                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                   No. 14-55239
                Plaintiff-Appellee,
                                              D.C. No.
                 v.                        2:93-CR-00583-
                                               RGK-1
MAUREEN ELAINE CHAN, AKA
Maureen Ridley,
              Defendant-Appellant.           OPINION


      Appeal from the United States District Court
         for the Central District of California
      R. Gary Klausner, District Judge, Presiding

                Argued and Submitted
        February 2, 2015—Pasadena California

                      Filed July 9, 2015

       Before: Dorothy W. Nelson, Jay S. Bybee,
          and Sandra S. Ikuta, Circuit Judges.

            Opinion by Judge D.W. Nelson;
             Concurrence by Judge Bybee;
                Dissent by Judge Ikuta
2                   UNITED STATES V. CHAN

                           SUMMARY*


                           Coram Nobis

    The panel reversed the district court’s dismissal of a
petition for a writ of error coram nobis in a case in which
Maureen Elaine Chan sought to withdraw her guilty plea on
the ground that defense counsel affirmatively misrepresented
the adverse immigration consequences of her conviction.

    The panel held that United States v. Kwan, 407 F.3d 1005
(9th Cir. 2005) (holding that affirmatively misleading a client
regarding the immigration consequences of a conviction
could constitute the basis for an ineffective assistance of
counsel claim), survives Padilla v. Kentucky, 559 U.S. 356
(2010) (holding that in order to satisfy the Sixth Amendment,
defense counsel must inform her client whether his plea
carries a risk of deportation), and did not establish a new rule
of criminal procedure under Teague v. Lane, 489 U.S. 288
(1989). The panel thus held that Kwan applies retroactively
to Chan’s case, and remanded for the district court to evaluate
the merits of the petition in the first instance.

     Judge Bybee concurred. He agreed with the majority
opinion that Kwan did not create a new rule under Teague.
But in his view, the panel should reverse for an independent,
more compelling reason: Chan’s coram nobis petition is on
all fours with Kwan, in which this court granted coram nobis
relief.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. CHAN                       3

    Dissenting, Judge Ikuta wrote that Kwan created a new
rule, and cannot be applied retroactively to Chan’s case,
because the result in Kwan was not dictated by precedent
existing at the time Chan’s conviction became final and
would not have been apparent to all reasonable jurists.


                         COUNSEL

Mark M. Kassabian, Buehler & Kassabian, LLP, Pasadena,
California, for Defendant-Appellant.

André Birotte, Jr., United States Attorney, Robert Dugdale,
Chief, Criminal Division, Jean-Claude Andre (argued) and
Wilson Park, Assistant United States Attorneys, Los Angeles,
California, for Plaintiff-Appellee.


                          OPINION

D.W. NELSON, Senior Circuit Judge:

    Appellant Maureen Elaine Chan, a/k/a Maureen Ridley
(“Chan”), appeals the district court’s dismissal of her petition
for a writ of error coram nobis. This case requires us to
determine the retroactivity of our prior decision in United
States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). Because we
conclude that Kwan both survives Padilla v. Kentucky,
559 U.S. 356 (2010), and did not establish a new rule of
criminal procedure under Teague v. Lane, 489 U.S. 288
(1989), we thus hold that Kwan applies retroactively to
Chan’s case. Accordingly, we reverse the district court’s
order dismissing Chan’s petition and remand for further
proceedings consistent with this opinion.
4                UNITED STATES V. CHAN

I. Background

    On June 22, 1993, Chan was charged with six counts of
perjury under 18 U.S.C. § 1623. Chan pleaded guilty pursuant
to a plea agreement to three counts of perjury and was
sentenced to two months imprisonment, three years of
supervised release, and a special assessment of $150. Chan
is a British citizen but has been a lawful permanent resident
of the United States since 1973.

    Prior to pleading guilty, Chan alleges that she consulted
with her attorney and specifically asked him whether a guilty
plea would affect her immigration status. She further alleges
that her attorney assured her that she would not face any
adverse immigration consequences.

    Chan states that on February 28, 2012, she was stopped
by U.S. Customs and Border Protection agents at Los
Angeles International Airport, who then confiscated her
passport and permanent resident card. On November 15,
2012, the Department of Homeland Security initiated removal
proceedings against Chan and served her with a Notice to
Appear, charging her as inadmissible under
§ 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act
as an immigrant convicted of a crime involving moral
turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I).

    On May 15, 2013, Chan brought a petition for writ of
error coram nobis in the district court. Chan sought to
withdraw her guilty plea and supported her petition with one
claim of ineffective assistance of counsel (“IAC”), alleging
that defense counsel affirmatively misrepresented the adverse
immigration consequences of her conviction. Chan claimed
that, had she known the true nature of the immigration
                  UNITED STATES V. CHAN                        5

consequences of her potential convictions, she would have
requested a different plea deal or gone to trial.

    On September 24, 2013, the government filed a motion to
dismiss the petition. The district court granted the
government’s motion to dismiss, concluding that Kwan
established a new rule of criminal procedure under Teague
and, therefore, did not have retroactive effect. Chan timely
appealed the district court’s dismissal to this court.

II. Standard of Review

    “A district court’s denial of a petition for a writ of error
coram nobis is reviewed de novo.” United States v. Riedl,
496 F.3d 1003, 1005 (9th Cir. 2007).

III.    Discussion

    “[T]he writ of error coram nobis is a highly unusual
remedy, available only to correct grave injustices in a narrow
range of cases where no more conventional remedy is
applicable.” Id.; see also United States v. Morgan, 346 U.S.
502, 511 (1954) (describing the writ of error coram nobis as
an “extraordinary remedy” available “only under
circumstances compelling such action to achieve justice”). In
order to establish that she qualifies for coram nobis relief, the
petitioner must show the following four factors:

        (1) a more usual remedy is not available;

        (2) valid reasons exist for not attacking the
        conviction earlier;
6                   UNITED STATES V. CHAN

           (3) adverse consequences exist from the
           conviction sufficient to satisfy the case or
           controversy requirement of Article III; and

           (4) the error is of the most fundamental
           character.

Riedl, 496 F.3d at 1006 (quoting Hirabayashi v. United
States, 828 F.2d 591, 604 (9th Cir. 1987)).

    The district court dismissed Chan’s petition under—and
the parties only dispute—the fourth factor. Specifically, the
district court concluded that because Kwan established a new
rule under Teague and, thus, does not apply retroactively,
Chan had failed to state a claim for IAC and could not show
that there was an error of “the most fundamental character.”

    To determine whether Chan may proceed with her IAC
claim under Kwan, we first look to whether Kwan survives
Padilla.1 We then turn to whether this case is controlled by
Chaidez v. United States, 133 S. Ct. 1103 (2013), which
concluded that Padilla does not apply retroactively, and
whether Kwan established a new rule of criminal procedure
under Teague.

        A. Whether Padilla abrogates Kwan

    In Kwan, we held that affirmatively misleading a client
regarding the immigration consequences of a conviction


    1
    The government made this argument before the district court, but has
not pursued it on appeal. Although the government has thus waived this
argument, Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), we find
it a necessary starting point for our analysis.
                  UNITED STATES V. CHAN                      7

could constitute the basis for an IAC claim. 407 F.3d at
1015. We noted that our holding was notwithstanding our
earlier-espoused rule that “an attorney’s failure to advise a
client of the immigration consequences of a conviction,
without more, does not constitute ineffective assistance of
counsel.” Id. (citing United States v. Fry, 322 F.3d 1198,
1200 (9th Cir. 2003), abrogated by Padilla, 559 U.S. 356).

    Five years after Kwan, the Supreme Court changed the
landscape of IAC claims and held that, in order to satisfy the
Sixth Amendment, defense counsel “must inform her client
whether his plea carries a risk of deportation.” Padilla,
559 U.S. at 374. This holding abrogated the existing rule in
all ten courts of appeals that had reached this
issue—including ours, Fry, 322 F.3d 1198—as the courts of
appeals had uniformly concluded that the mere failure to
advise regarding the possibility of deportation could not
establish an IAC claim. Chaidez, 133 S. Ct. at 1109 & n.7.

    Padilla was simultaneously broader and narrower than
our decision in Kwan: broader in that Padilla reached
affirmative misrepresentations and failure to advise, but
narrower in that Padilla concerned only deportation whereas
Kwan considered all “immigration consequences.” Compare
Padilla, 559 U.S. at 364–66, 369–74, with Kwan, 407 F.3d at
1015–17. Further, the crux of Padilla’s holding was to reject
the direct/collateral consequence distinction in the context of
deportation to “conclude that advice regarding deportation is
not categorically removed from the ambit of the Sixth
Amendment right to counsel.” 559 U.S. at 366. Kwan,
though, concerned itself more with the fact that an attorney
misadvised his client about a matter material to the client’s
decision to enter into a plea agreement. See 407 F.3d at 1016
(“[C]ounsel made an affirmative representation to Kwan that
8                 UNITED STATES V. CHAN

he had knowledge and experience regarding the immigration
consequences of criminal convictions; as a result, counsel had
a professional responsibility to [correctly] inform himself and
his client . . . .”). Thus, while Padilla clearly abrogated Kwan
to the extent that Kwan reaffirmed the rule in Fry, see Kwan,
407 F.3d at 1015, Kwan’s holding that affirmative
misrepresentations by counsel regarding immigration
consequences constitutes deficient performance under
Strickland v. Washington, 466 U.S. 668 (1984), clearly
survives Padilla.

    B. Whether Chaidez controls Kwan

    We next turn to the government’s argument that Kwan is
controlled by Chaidez. The government contends that for the
same reasons Chaidez concluded Padilla announced a new
rule and was not retroactive, Kwan must also have announced
a new rule and not be retroactive. Because we find Kwan
sufficiently distinguishable from Padilla, we conclude Kwan
is not controlled by Chaidez.

    In Chaidez, the Supreme Court held that Padilla did not
have retroactive effect. 133 S. Ct. at 1105. In evaluating
Padilla under the Teague framework, the Court explained
that Padilla had not simply applied the “general standard” for
IAC in Strickland, but rather “did something more.” Chaidez,
133 S. Ct. at 1107, 1108. That “something more” was
answering a threshold question: whether Sixth Amendment
protections governing the competence of defense counsel
extended to advice regarding deportation. Id. In concluding
that they did, the Court answered in part a question left
explicitly open in Hill v. Lockhart, 474 U.S. 52 (1985),
whether the Sixth Amendment covered so-called “collateral
consequence[s]” of a conviction. Chaidez, 133 S. Ct. at 1108
                  UNITED STATES V. CHAN                      9

(citing Hill, 474 U.S. at 60). Importantly, as we noted above,
the Court answered this question in Padilla by rejecting the
direct/collateral consequence distinction, declining to label
deportation as either and, instead, identifying it as “unique.”
Id. at 1110 (quoting Padilla, 130 U.S. at 365) (internal
quotation marks omitted). As such, Padilla fundamentally
altered Sixth Amendment jurisprudence in at least partially
breaking down the distinction between direct and collateral
consequences. Id. at 1110–11.

    Kwan’s much narrower holding instead focused on
whether counsel’s performance was deficient. See 407 F.3d
at 1015–17. Kwan did not assert Padilla’s holding that
attorneys could be liable for failing to advise about adverse
immigration consequences; rather, Kwan merely held that
attorneys’ affirmative misrepresentations—or incorrect
answers to direct questions from clients—regardless of their
subject matter would be deficient performance under
Strickland. Id. Thus, Kwan’s analysis rested on the
distinction between failure to advise and affirmative
misadvice, not on the direct/collateral/unique nature of the
consequence faced by the petitioner. While there is some
language in Chaidez that appears to cover both failure to
advise and affirmative misrepresentations, see 133 S. Ct at
1110 (“Padilla . . . made the Strickland test operative . . .
when a criminal lawyer gives (or fails to give) advice about
immigration consequences.”), Chaidez also recognized that
prior to Padilla, certain circuits “recognized a separate rule
for material misrepresentations,” which “lived in harmony
with” other precedent excluding claims based on failure to
advise, id. at 1112.

    Because Chaidez focused on the novelty of Padilla’s
threshold inquiry as to whether the Sixth Amendment ever
10                    UNITED STATES V. CHAN

applies to advice regarding deportation advice—an analysis
absent from Kwan—we conclude that Kwan is not controlled
by Chaidez and thus proceed with our own analysis of Kwan
under Teague.

      C. Kwan Under the Teague Framework

    Lastly, we must determine whether, as the district court
concluded and the government argues, Kwan constituted a
new rule of criminal procedure under Teague and thus cannot
be applied retroactively. We agree with Chan that Kwan did
not establish a new rule under Teague, and we reverse the
district court on that basis.

    The framework we proceed under to determine
retroactivity under Teague is clear: first,2 we determine “the
date upon which the defendant’s conviction became final.”
Lambrix v. Singletary, 520 U.S. 518, 527 (1997). Second, we
“survey the legal landscape as it then existed and determine
whether a . . . court considering the defendant’s claim at the
time his conviction became final would have felt compelled
by existing precedent to conclude that the rule he seeks was
required by the Constitution.” Id. (internal quotation marks,
brackets and citations omitted). Finally, if the rule is a “new
rule,” we must determine “whether the relief sought falls
within one of the two narrow exceptions to nonretroactivity.”
Id.

  2
    Of course, there is a threshold determination as to whether the rule
presented is “a substantive rule or a procedural rule” as “‘Teague by its
terms applies only to procedural rules.’” Hayes v. Brown, 399 F.3d 972,
982 (9th Cir. 2005) (en banc) (quoting Bousley v. United States, 523 U.S.
614, 620 (1998)). Neither party has argued that the rule in this case is
substantive, and we conclude that because it “does not affect the scope of
a substantive criminal statute,” the rule here is clearly procedural. See id.
                   UNITED STATES V. CHAN                       11

    In this case, Chan’s conviction became final in 2000.
Accordingly, we are required to “survey the legal landscape”
at that time to determine whether Chan would have been
vindicated in seeking to apply the rule in Kwan to her case.

    “[A] case announces a new rule if the result was not
dictated by precedent existing at the time the defendant’s
conviction became final.” Chaidez, 133 S. Ct. at 1107
(quoting Teague, 489 U.S. at 301) (internal quotation marks
omitted). Further, “a holding is not so dictated . . . unless it
would have been ‘apparent to all reasonable jurists.’” Id.
(quoting Lambrix, 520 U.S. at 527–28). However, “‘[w]here
the beginning point’ of [the court’s] analysis is a rule of
‘general application . . . designed for . . . evaluating a myriad
of factual contexts, it will be the infrequent case that yields a
result so novel that it forges a new rule.’” Id. (first alteration
in original) (quoting Wright v. West, 505 U.S. 277, 309
(1992) (Kennedy, J., concurring)).

    We find that many factors weigh in favor of concluding
that Kwan did not announce a new rule of criminal procedure.
First, the language of both Chaidez and Padilla indicates that
a court would not be creating a new rule by holding only that
defense counsel’s affirmative misrepresentations regarding
immigration consequences could constitute an IAC claim. In
response to Justice Sotomayor’s dissent in Chaidez, which
argued that Padilla itself was not a new rule based on cases
such as Kwan, Chaidez, 133 S. Ct. at 1118 (Sotomayor, J.,
dissenting), the Chaidez majority explained that “those
decisions reasoned only that a lawyer may not affirmatively
misrepresent his expertise or otherwise actively mislead his
12                UNITED STATES V. CHAN

client on any important matter, however related to a criminal
prosecution,” id. at 1112 (majority op.). The Court described
the rule barring affirmative misrepresentations under
Strickland—“regardless whether they concerned deportation
or another collateral matter”—as a “limited” rule, which, it
concluded, did not apply to Chaidez’s failure-to-advise case.
Id. Finally, the Chaidez majority noted that “Padilla would
not have created a new rule had it only applied Strickland’s
general standard to yet another factual situation—that is, had
Padilla merely made clear that a lawyer who neglects to
inform a client about the risk of deportation is professionally
incompetent.” Id. at 1108. Justice Sotomayor explained that
“[t]he majority believes that [Kwan and related cases] did not
meaningfully alter the state of the law in the lower courts
before Padilla, because they merely applied the age-old
principle that a lawyer may not affirmatively mislead a
client.” Id. at 1119 (Sotomayor, J., dissenting).

    The distinction between affirmative misrepresentations
and failure to advise also is reflected in Padilla. There, the
Solicitor General argued that the Court should adopt a more
narrow rule, similar to Kwan, whereby counsel’s performance
would only be deficient under Strickland if the attorney gave
“misadvice” about collateral/immigration consequences.
Brief for United States as Amicus Curiae Supporting
Affirmance, Padilla v. Kentucky, 559 U.S. 356 (2010) (No.
08-651), 2009 WL 2509223, *6–7, 22–25. Although the
Padilla majority rejected this position, 559 U.S. at 369–74,
Justice Alito advocated for the adoption of this narrower rule
in his concurrence, id. at 384–87 (Alito, J., concurring).
Justice Alito characterized the majority’s rule as a “dramatic
departure from precedent,” a “major upheaval in Sixth
Amendment law,” and a “dramatic expansion of the scope of
criminal defense counsel’s duties under the Sixth
                 UNITED STATES V. CHAN                    13

Amendment.” Id. at 377, 383. By contrast, Justice Alito
explained the Solicitor General’s narrower rule would “not
require any upheaval in the law.” Id. at 386. He additionally
noted that “the vast majority of the lower courts considering
claims of ineffective assistance in the plea context have
distinguished between defense counsel who remain silent and
defense counsel who give affirmative misadvice.” Id.
(internal quotation marks and brackets omitted). Read
together, Chaidez and Padilla thus strongly indicate that the
Court would not have considered the rule in Kwan to be a
new rule.

    Second, at the time Chan’s conviction became final there
was ample support in federal courts for the Kwan rule. By
2000, both courts of appeals to reach the issue had concluded
that affirmative misrepresentations regarding immigration
consequences could support an IAC claim in certain
circumstances. See Downs-Morgan v. United States,
765 F.2d 1534, 1540–41 (11th Cir. 1985); United States v.
Briscoe, 432 F.2d 1351, 1353–54 (D.C. Cir. 1970).
Additionally, many district courts had reached the same
conclusion. See, e.g., United States v. Khalaf, 116 F. Supp.
2d 210, 215 (D. Mass. 1999); see also United States v.
Abramian, No. CR 02-00945 MMM, 2014 WL 2586666, at
*5 (C.D. Cal. June 10, 2014) (compiling cases). Several of
our sister circuits had also concluded that affirmative
misrepresentations regarding parole consequences, also
considered to be a “collateral consequence” of a conviction,
could establish an IAC claim. See James v. Cain, 56 F.3d
662, 667–69 (5th Cir. 1995); Holmes v. United States,
876 F.2d 1545, 1551–53 (11th Cir. 1989); Sparks v. Sowders,
852 F.2d 882, 885 (6th Cir. 1988); Strader v. Garrison, 611
F.2d 61, 65 (4th Cir. 1979). As such, “the [Kwan] rule was
indicated, and was awaiting an instance in which it would be
14                UNITED STATES V. CHAN

pronounced.” Kovacs v. United States, 744 F.3d 44, 50 (2d
Cir. 2014). Moreover, we need not cite to a particular pre-
2000 case stating that affirmative misadvice constitutes IAC
for Kwan to not be a new rule under Teague because Kwan
merely asserted an “age-old principle” that attorneys can be
held liable if they affirmatively misadvise their clients. See
Chaidez, 133 S. Ct. at 1119 (Sotomayor, J., dissenting); Dyer
v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc)
(“[A] rule needs to be announced for purposes of Teague only
if it’s new. What we have here is the antithesis of Teague—a
rule so deeply embedded in the fabric of due process that
everyone takes it for granted.”).

    Although we join our colleagues on the Second Circuit in
finding pre-Padilla circuit precedent on affirmative
misrepresentations to be retroactive, see Kovacs, 744 F.3d at
50–51, we acknowledge that our conclusion puts us at odds
with the Seventh Circuit’s ruling in Chavarria v. United
States, 739 F.3d 360 (7th Cir. 2014). There, the Seventh
Circuit rejected “affirmative misadvice . . . under pre-Padilla
law” as a basis for an IAC claim for two reasons: “[F]irst, . . .
the distinction between affirmative misadvice and non-advice
was not a relevant factor in Padilla,” and “[s]econd, the
precedent, pre-Padilla, supporting the application of
Strickland in this context is insufficient to satisfy Teague.”
Id. at 362.

    We respectfully disagree with both of these points. First,
while Padilla certainly breaks down the barrier between
affirmative misrepresentations and failure to advise—at least
as to deportation advice—henceforth, Justice Alito’s
concurrence and Chaidez strongly suggest that the impact of
Padilla would have been far different had the Supreme Court
simply adopted the narrower Kwan rule. As such, while the
                  UNITED STATES V. CHAN                      15

distinction may be “irrelevant” for future IAC claims, the
distinction is relevant for our Teague analysis above. Second,
as we explain above, we find ample support in the federal
courts pre-Padilla for the rule that affirmative
misrepresentations regarding immigration consequences
could support IAC claims. As Chaidez noted, Kwan and
similar cases “existed happily with precedent” that denied
IAC claims based on failure to advise. 133 S. Ct. at 1112.

    Ultimately, we read the language in Chaidez differently
than the Seventh Circuit did in Chavarria, and we agree with
the Second Circuit’s analysis in Kovacs. We thus conclude
that Kwan did not announce a new rule of criminal procedure
under Teague and that the rule in Kwan—affirmative
misrepresentations by defense counsel regarding immigration
consequences is deficient under Strickland—can support
Chan’s IAC claim.

IV.     Conclusion

    The district court dismissed Chan’s petition because it
concluded that Kwan was a new rule of criminal procedure
under Teague and did not apply retroactively. Because we
conclude otherwise, we reverse the district court’s dismissal.
However, the district court did not consider the merits of
Chan’s petition because it was dismissed on this ground
alone. Accordingly, we remand the case to the district court
to evaluate the merits of Chan’s petition in the first instance.

      REVERSED and REMANDED.
16                UNITED STATES V. CHAN

BYBEE, Circuit Judge, concurring:

    I concur in Judge Nelson’s majority opinion that our prior
decision in United States v. Kwan, 407 F.3d 1005 (9th Cir.
2005), did not create a new rule under Teague. For reasons
Judge Nelson explains, the duty under Strickland v.
Washington, 466 U.S. 668 (1984), not to make affirmative
misrepresentations (whatever their subject matter) is not
“new.” But in my view, we should reverse the district court
for an independent reason, one that I find even more
compelling than applying Teague: We granted coram nobis
relief in Kwan, and Chan’s coram nobis petition is on all
fours with Kwan. This case is governed by stare decisis.

    In order to grant coram nobis, we must find the error
alleged to be “of the most fundamental character, that is, such
as [would] render[] the proceeding itself invalid.”
Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.
1987) (internal quotation marks omitted) (quoting United
States v. Mayer, 235 U.S. 55, 69 (1914)). When we granted
coram nobis relief to Kwan, we determined that counsel’s
affirmative misrepresentation regarding Kwan’s immigration
consequences constituted an “error . . . of the most
fundamental character.” Kwan, 407 F.3d at 1011–12 (quoting
Estate of McKinney ex. rel. McKinney v. United States,
71 F.3d 779, 781–82 (9th Cir. 1995)). The Supreme Court
has held that such fundamental errors exist only in
“‘extraordinary’ cases presenting circumstances compelling
its use ‘to achieve justice.’” United States v. Denedo,
556 U.S. 904, 911 (2009) (quoting United States v. Morgan,
                     UNITED STATES V. CHAN                            17

346 U.S. 502, 511 (1954)).1 If an error is so fundamental as
to warrant coram nobis relief, doesn’t that mean that the
principle is not new? Or put differently, is a finding of
“fundamental error” for coram nobis purposes automatically
“not-new” for Teague purposes because of its fundamental
status? I think the answer to both questions must be yes.

     Under Teague, a case “announces a new rule if the result
was not dictated by precedent existing at the time the
defendant’s conviction became final.” Teague v. Lane,
489 U.S. 288, 301 (1989). Such “a holding is not so dictated
. . . unless it would have been ‘apparent to all reasonable
jurists’” at the time that the defendant’s conviction became
final. Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013)
(quoting Lambrix v. Singletary, 520 U.S. 518, 527–528
(1997)). It seems obvious to me that an error of such
fundamental character as to warrant coram nobis relief is one
that all reasonable jurists would agree is an error.

   Although I think the principle is obvious, neither the
Supreme Court nor we have spoken to whether we must apply
Teague where the case establishing the rule was an action in


 1
    Historically, we have granted coram nobis relief only in very extreme
and narrow circumstances. See, e.g., United States v. McClelland,
941 F.2d 999, 1001–02 (9th Cir. 1991) (granting coram nobis relief where
defendant had been convicted without proof beyond a reasonable doubt of
an essential element of the offense); United States v. Walgren, 885 F.2d
1417, 1423–24 (9th Cir. 1989) (finding fundamental error where
Walgren’s mail fraud conviction rested upon a commission of fraud that
was not criminal); Hirabayashi, 828 F.2d at 608 (granting coram nobis
relief to vacate Hirabayashi’s convictions for failure to report under the
Civilian Exclusion Order 57 and for a wartime curfew violation,
convictions which were later deemed unjust by both the legislative and
executive branches).
18                UNITED STATES V. CHAN

coram nobis. Cf. id. at 1106 n.1 (assuming without deciding
that there was no meaningful difference between a coram
nobis petition and a habeas petition in determining whether
Padilla had retroactive effect under Teague). In Chaidez, the
Court decided whether a prior, non-coram nobis case applied
retroactively for the benefit of the coram nobis petitioner. Id.
at 1106, 1110–11. In that case, using Teague to decide
whether the error was so obvious to be “fundamental” makes
sense. By contrast, here we have a coram nobis petitioner
seeking to use a prior coram nobis case retroactively for her
own relief.

     Chan’s case is distinguishable from the principal decision
noted by the dissent, Ortega v. Roe, for the same reason. See
Dissent at 25–26. In Ortega (a 28 U.S.C. § 2254 habeas and
pre-AEDPA case), we considered whether a habeas petitioner
could rely on our decision in United States v. Stearns (a
§ 2255 case) for his own habeas relief, and we conducted a
Teague analysis of Stearns. Ortega v. Roe, 160 F.3d 534,
535–36 (9th Cir. 1998) (citing United States v. Stearns,
68 F.3d 328, 329 (9th Cir. 1995)), vacated on other grounds
by Roe v. Flores-Ortega, 528 U.S. 470 (2000). It makes
sense that we would conduct a Teague analysis in Ortega
because Stearns treated the Sixth Amendment question before
it as a straight-up Strickland question. In Stearns, we did not
have to conclude that the petitioner’s proceedings exhibited
an “error of the most fundamental character.” Accordingly,
it makes sense to require a petitioner—whether proceeding
under § 2254, § 2255, or coram nobis—who is seeking the
benefit of a decision made retroactive in a prior habeas case,
to satisfy Teague’s “new rule” analysis. But not so here. We
have already held the error in Chan’s case to be “of the most
fundamental character,” and it strikes me as illogical to
require her to repeat the same arguments for the purposes of
                  UNITED STATES V. CHAN                    19

satisfying Teague. We need not use Teague to decide if we
find an error to be “fundamental” when Kwan has already so
concluded. This case turns out to be a straightforward
application of stare decisis.

    I would reverse the district court’s order dismissing
Chan’s petition because we are bound by Kwan’s finding of
“fundamental error” and its implicit holding that it was not
creating a new rule under Teague.



IKUTA, Circuit Judge, dissenting:

    As the Supreme Court made clear, “a case announces a
new rule if the result was not dictated by precedent existing
at the time the defendant’s conviction became final. And a
holding is not so dictated . . . unless it would have been
apparent to all reasonable jurists.” Chaidez v. United States,
133 S. Ct. 1103, 1107 (2013) (quoting Teague v. Lane,
489 U.S. 288, 301 (1989) and Lambrix v. Singletary, 520 U.S.
518, 527–28 (1997)) (internal quotation marks and citation
omitted). Relying on our precedents and those of other
circuits, we held in 2003 that counsel’s failure to advise a
defendant of collateral immigration consequences of a
criminal conviction did not violate the Sixth Amendment.
See United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003),
abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010). As
indicated in Chaidez, reasonable jurists would have
interpreted that rule to mean that Strickland v. Washington,
466 U.S. 668 (1984), was simply not “operative” and did not
apply “when a criminal lawyer gives (or fails to give) advice
about immigration consequences.” Chaidez, 133 S. Ct. at
1110. In 2005, we made an exception to this general rule,
20                UNITED STATES V. CHAN

and held that Strickland does apply to a lawyer’s affirmative
misadvice about immigration consequences. United States v.
Kwan, 407 F.3d 1005, 1015 (9th Cir. 2005), abrogated in part
by Padilla, 559 U.S. 356. Because this exception was not
dictated by precedent, Kwan established a new rule. In order
to reach the opposite conclusion, the majority adopts the
reasoning of the dissent in Chaidez. Maj. Op. at 10–12, 14.
Because I think we should follow the Supreme Court’s
majority, not the dissenters, I decline to go along.

                               I

    Before pleading guilty to three counts of perjury in 2000,
Maureen Chan asked her attorney about the immigration
consequences of her plea. According to Chan, the attorney
told her that there would be no adverse immigration
consequences. In 2012, the Department of Homeland
Security initiated removal proceedings against Chan,
charging her as being inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) as an alien convicted of a crime
involving moral turpitude. Chan brought a petition for writ
of error coram nobis, seeking to withdraw her guilty plea on
the ground that her counsel in 2000 gave her ineffective
assistance by misadvising her of the immigration
consequences of her plea. She claims that the exception
stated in Kwan applies retroactively to her conviction in 2000.

    If Kwan created a new rule, it cannot be applied
retroactively to cases on collateral review. See Teague,
489 U.S. at 307, 310. Our reasoning in Fry indicates that our
pre-Kwan precedent did not dictate the result in Kwan, and
such a result would not have been apparent to all reasonable
jurists at the time of Chan’s conviction. See Chaidez, 133 S.
Ct. at 1107. In Fry, we considered whether a habeas
                   UNITED STATES V. CHAN                       21

petitioner’s claim that his Sixth Amendment right to effective
assistance of counsel was violated when his counsel failed to
inform him that he could be deported if convicted. 322 F.3d
at 1199–1200. Fry pointed to our long-standing precedent
that “deportation is a collateral, not direct, consequence of the
criminal process,” id. at 1200 (citing Fruchtman v. Kenton,
531 F.2d 946, 949 (9th Cir. 1976)), and that failure to advise
a defendant of collateral consequences is not ineffective
assistance of counsel, id. (citing Torrey v. Estelle, 842 F.2d
234, 237 (9th Cir. 1988)). Citing cases from the First,
Second, Fifth, Fourth, Seventh, Tenth, Eleventh and D.C.
Circuits, Fry also noted that “[a]ll other circuits to address the
question have concluded that deportation is a collateral
consequence of the criminal process and hence the failure to
advise does not amount to ineffective assistance of counsel.”
Id. (internal quotation marks omitted). Fry concluded,
consistent with both Ninth Circuit precedent and our sister
circuits, “that counsel’s failure to advise a defendant of
collateral immigration consequences of the criminal process
does not violate the Sixth Amendment right to effective
assistance of counsel.” Id. Fry did not suggest there was any
distinction between lack of advice about deportation and
misadvice about deportation. Nor would it have been
apparent to all reasonable jurists that we intended such a
distinction, given the general principle (subsequently spelled
out by the Supreme Court) that “there is no relevant
difference between an act of commission and an act of
omission” for purposes of ineffective assistance of counsel,
and thus a lawyer’s advice includes a lawyer’s “affirmative
misadvice.” Padilla, 559 U.S. at 370.

    By concluding that the petitioner could not raise an
ineffective assistance of counsel claim because deportation is
a collateral consequence of the criminal process, Fry
22                UNITED STATES V. CHAN

effectively recognized, in keeping with our sister circuits, that
“advice about matters like deportation, which are ‘not a part
of or enmeshed in the criminal proceeding,’ does not fall
within the [Sixth] Amendment’s scope.” Chaidez, 133 S. Ct.
at 1109 (quoting United States v. George, 869 F.2d 333, 337
(7th Cir. 1989)). This conclusion derives from the more
general principle that if a defendant has no constitutional
right to effective assistance of counsel with respect to a
collateral matter, an attorney’s error with respect to such a
matter could not violate the defendant’s Sixth Amendment
right. Cf. Coleman v. Thompson, 501 U.S. 722, 752–53
(1991) (where there is no constitutional right to counsel, there
is no deprivation of effective assistance regardless whether
the attorney makes a serious error in representing the client).
Accordingly, before Kwan was decided, a reasonable jurist
could conclude that an attorney’s “advice about collateral
matters” was “excluded . . . from the Sixth Amendment’s
ambit,” and therefore Strickland did not apply “when a
criminal lawyer gives (or fails to give) advice about
immigration consequences.” Chaidez, 133 S. Ct. at 1110.
Indeed, nothing in our case law would have precluded us
from reaching such a conclusion.

     We decided to take a different approach. In 2005, Kwan
distinguished Fry and held for the first time that Strickland
applied to an affirmative misrepresentation regarding
immigration consequences. See Kwan, 407 F.3d at 1015
(citing United States v. Couto, 311 F.3d 179, 187–88 (2d Cir.
2002)). While other circuits had reached this conclusion as
well, no Ninth Circuit case had previously adopted this
exception to the collateral consequences rule.

    Did Kwan announce a new rule? Chaidez strongly
indicates it did so. As explained in Chaidez, making an
                  UNITED STATES V. CHAN                    23

exception to the collateral consequences rule that advice
regarding deportation is “‘categorically removed’ from the
scope of the Sixth Amendment right to counsel,” 133 S. Ct.
at 1108, requires a court to breach “the previously
[fissure]-free wall between direct and collateral
consequences” and establish that Strickland did apply to
claims of ineffective assistance of counsel relating to
deportation matters, id. at 1110. Such a breach in the wall
between direct and collateral consequences constitutes
“‘breaking new ground’ or ‘imposing a new obligation,’” and
therefore creates a new rule that is not retroactively
applicable. Id. (alterations omitted). In reaching this
conclusion, Chaidez rejected the defendant’s argument that a
breach in the wall between direct and collateral consequences
(made by Padilla) did not constitute a new rule because it
“did no more than apply Strickland to a new set of facts.” Id.
at 1111. Rather, the Court explained, before considering the
applicability of Strickland, Padilla had to determine “whether
Strickland applied at all.” Id. at 1110.

    We should reach the same conclusion here. Because we
adopted the collateral consequences rule based on our long-
standing precedent, see Fry, 322 F.3d at 1200, a jurist could
reasonably conclude that Strickland didn’t apply at all to “a
lawyer’s advice (or non-advice) about a plea’s deportation
risk,” Chaidez, 133 S. Ct. at 1110. Two years later, Kwan
created a “separate rule,” id. at 1112, by distinguishing Fry
and holding that the Sixth Amendment applied to affirmative
misadvice by counsel regarding the collateral matter of
deportation, see Kwan, 407 F.3d at 1015–17. As explained in
Chaidez, such a rule had to first breach “the previously
[fissure]-free wall between direct and collateral
consequences” and establish that Strickland applied to
collateral deportation matters, when the attorney gives
24                UNITED STATES V. CHAN

affirmative misadvice. Chaidez, 133 S. Ct. at 1110. Kwan’s
exception was not dictated by Strickland, because Kwan first
had to reach the conclusion that “Strickland applied at all.”
Id. Accordingly, we should conclude that Kwan was not the
mere application of Strickland, but rather created a new rule
that is not retroactively applicable. See Teague, 489 U.S.
288.

                               II

    The majority’s arguments regarding why Kwan did not
create a new rule are not persuasive. Like the defendant in
Chaidez, Chan and the majority here argue that Kwan was a
simple application of Strickland. Maj. Op. at 11–12. But this
is the very argument rejected by Chaidez. Indeed, in
concluding that Kwan was just an application of Strickland,
the majority is forced to rely on the language of Chaidez’s
dissent. Maj. Op. at 14 (quoting Chaidez, 133 S. Ct. at 1119
(Sotomayor, J., dissenting)) (“Kwan merely asserted an ‘age-
old principle’ that attorneys can be held liable if they
affirmatively misadvise their clients.”).

    Second, the majority argues that Kwan’s rule is not new
because it can be retrospectively supported by Strickland.
Maj. Op. at 11–12. Of course at some level of generality
even a new rule can be justified by reference to prior case
law. See, e.g., Saffle v. Parks, 494 U.S. 484, 489–90 (1990)
(concluding that extending the reasoning of two prior cases
resulted in the creation of a new rule). But the correct inquiry
is whether the Kwan rule was dictated by our precedent, see
Teague, 489 U.S. at 301, and the majority cites no Ninth
Circuit cases that would suggest that all reasonable jurists at
the time of Chan’s conviction would predict the
announcement of a rule that affirmative misadvice about
                  UNITED STATES V. CHAN                      25

immigration consequences would be exempt from the firm
barrier that existed between direct and collateral
consequences. See Chaidez, 133 S. Ct. at 1110. Rather, a
jurist could have reasonably concluded that an attorney’s
error with respect to collateral immigration matters was
simply outside the scope of the Sixth Amendment.

    Finally, the majority defends its position that Kwan did
not create a new rule by pointing to the other circuits and out-
of-circuit district courts that had adopted a similar exception
for affirmative misrepresentations prior to Kwan. Maj. Op.
at 13–14. But Chaidez made clear that the fact that “a
minority of courts recognized a separate rule for material
misrepresentations,” Chaidez, 133 S. Ct. at 1112, was
insufficient to establish that all reasonable jurists would have
concluded that the Sixth Amendment applied to the collateral
consequence of deportation, id. In other words, the existence
of these out-of-circuit decisions does not establish that all
reasonable Ninth Circuit judges, “prior to [Kwan], thought
they were living in a [Kwan]-like world.” Id. As noted
above, we had adopted the collateral consequences rule, see
Fry, 322 F.3d at 1200–01, and made no mention of the
separate material misrepresentation rule later adopted in
Kwan. More to the point, Chaidez indicates that the
exception to the collateral consequences rule that Kwan
ultimately adopted constituted a “separate rule,” not simply
an application of Strickland. 133 S. Ct. at 1112.

                              III

    The concurrence similarly misses the mark in concluding
that when a court announces a rule in the course of deciding
a coram nobis petition, that rule is binding on all subsequent
coram nobis petitions. This argument is in tension with our
26                UNITED STATES V. CHAN

case law, which properly adheres to Teague. Thus in Ortega
v. Roe, rather than apply a rule announced in a prior habeas
case without considering whether that rule existed at the time
Ortega’s conviction became final, we instead considered
whether the rule was in fact “new,” as defined by Teague.
See 160 F.3d 534, 536 (9th Cir. 1998), vacated on other
grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000). This
same approach would apply in coram nobis proceedings,
because in determining whether a rule applies retroactively,
we do not distinguish between habeas and coram nobis. See
United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.
1991); United States v. Walgren, 885 F.2d 1417, 1421 (9th
Cir. 1989).

    Finally, the concurrence’s argument that any rule
announced in the course of deciding a coram nobis petition
must be applied to subsequent coram nobis cases is contrary
to Teague, which made clear that a new rule may be applied
retroactively to cases on collateral review only “if it places
‘certain kinds of primary, private individual conduct beyond
the power of the criminal law-making authority to
proscribe,’” or “if it requires the observance of ‘those
procedures that . . . are implicit in the concept of ordered
liberty.’” 489 U.S. at 307, 310, quoting Mackey v. United
States, 401 U.S. 667, 692–93 (1971) (Harlan, J., concurring).
Not all new rules in coram nobis cases will pass such a high
bar, and the rule announced in Kwan does not come close. Of
course, the question whether a rule announced in a federal
habeas or coram nobis proceeding is a “new rule” should
seldom arise, since the Supreme Court has banned using
habeas corpus (and by extension, other collateral proceedings
such as coram nobis) to create new constitutional rules of
criminal procedure unless the rules meet the two exceptions
described in Teague. See 489 U.S. at 316. But as explained
                 UNITED STATES V. CHAN                    27

above, Chaidez requires us to conclude that the rule
announced in Kwan was a new rule, and therefore we must
comply with Teague in considering whether it is applicable
here.

                             IV

    Although Chan’s case is sympathetic, the result in Kwan
“was not dictated by precedent existing at the time [Chan’s]
conviction became final” and would not “have been apparent
to all reasonable jurists.” Chaidez, 133 S. Ct. at 1107
(internal quotation marks omitted). As such, Kwan created a
new rule and cannot be applied retroactively to Chan’s case.
See Teague, 489 U.S. at 301, 310. I would affirm the district
court.
