 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 2, 2015            Decided November 17, 2015

                         No. 15-3009

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                     KERRY NEWMAN,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:01-cr-00361-1)


    Rion O. Latimore argued the cause and filed the brief for
appellant.

    Stephen F. Rickard, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Vincent H. Cohen Jr.,
Acting U.S. Attorney, and Elizabeth Trosman, Elizabeth H.
Danello, and Ann K.H. Simon, Assistant U.S. Attorneys.

   Before: TATEL and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge TATEL.
                                2
    TATEL, Circuit Judge: Appellant Kerry Newman seeks to
vacate his conviction for federal wire fraud on the ground that
his attorney failed to properly advise him about the
immigration consequences of pleading guilty. The district
court denied his request partly because it believed he was
unable to show prejudice. For the reasons set forth below, we
reverse and remand.

                               I.
     A Jamaican citizen, Kerry Newman became a lawful
permanent resident of the United States in 1980. Many years
later, in 2001, he pled guilty to one count of federal wire fraud
for his participation in a real estate “flipping” scheme. Prior to
and at his plea hearing, his defense attorney failed to advise
him that pleading guilty could affect his immigration status.
Newman Aff. 2. Indeed, even after the district court warned
Newman that a guilty plea to the felony offense “could have
the consequence of deportation or exclusion from admission
to the United States,” Plea Hr’g Tr. 8–9, his lawyer said
nothing, see Newman Aff. 2–3.

     At sentencing eleven months later, Newman’s attorney
finally did comment on the potential immigration
consequences of a conviction, although he got the law wrong.
Both he and the prosecutor indicated that there might be “INS
implications” if the judge imposed a sentence of more than a
year and a day, but not if he imposed less. Sentencing Hr’g
Tr. 8, 18. In fact, Newman’s immigration status turned not on
his sentence, but on the nature of the crime to which he pled.
See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (providing that an alien
convicted of a crime involving moral turpitude is
inadmissible); 8 U.S.C. § 1227(a)(2)(A)(iii) (providing that an
alien convicted of an aggravated felony is deportable). His
attorney offered this inaccurate view of immigration law
despite the obvious importance Newman placed on the
                              3
immigration consequences of his conviction. See Sentencing
Hr’g Tr. at 18 (expressing Newman’s desire to avoid
immigration consequences). The district court, moreover,
relied on the attorney’s misrepresentations to impose a
sentence that it believed would be “beneficial to [Newman]
with respect to the INS.” Id. at 22.

     Although Newman subsequently completed his sentence
and traveled abroad several times without incident,
immigration authorities stopped him at the U.S. border in
2007 and charged him as inadmissible based on his conviction
for a crime involving moral turpitude. Newman retained an
immigration lawyer who informed him that wire fraud did
indeed qualify as such a crime and that, based on the loss
amount, his conviction also made him an “aggravated felon”
for immigration purposes. See Newman Aff. 4. She thus
advised him that he “did not have a chance of getting relief”
and that he should consent to removal. Id. Newman followed
that advice and an immigration judge ordered him removed to
Jamaica, where he has resided ever since—separated from
much of his family, including his parents and his daughter,
and from the country he had called home for most of his life.

     Then, in 2010, the Supreme Court offered Newman a ray
of hope. In Padilla v. Kentucky, 559 U.S. 356 (2010), it held
that defense attorneys provide inadequate representation when
they fail to advise their clients about the likely deportation
consequences of pleading guilty. Armed with that decision,
Newman filed a petition for a writ of coram nobis, which
provides a means of collaterally attacking a conviction when
the person is no longer in custody. See United States v.
Morgan, 346 U.S. 502 (1954) (recognizing the All Writs Act
gives federal courts authority to issue writs of coram nobis to
correct fundamental errors in criminal proceedings where the
person is no longer in custody). Newman argued that a writ
                                4
was appropriate because Padilla made it clear that his defense
attorney provided ineffective assistance by failing to inform
him of, and by affirmatively misadvising him about, the
potential immigration consequences of his conviction.

     While Newman’s petition was pending, however, the
Supreme Court cast a dark cloud over the case. In Chaidez v.
United States, 133 S. Ct. 1103 (2013), the Court held that
Padilla announced a new rule of criminal procedure, at least
insofar as it required attorneys to advise their clients about the
risks of deportation. This meant that only defendants whose
convictions, unlike Newman’s, became final after Padilla
could benefit from its holding. See id. at 1113.

     No longer able to rely on his attorney’s failure to counsel
him about immigration risks, Newman maintained that his
attorney’s performance was nonetheless deficient in two other
respects. First, he failed to “negotiate an effective plea
bargain” by neglecting to research and consider immigration
consequences when negotiating Newman’s plea. Second, he
provided erroneous immigration advice prior to and at
sentencing. On this latter point, Newman argued that although
Padilla announced a new rule requiring attorneys to advise
their clients about deportation risks, it did not announce a new
rule requiring attorneys to refrain from providing erroneous
immigration advice. That, he contended, was a constitutional
duty that predated Padilla.

     The district court rejected both arguments. With respect
to the first alleged deficiency, the court pointed out that
“before Padilla, Newman’s counsel was not required to
affirmatively advise him before or at his plea of the possible
immigration consequences of his plea.” United States v.
Newman, 74 F. Supp. 3d 484, 489 (D.D.C. 2014). With
respect to the second alleged deficiency—defense counsel’s
                               5
erroneous immigration advice—the court concluded that
Newman was unable to establish prejudice. Id. “[B]ecause the
misrepresentations by Newman’s attorney occurred after
[Newman] already had pled guilty,” the court explained, he
could not show “that the result of his proceeding would have
been different absent these post-plea misrepresentations.” Id.
(internal quotation marks omitted). The district court therefore
denied Newman’s petition, although it did so “reluctantly.”
Id. at 486.

     Newman now appeals, advancing the same two bases for
his ineffective assistance claim.

                              II.
     “A petition for a writ of coram nobis provides a way to
collaterally attack a criminal conviction for a person . . . who
is no longer ‘in custody’ and therefore cannot seek habeas
relief under 28 U.S.C. § 2255 or § 2241.” Chaidez, 133 S. Ct.
at 1106 n.1. Courts may grant coram nobis relief only in
“extraordinary cases” where it is necessary “to achieve
justice.” United States v. Denedo, 556 U.S. 904, 911 (2009)
(internal quotation marks omitted). In particular, and central
to this case, coram nobis may be used to redress “fundamental
error[s]” in criminal proceedings, such as violations of the
Sixth Amendment right to counsel. See id. (citing Morgan,
346 U.S. at 513).

     Although courts have articulated several factors that may
bear on the propriety of granting such relief, see, e.g., United
States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007); United
States v. Faison, 956 F. Supp. 2d 267, 269 (D.D.C. 2013), the
parties’ only dispute in this case is whether Newman has
demonstrated a fundamental error warranting the writ. More
specifically, their sole disagreement focuses on whether
Newman can show that he was denied effective assistance of
                               6
counsel under Strickland v. Washington, 466 U.S. 668 (1984).
To do so, he must show that his lawyer’s performance was
“deficient” and “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 687, 694.

     This circuit has yet to resolve the standard of review
governing ineffective assistance claims. As we recently
explained in United States v. Shabban, such claims “present[]
mixed questions of law and fact, which are sometimes
reviewed de novo and sometimes only for abuse of
discretion.” 782 F.3d 3, 7 (D.C. Cir. 2015). In Shabban, we
saw “no reason” to resolve the question because the
defendant’s claim in that case “fail[ed] even under the more
searching de novo standard.” Id. We likewise have no need to
resolve that question here because the standard of review has
no effect on the outcome.

                               A.
    Newman first contends that his lawyer’s performance
was deficient because he failed to “negotiate an effective plea
bargain” and to “mitigate harm under the plea agreement.”
Appellant’s Br. 15. By this, he faults counsel for failing to
research and consider potential immigration consequences
when negotiating his plea deal. See id. at 18–20.

    This argument is foreclosed by Padilla and Chaidez.
Simply put, it makes no sense to suggest that although
defense attorneys had no duty to advise their clients about the
immigration consequences of pleading guilty prior to Padilla,
they nonetheless had a duty to research those consequences
and take them into account when negotiating a plea deal.
Accordingly, even under the more searching de novo
standard, we conclude that the district court properly rejected
Newman’s first claim for ineffective assistance.
                               7

                               B.
     We have a different view about Newman’s second
argument—that his attorney provided ineffective assistance
by affirmatively misrepresenting the potential immigration
consequences of a conviction. The government does not
question the proposition that, at the time Newman was
convicted, a lawyer’s erroneous immigration advice could
form the basis of an ineffective assistance claim. Oral Arg.
Rec. 17:35–17:53. Instead, the government focuses on
whether Newman can show prejudice. It believes he is unable
to do so because his attorney provided inaccurate advice only
after he pled guilty. In other words, as the government sees it,
the damage was already done. The district court agreed,
writing that Newman could not show prejudice because “the
misrepresentations by [his] attorney occurred after he already
had pled guilty.” Newman, 74 F. Supp. 3d at 489.

     But nothing about the temporal relationship between
Newman’s plea and his attorney’s inaccurate advice
categorically bars Newman from establishing prejudice. After
all, under the Federal Rules of Criminal Procedure, Newman
could have withdrawn his plea prior to sentencing for any
“fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B). In our
view, then, the district court should not have denied the
petition based solely on the timing of defense counsel’s
misrepresentations, and we must reverse. See Koon v. United
States, 518 U.S. 81, 100 (1996) (reversing because of an error
of law).

     Of course, the burden of establishing prejudice falls
squarely on Newman’s shoulders. To prevail, he must show a
reasonable probability that, “but for counsel’s unprofessional
errors,” Strickland, 466 U.S. at 694, he would have sought to
withdraw his plea and the court would have permitted him to
                               8
do so. He must also demonstrate a reasonable probability that
after withdrawing his plea he would either have insisted on
going to trial, see Hill v. Lockhart, 474 U.S. 52, 59 (1985), or
obtained a plea deal with different immigration consequences,
see Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012). To do so,
he must confront, among other things, the fact that he pled
guilty after the district court expressly warned him that his
plea could affect his immigration status. See, e.g., In re Sealed
Case, 488 F.3d 1011, 1016–17 (D.C. Cir. 2007) (noting that
although trial court’s warning at plea colloquy did not defeat
defendant’s prejudice claim, it weakened his claim that he
relied on his attorney’s sentencing prediction when entering
plea).

     Ultimately, we decline to express an opinion on whether
Newman can carry his burden here and instead remand the
case to the district court for further consideration. We believe
this is the best course for several reasons. First, determining
whether Newman was prejudiced requires resolution of
difficult legal and factual questions, such as whether Newman
can show he would have had a “fair and just” reason to
withdraw his plea and whether he can demonstrate he would
have been able to negotiate a more beneficial plea even
though the prosecutor never offered one. But because the
government focused exclusively on the timing of defense
counsel’s misrepresentations, the parties have not briefed
these issues, and we thus consider it unwise to reach them.
Second, given the fact-intensive nature of the prejudice
inquiry, and given that the district court presided over
Newman’s earlier criminal proceedings, it is in a far better
position to evaluate whether Newman suffered any prejudice.
On this point, we think it not insignificant that the district
court denied the petition “reluctantly,” perhaps suggesting it
believed the question was close. Finally, this approach
comports with our general practice of remanding ineffective
                                9
assistance claims unless the record “conclusively shows” that
an appellant is entitled to no relief. See, e.g., United States v.
Rashad, 331 F.3d 908, 909–910 (D.C. Cir. 2003) (explaining
that, in direct appeals, “this court’s general practice is to
remand the claim for an evidentiary hearing unless the trial
record alone conclusively shows that the defendant either is or
is not entitled to relief”). Indeed, the Supreme Court followed
this precise approach in a coram nobis case like this one. See
Morgan, 346 U.S. at 512 (“Where it cannot be deduced from
the record whether counsel was properly waived, we think . . .
this motion in the nature of the extraordinary writ of coram
nobis must be heard by the federal trial court.”).

                               III.
     For the foregoing reasons, we reverse and remand for
further proceedings consistent with this opinion.

                                                     So ordered.
