the evidence, that the error affected the trial.” Procter
v. Butler, 831 F.2d 1251, 1255 (5th Cir. 1987) (citation omitted). When the
courts assess prejudicial effect, we “‘must consider the totality of the evidence
before the judge or jury.’” Martinez v. Dretke, 404 F.3d 878, 890 (5th Cir. 2005)
(quoting Strickland, 466 U.S. at 695).

       4
        The magistrate judge cited United States v. Ortiz-Lopez, 24 F.3d 53 (9th Cir. 1994);
United States v. Meza-Soria, 935 F.2d 166, 168 (9th Cir. 1991) (“If alienage is an element of
the crime, it would seem to follow that defendant is entitled to contest the issue by
demonstrating that he is not an alien.”)

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                                       No. 09-20764

      The district court determined that Juarez was not prejudiced because he
could neither show that he obtained LPR status by the time his mother was
naturalized nor could he show an “objective official manifestation” of his
permanent residency in the United States.5 The district court relied on Ashton
v. Gonzales, 431 F.3d 95 (2d Cir. 2005), which held that a claimant must show
“some objective official manifestation” of permanent residency. 431 F.3d at 98.
The district court also relied on Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir.
2008), which held that the language “or thereafter begins to reside permanently”
changes “only the timing of the residence requirement,” and “not the
requirement of legal residence.” Id. at 1062. Romero-Ruiz’s interpretation of §
1432(a)(5) was decided in 2008 and was not available at the time Izaguirre
consulted Juarez on his guilty pleas. Other similar interpretations of the statute
from the Eleventh Circuit and Board of Immigration Appeals (BIA) also were
unavailable when Juarez pled guilty in May 2006. See United States v. Forey-
Quintero, 626 F.3d 1323 (11th Cir. 2010); In re Nwozuzu, 24 I. & N. Dec. 609
(BIA Sept. 10, 2008).
      Although no controlling Fifth Circuit decision was available at the time of
Juarez’s guilty plea, Juarez’s attorney, upon reasonable investigation, would
have discovered other reliable legal authority. See Ashton, 431 F.3d at 98; Diaz-
Guerrero, 132 F. App’x. at 740-41; Ira J. Kurzban, Immigration Law Sourcebook
1077-78 (10th ed. 2006). The Kurzban treatise and Diaz-Guerrero case would
have helped guide Izaguirre’s legal discussion with Juarez. The Kurzban
treatise advised that LPR status was not required and that a showing of actual
residence was sufficient. Diaz-Guerrero held that a minor need not demonstrate
legal status to gain derivative citizenship. 132 F. App’x. at 740-41. The case
points out that Congress omitted from the second clause of § 1432(a)(5) the LPR


      5
          D. Ct. Proposed Finding of Fact and Conclusions of Law at 9.

                                             10
                                   No. 09-20764

language that it included in the first clause. Armed with this legal knowledge,
there is a reasonable probability that Juarez would have been dissuaded from
pleading guilty. Juarez argues that Izaguirre should have raised the defense
regardless of whether he actually derived citizenship because the argument was
viable based on available jurisprudence. Indeed, Izaguirre testified to his own
mistake and stated that had he independently investigated the defense, he
would have withdrawn Jaurez’s guilty pleas. See Mangum, 67 F.3d at 84
(holding that prejudice determination depends on discovery of evidence that
“would have influenced counsel to change his advice regarding the guilty plea.”).
      Based on the available law and circumstances, Juarez’s evidence was
sufficient to reasonably challenge the alienage element. United States v.
Guerrero-Pinela, 1997 WL 759149, at *1 (9th Cir. 1997) (unpublished) (finding
error when the district court excluded evidence of defendant’s mother’s
citizenship as the “evidence could have persuaded a juror that reasonable doubt
existed as to the alienage element.”).      Ashton bolsters the argument that
derivative citizenship was likely fact-determinative because it suggests that LPR
status may not be required under §1432(a)(5). Ashton, 431 F.3d at 98 (“We
believe that there must be some objective official manifestation of the child's
permanent residence, but we express no view as to what would satisfy
[§1432(a)(5)’s] requirements.”).
      The record shows that Juarez’s counsel simply failed to investigate the law
and that Juarez was deprived of the opportunity to assert a viable defense to the
charges against him. Jaurez has shown a reasonable probability that, had
Izaguirre investigated the available law and circumstances, he would have
elected to go to trial and put the government to the burden of proving the
alienage element. Based on the evidence, a reasonable juror could have found
that the government did not prove this element.



                                       11
                                  No. 09-20764

      A guilty plea is a waiver of certain constitutional rights; thus, a defendant
must make it intelligently and voluntarily for it to be effective. See Boykin v.
Alabama, 395 U.S. 238, 242-43 (1969). Juarez’s guilty pleas were not entered
knowingly or voluntarily because Izaguirre advised him without investigating
derivative citizenship. “[A defendant] who does not receive reasonably effective
assistance of counsel in connection with his decision to plead guilty cannot be
said to have made that decision either intelligently or voluntarily.” Mason v.
Balcom, 531 F.2d 717, 725 (5th Cir. 1976) (citing McCarthy v. United States, 394
U.S. 459 (1969)); U.S. v. Cavitt, 550 F.3d 430, 440-41 (5th Cir. 2008) (holding
that a lawyer’s duty is to provide the client an understanding of the law and to
give competent advice, and that if the lawyer is unfamiliar with the relevant
facts and law, the client’s guilty plea cannot be knowingly and voluntarily made
because it will not represent an informed choice).
                                  Conclusion
      For the foregoing reasons, we REVERSE the district court’s decision and
REMAND for further proceedings.




                                        12
