Avendano-Silva et al v. United States of America
Filing
35
ORDER DENYING MOTION FOR CORAM NOBIS RELIEF Petition for Writ of Habeas Corpus re 1 While recognizing the pain Petitioners and their children will suffer, this court concludes that the factual record and applicable law require denial of th e coram nobis motion. The Clerk of Court is directed to file a copy of this order in both the criminal and civil cases, Criminal No. 11-00763 SOM and Civil No. 24-00137 SOM/RT, and to enter judgment in the civil case in favor of the Government. Signed by JUDGE SUSAN OKI MOLLWAY on 10/25/2024. (cib)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
vs.
)
)
DANIEL AVENDANO-SILVA; and
)
YESICA VILLANUEAVA-MARTINEZ, )
)
Defendants.
)
_____________________________ )
CRIM. NO. 11-00763 SOM
CIV. NO. 24-00137 SOM/RT
ORDER DENYING MOTION FOR CORAM
NOBIS RELIEF
ORDER DENYING MOTION FOR CORAM NOBIS RELIEF
I.
INTRODUCTION.
Petitioners Daniel Avendano-Silva and Yesica
Villanueva-Martinez present an undeniably sympathetic case for
coram nobis relief, but the court is ultimately unpersuaded that
it should issue the extraordinary writ they seek.
Petitioners came separately to the United States from
Mexico as minors.
Both entered without legal authorization and
remain here illegally, having been in the United States for
decades.
They have three children born in the United States and
strong community ties.
They are facing deportation not only
because of their illegal entry but also because they were
convicted in 2012 of crimes that the law deems to involve moral
turpitude (“CIMTs”).
On March 21, 2024, Petitioners moved for coram nobis
relief.
Claiming ineffective assistance of counsel, they seek to
vacate the 2012 convictions on the ground that they were not
timely advised that the CIMT convictions ensured deportation.
On
September 11 and 23, 2024, this court held evidentiary hearings
with respect to the coram nobis motion.
As sympathetic as their
circumstances are, Petitioners were not credible with respect to
many of their contentions.
Applying the facts to established
law, the court denies their motion.
II.
FINDINGS OF FACT.
1.
If any finding of fact is more properly construed
as a conclusion of law, or vice versa, it should be construed as
such.
2.
The following individuals testified live before
this court:
3.
a.
Daniel Avendano-Silva;
b.
Yesica Villanueva-Martinez;
c.
Yesica Kailani Avendano-Villanueva; and
d.
Gary Singh, Esq.
The parties agreed that the court may consider as
evidence statements made in the declarations submitted in
conjunction with the present motion, including the Declaration of
Johnny Sinodis, Esq., ECF No. 61-2, even though he did not
testify live before the court.
See Transcript of Proceeding, ECF
No. 94, PageID # 587 (Sept. 11, 2024).
The court also considered
Petitioners’ Exhibits 1, 5, 6, and 7 and Government Exhibits 10
to 31, which were all received in evidence without objection.
2
4.
The parties also stipulated to the Government’s
proffer that it could not locate the original passport
applications that Petitioners submitted to the United States Post
Office, that it could not locate Petitioners’ written admissions,
and that it could not locate the evidence pertaining to crimes
that Petitioners ended up not being charged with.
Accordingly,
no person testified with respect to matters contained in the
proffer.
5.
Richard Witt provided interpretation services at
the hearings held on September 11 and 23, 2024.
Mr. Witt
replaced the original interpreter on September 11, 2024.
The
court very much appreciated Mr. Witt’s making himself available
to provide interpretation services on short notice.
6.
As described in more detail below, the court’s
observations of Petitioners’ live testimony and the substance of
that testimony have caused this court to question Petitioners’
credibility on many points.
inaccuracy.
At times their testimony veered into
This court understands that the hearings it
conducted may well have involved language complexities, with
Petitioners testifying in Spanish.
In addition, the testimony
addressed occurrences covering many years, which may have made
precise recollection difficult.
The court is therefore not
saying that Petitioners engaged in deliberate attempts to mislead
3
this court on every point in contention.
In the end, however,
their testimony was not always believable.
Petitioners’ Upbringing.
7.
Avendano-Silva was born in Santo Tomas, Oaxaca,
Mexico in 1977.
See Decl. of Daniel Avendano-Silva, ECF No.
61-3, PageID # 317; See Transcript of Proceedings, ECF No. 94,
PageID # 570 (Sept. 27, 2024).
on the Big Island of Hawaii.
He currently lives in Waikoloa,
See id., PageID #s 563 and 569.
He
speaks Mixtec and Spanish fluently, but his English skills are
limited.
See id.
English fluently.
He testified that, in 2011, he did not speak
See id., PageID #s 572, 575.
In fact, his
former attorney (Gary Singh) testified that Avendano-Silva’s
English ability was “almost zero.”
PageID # 700.
Singh Test., ECF No. 95,
His daughter, Yesica Kailani Avendano-Villanueva,
confirmed that Avendano-Silva did not speak English at the time
of his criminal proceedings.
See Avendano-Villanueva Test., ECF
No. 95, PageID # 676 (indicating that neither of her parents
spoke English in 2011).
some English.
But Avendano-Silva clearly understands
For example, the court noticed that when he was
asked if the reason he was in court on September 11, 2024, was
because he wanted to remain in the United States, he answered
“Si” or “Yes” without waiting for the question to be translated.
His wife, Villanueva-Martinez, testified that her husband’s
4
English ability is about the same now as it was in 2011.
See
Villanueva-Martinez Test., ECF No. 94, PageID # 645.
8.
Avendano-Silva grew up in Mexico, where his family
was “very poor” and sometimes had no food.
His “parents drank a
lot” and were physically and verbally abusive.
Id., PageID #s
317-18; Avendano-Silva Test., ECF No. 94, PageID # 571.
When
Avendano-Silva was seventeen, one of his brothers suggested he
move to Hawaii to pursue a better life.
He moved because he
could not see a future for himself in Mexico.
9.
See id.
Villanueva-Martinez, born in 1983 in Tuxpan,
Nayarit, Mexico, also had a difficult childhood, describing it as
“extremely hard and depressing.”
See Decl. of Yesica
Villanueva-Martinez, ECF No. 61-4, PageID #s 331-32;
Villanueva-Martinez Test., ECF No. 94, PageID # 627.
Her
earliest memories are of being physically abused by her father.
See id.
When she was around four years old, her mother moved to
Minnesota, intending to earn enough money to eventually bring her
children there.
See id.
Shortly after her mother moved to the
United States, Villanueva-Martinez’s father abandoned her and her
siblings.
poor.”
Her older sister then raised her.
See id.
They were “very
When Villanueva-Martinez was around eleven or
twelve, her mother had a family member bring her to the United
States, and they ultimately settled in Hawaii.
See id.;
Villanueva-Martinez Test., ECF No. 94, PageID # 628.
5
10.
Villanueva-Martinez’s declaration indicates that
she did not complete school beyond ninth grade, although she
testified that she went to school only up to seventh or eighth
grade.
#
Compare Villanueava-Martinez Decl, ECF No. 61-4, PageID
331 (“I did not complete beyond Ninth Grade.”) with
Villanueva-Martinez Test., ECF No. 94, PageID # 631 (“the highest
I got was seven or eight, 7th or 8th grade”).
She can speak and
understand some English, but she predominantly communicates in
Spanish at home, at work, and socially.
See Villanueva-Martinez
Decl, ECF No. 61-4, PageID # 336; Villanueva-Martinez Test., ECF
No. 94, PageID # 646.
11.
Petitioners met in the United States, got married
in 2006, and have three children, all of whom are U.S. citizens.
See Avendano-Silva Decl., ECF No. 61-3, PageID #s 318-19;
Villanueva-Martinez Decl., ECF No. 61-4, PageID #s 332-33;
Villanueva-Martinez Test., ECF No. 94, PageID # 628.
Avendano-Silva testified that the children are Kailani Yesica
Avendano-Villanueva (26), Daniel Avendano-Villanueva (21), and
Leslie Daniela Avendano-Villanueva (16).
# 570.
See ECF No. 94, PageID
The family has “deep ties” in the community and is active
in the Waikoloa Community Church.
See Avendano-Silva Decl., ECF
No. 61-3, PageID # 319; Villanueva-Martinez Decl., ECF No. 61-4,
PageID # 333.
It is clear to this court that if Petitioners are
6
forced to leave the United States, the family breakup will be
indescribably painful and wrenching.
Petitioners’ Pre-Arrest Conduct.
12.
In 2009, Petitioners applied for United States
passports for their children, thinking the passports would be
evidence of the children’s United States citizenship if
Petitioners were ever deported.
See Avendano-Silva Decl., ECF
No. 61-3, PageID # 319; Villanueva-Martinez Decl., ECF No. 61-4,
PageID # 333; Avendano-Silva Test., ECF No. 94, PageID # 572.
The applications were submitted at a United States Post Office,
where a postal employee asked Petitioners for identification.
The employee refused to accept their Mexican passports as valid
forms of identification.
See Avendano-Silva Decl., ECF No. 61-3,
PageID # 319; Avendano-Silva Test., ECF No. 94, PageID # 589.
“[A]fraid of admitting that [they] were living in the United
States without immigration status,” they presented false
permanent resident cards to the employee.
Avendano-Silva Decl.,
ECF No. 61-3, PageID # 319.
13.
Two years later, in 2011, Government agents
visited Petitioners at their home to discuss the passport
applications.
See Avendano-Silva Decl., ECF No. 61-3, PageID #
320; Villanueva-Martinez Decl., ECF No. 61-4, PageID # 333.
Petitioners cooperated, answering questions in their living room.
See Avendano-Silva Decl., ECF No. 61-3, PageID # 320;
7
Villanueva-Martinez Decl., ECF No. 61-4, PageID # 334.
At the
end of the conversation, which was in English, the agents said
that they had to arrest one of them.
Avendano-Silva volunteered.
See Avendano-Silva Decl., ECF No. 61-3, PageID # 320;
Villanueva-Martinez Decl., ECF No. 61-4, PageID # 334; AvendanoSilva Test., ECF No. 94, PageID # 573; Avendano-Villanueva Test.,
ECF No. 95, PageID # 676.
The arrest occurred on July 27, 2011.
See ECF No. 47 (Avendano-Silva’s Presentence Investigation
Report), PageID # 188.
Petitioners Retained Gary Singh as Their Attorney,
Who Clearly Knew That They Were Mexican
Citizens Not in the United States Legally.
14.
On July 28, 2011, the day after Avendano-Silva was
arrested, the Government sought to detain him pending trial
because he was a citizen of a foreign country or an unlawfully
admitted person.
See id, ECF No. 5.
He appeared before a
Magistrate Judge and was detained pending a detention hearing.
Federal Public Defender made a special appearance to represent
A
Avendano-Silva, who was retaining private counsel.
interpreter Miguel Saibene translated that hearing.
Magistrate No. 11-00814, ECF Nos. 2-3.
Spanish
See
While Avendano-Silva
testified that he had never met any interpreter named “Miguel,”
see ECF No. 94, PageID # 575, court records establish that
Saibene was present (although the court does not fault AvendanoSilva for not recalling the interpreter’s name years later).
8
15.
Villanueva-Martinez’s sister-in-law, Dayvalene
Avendano, told Villanueva-Martinez to find an attorney.
After
several internet searches, Villanueva-Martinez decided to contact
Gary Singh, Esq.
She called Singh, using Dayvalene Avendano as
an interpreter because Dayvalene understood a lot of Spanish,
even though she spoke little Spanish.
Singh asked
Villanueva-Martinez to send him whatever paperwork she had.
After reviewing the paperwork, Singh told Villanueva-Martinez
that he could represent both her and her husband.
See
Villanueva-Martinez Decl., ECF No. 61-4, PageID # 335;
Villanueva-Martinez Test., ECF No. 94, PageID #s 629-30.
16.
Singh testified that he was able to represent both
Petitioners because, in his opinion, there was no conflict of
interest.
Singh explained that both Petitioners were in
agreement with respect to what had happened, and both wanted to
take responsibility.
See Singh Test., ECF No. 95, PageID # 693.
Singh said he obtained a written conflict waiver from Petitioners
but no longer has a copy of the 2011 waiver, given his
understanding that he had to maintain client files for only six
years.
See id., PageID #s 688, 736.
17.
Discussing circumstances a little out of
chronological order to provide fuller context regarding the
conflict waiver, this court notes that, in September 2011, Singh
told the court that both Petitioners had waived any conflict.
9
See ECF No. 55, PageID # 237.
Villanueva-Martinez testified, by
contrast, that Singh never told her that representing her and her
husband might be a conflict of interest, and never asked her to
sign a document pertaining to conflicts of interest.
Avendano-Silva Test., ECF No. 94, PageID # 631.
See
On that point,
Villanueva-Martinez is not credible, having stood silent at the
hearing at which Singh asserted the existence of a waiver.
Importantly, there was an interpreter at that hearing.
See
Transcript of Hearing, ECF No. 55, PageID # 236 (“THE COURT: Good
Afternoon.
The record will also reflect the presence of Spanish
interpreter Luz Vega.”).
18.
Singh’s standard client intake form asked for the
client’s name, address, birthday, country of birth, Social
Security number, the client’s status as a United States citizen
or green card holder, email, telephone number, and alien
registration number, if any.
According to Singh, the alien
registration number allowed him to determine the client’s
immigration status.
See Singh Test., ECF No. 95, PageID # 690.
Singh testified that Petitioners’ claim that he never asked them
about their immigration status makes no sense, especially in
light of the nature of the case.
Compare Singh Test., ECF No.
95, PageID # 691 (“This entire case deals with immigration.
For
anyone to say that I did not ask them about their immigration
status makes no sense to me.”), with Avendano-Silva Decl., ECF
10
No. 61-3, PageID # 322 (“Mr. Singh never asked me about my
immigration status.”); Villanueva-Martinez Decl., ECF No. 64-1,
PageId # 336 (same); Villanueva-Martinez Test., ECF No. 94,
PageID # 654 (indicating that, before she pled guilty, she and
Singh had not discussed her immigration status).
Moreover,
Villanueva-Martinez admitted that she told Singh that she was not
legally in the country.
See Villanueva-Martinez Test., ECF No.
94, PageID # 654.
19.
On August 1, 2011, Singh, newly retained, asked
for a short continuance of the detention hearing, which was moved
to the following day.
On August 2, 2011, Avendano-Silva was
ordered detained because his immigration status as an unlawfully
admitted person made him a flight risk.
See id., ECF No. 9,
PageID # 25.
20.
On August 10, 2011, a Grand Jury charged
Petitioners with: falsely stating in applications for three
different passports (and aiding and abetting each other) that
they had not presented false documents when they had indeed
presented fraudulent permanent resident cards as proof of
identity in violation of 18 U.S.C. §§ 1542 and 2 (Counts 1, 4,
and 7); and falsely claiming to be United States citizens when
applying for three different passports in violation of 18 U.S.C.
§ 911 (Counts 2, 3, 5, 6, 8, and 9).
Petitioners were Mexican citizens.
11
The Indictment alleged that
See ECF No. 11.
There is no
question that Singh knew, at the very least, that Petitioners
were not U.S. citizens and were accused of lacking permanent
resident status.
21.
On August 11, 2011, both Petitioners pled not
guilty to the charges in the Indictment.
Spanish interpreter Luz
Vega interpreted for them at the arraignment hearing.
Villanueva-Martinez was released on a $10,000 unsecured bond.
See ECF No. 15.
The docket in this case indicates that
Petitioners later surrendered their Mexican passports.
See ECF
Nos. 21-22.
Petitioners Are Not Credible in Contending That They
Only Had Interpretation Services for In-Court Proceedings.
22.
Villanueva-Martinez says the first time she met
Singh was at her first hearing.
She says Dayvalene Avendano
translated a short conversation during which Singh told her that
their case was very difficult but that he would do everything he
could to fight for them.
See Villanueva-Martinez Decl., ECF No.
61-4, PageID #s 335-36.
Villanueva-Martinez says that, from that
point forward, the conversations she had with Singh were very
short, in English, and at the courthouse.
Id.
She says that she
could not understand most of these conversations because they
were in English and there was no professional interpreter aiding
them.
She represents that the only time there was a professional
interpreter was when one was present at a hearing.
12
Id.
23.
Avendano-Silva says that it was
Villanueva-Martinez who hired Singh to represent them.
According
to Avendano-Silva, during the duration of the criminal case, he
met with Singh only two or three times outside of court, each
time without an interpreter.
Avendano-Silva says much of what
Singh said was incomprehensible to him because there was no
interpreter.
He says he first met Singh at the prison about a
week after his arrest.
He says Singh told him that Singh was
going to get him out of custody, but never discussed immigration
consequences relating to the criminal charges he was facing, and
never explained the term “crime involving moral turpitude.”
See
Avendano-Silva Decl., ECF No. 61-3, PageID # 320-21; AvendanoSilva Test., ECF No. 94, PageID #s 574-76.
24.
Avendano-Silva clearly understands a limited
amount of English.
What concerns the court is how, if there was
no interpreter, he was able to understand statements about
getting out of jail and to know that immigration consequences and
crimes involving moral turpitude were allegedly not discussed.
Singh testified that, to communicate with Avendano-Silva, he had
to use a Spanish interpreter because Avendano-Silva spoke almost
no English.
25.
See Singh Test., ECF No. 95, PageID # 700.
Avendano-Silva says that when he saw Singh again
at the prison Singh told him he had to plead guilty, as that was
the fastest way for him to get released from custody. He says
13
Singh did not explain options, and that no interpreter was
present.
See Avendano-Silva Decl., ECF No. 61-3, PageID # 321;
Avendano-Silva Test., ECF No. 94, PageID # 577.
26.
Avendano-Silva says that September 13, 2011, the
day he signed his plea agreement, was the first time he had the
assistance of an interpreter.
At that time, Singh told Avendano-
Silva through an interpreter that, to reduce the charges and
amount of jail time he would have to serve, he had to plead
guilty.
Avendano-Silva says Singh told him through the
interpreter to tell the court that he understood the terms of the
plea agreement when asked.
61-3, PageID # 322.
See Avendano-Silva Decl., ECF No.
Avendano-Silva testified that before then,
he had had a discussion with Singh about the plea agreement that
was in English with no interpreter present.
That discussion
occurred on Singh’s second or third visit with Avendano-Silva at
the prison.
See Avendano-Silva Test., ECF No. 94, PageID #s 577,
594.
27.
According to Singh, he met with Avendano-Silva 10
to 12 times, but the record is not clear on the time span.
That
is, Singh might have been including meetings after the criminal
case had concluded and immigration proceedings or other related
matters were in issue.
What Singh is indeed clear about saying
is that an interpreter was present at each meeting.
Test., ECF No. 95, PageID #s 704-05.
14
See Singh
28.
Singh says he had a separate discussion about the
plea agreement with each Petitioner, as Avendano-Silva was
detained.
Singh says that Spanish interpreter Miguel Saibene
translated these discussions.
Singh says that he has recently
been informed that Saibene has passed away, id.; Saibene’s death
certificate is in evidence as Exhibit 26.
See ECF No. 94, PageID
# 586 (receiving into evidence Exhibits 10 through 31).
29.
Singh remembered having a phone conversation with
the interpreter and Villanueva-Martinez during which they went
over her plea agreement.
Singh testified, “She had a copy of it,
going through it to see if there were any questions.”
He said
his similar “walk-through” with Avendano-Silva occurred at the
Federal Detention Center, with Miguel Saibene as an interpreter.
See Singh Test., ECF No. 95, PageID #s 705-06.
Singh does not
have billing statements for Saibene’s work, as he no longer has
his client files.
See Singh Test., ECF No. 95, PageID #s 688,
708.
30.
At their change of plea hearings on September 13,
2011, both Petitioners told the court under oath that they had
signed the plea agreements, that they had had the opportunity to
read and discuss the plea agreements with their lawyer before
signing them, that the plea agreements had been translated and
explained to them in Spanish, and that they understood the plea
agreements.
See ECF No. 55, PageID #s 244-45.
15
Villanueva-
Martinez now claims that she was not truthful when she told the
judge that the plea agreement had been translated for her.
See
Villanueva-Martinez Test., ECF No. 94, PageID # 659.
31.
Petitioners are arguing that they previously lied
to the court when asked whether the plea agreements had been
translated and explained to them, but that they are now telling
the truth in claiming that they did not understand the plea
agreements and that the plea agreements were never explained to
them in Spanish.
This court declines to accept this proposition.
Petitioners are not credible in saying that Singh never used a
translator in out-of-court conversations with them.
Petitioners’
limited English abilities would have been obvious to Singh;
Petitioners are admitting to having lied to the court.
During
the guilty plea colloquy, nothing prevented them from telling the
court, through the interpreter, Luz Vega, that the plea
agreements had not been translated.
Nor do they offer any reason
that Singh would have avoided translation.
Singh was charging
Petitioners and presumably passing on translation costs.
had no motive to proceed without an interpreter.
Singh
Moreover, even
assuming Singh told Petitioners to assure the court they
understood the terms of the plea agreement, there would have been
nothing wrong with that advice from Singh if there had been prior
discussions with the aid of an interpreter.
In that event, Singh
would only have been telling his clients what to expect at the
16
change of plea hearing.
In short, numerous factors cause this
court to disbelieve Petitioners’ assertion that the plea
agreements were not translated ahead of the change-of-plea
hearing.
Petitioners Are Not Credible in Saying That They
Would Not Have Pled Guilty Had They Known of
the Immigration Consequences of Their Pleas.
32.
Avendano-Silva says that, had he known how
pleading guilty would affect his immigration status, he would
have asked Singh to negotiate a different plea agreement and
would have rejected any plea agreement offer that would have made
him deportable, inadmissible, and ineligible to defend against
deportation.
See Avendano-Silva Test., ECF No. 94, PageID # 585.
Villanueva-Martinez similarly says that, had she known the
immigration consequences of her guilty plea, she would have
rejected the plea agreement and insisted on going to trial if an
immigration-safe plea agreement could not be obtained.
See
Villanueva-Martinez Decl., ECF No. 61-4, PageID # 337.
Both
Petitioners claim that Singh failed to discuss immigration
consequences with them at all.
See Avendano-Silva Decl., ECF No.
61-3, PageID # 323 (“Mr. Singh never advised me of the
immigration consequences of my charges and he never suggested
negotiating for an immigration-safe plea agreement.”);
Villanueva-Martinez Decl., ECF No. 61-4, PageID # 336 (“Mr. Singh
never advised me of the immigration consequences of my charges
17
and he never suggested negotiating for an immigration-safe plea
agreement.”); Villanueva-Martinez Test., ECF No. 94, PageID # 642
(stating that, as of October 2022, Singh had never told her that
the crimes she pled guilty to would make it impossible to seek
cancellation of removal).
33.
Singh, on the other hand, says he
knew, and clearly advised both of them, that
they would face removal from the United
States . . . . Either they would be removed
because the immigration court would find that
their conviction under 18 U.S.C. § 1542 was a
crime involving moral turpitude (“CIMT”)-which I told them was virtually certain to be
the outcome--or because they made entry to
the United States without inspection, had no
legal basis for a legal status in the United
States (except asylum relief if they
qualified) and would be barred from re-entry
for 10 years following their removal under
Section 212(a)(A)(i)(I) of the INA. Their
main focus before the Federal Court was not
to be sent to jail or spend any additional
time in jail.
Singh Decl., ECF No. 76-5, PageID # 449.
The plea agreements did
not state that Petitioners would certainly be removed from the
country.
See Decl. of Jonny Sinodis, ECF No. 61-2, PageID # 313-
14 (citing the holding in Padilla v. Kentucky, 559 U.S. 356
(2010), that criminal defense attorneys have a duty to inform
their clients of the impact of a conviction on the client’s
removability).
Singh, however, says in his declaration that he
told them that they “would be removed.”
18
34.
Singh said he would have refused pleading
Avendano-Silva out “to something which was a hundred percent
clear that would trigger some severe immigration consequence.”
Singh Test., ECF No. 95, PageID # 741.
Singh said he discussed
the likelihood of Petitioners’ removal before they pled guilty.
He noted that, from the very beginning, Petitioners’ main
concerns were staying out of jail and remaining in the United
States as long as possible.
See id., PageID # 753.
In the plea
agreements, the Government agreed to drop the charges pertaining
to Petitioners’ false claims of United States citizenship, which
Singh thought were more clearly CIMTs.
35.
Id.
Singh says that both Petitioners hoped to stay in
the United States until their eldest daughter graduated from high
school.
See Singh Decl., ECF No. 76-5, PageID # 451; See also,
Singh Test., ECF No. 95, PageID # 692 (testifying that
Petitioners’ main goal was to get Avendano-Silva out of jail),
and
753 (“Their main concern was keeping out of jail and . . .
staying in the U.S. as long as possible.”).
Singh testified that
Avendano-Silva was “taking the lead in the case, and [VillanuevaMartinez’s] position was, [w]hatever my husband wants, I’m going
to go along.”
Id., PageID # 693; see also id., PageID # 705
(“her position was, I will do whatever my husband wants me to
do”).
To facilitate Avendano-Silva’s release from custody,
Petitioners told Singh that they wanted to change their pleas
19
quickly in the hope that Avendano-Silva would be sentenced to
time served.
Singh says they told him they were willing to move
back to Mexico.
See Singh Test., ECF No. 95, PageID # 28.
While
Petitioners’ oldest daughter did not hear her parents discuss
returning to Mexico, that does not mean they did not have such a
discussion with others.
See Avendano-Villanueva Test., ECF No.
94, PageID # 676.
36.
Petitioners’ unqualified assertion that Singh
never discussed immigration consequences with them is not
credible.
The very nature of the charges against them makes it
unlikely that Singh said nothing at all on that subject.
37.
Petitioners’ lack of credibility is highlighted
by their plea agreements, which provide, “Pleading guilty to
criminal offenses may also have adverse consequences with respect
to the Defendant’s immigration status and/or eligibility to
remain in the United States if [he/she] is not a citizen of the
United States.”
The plea agreements then state, “Under Federal
law, crimes involving . . . moral turpitude are deportable
offenses; and the Defendant’s plea to any such crime may subject
[him/her] to automatic deportation and removal from the United
States.”
Avendano-Silva Plea Agreement, ECF No. 29, PageID #s
73-74; Villanueva-Martinez Plea Agreement, ECF No. 32, PageID #
92.
20
38.
Singh says that, in describing immigration
consequences to Petitioners, he was “more firm” than the plea
agreements, in which the word “may” was used.
Singh says he told
Petitioners that he could not think of any relief they could get
from the immigration court, and he “made it clear, it’s a matter
of time when you guys are going to get deported.”
Singh Test.,
ECF No. 95, PageID # 703.
39.
Avendano-Silva claims that he did not read his
plea agreement and that no interpreter was present when he and
Singh discussed the plea agreement.
#s 593-94, 597.
See ECF No. 94, PageID
Villanueva-Martinez claims that Singh simply
told her in English without the assistance of an interpreter that
she had to plead guilty.
She says that he did not show her a
written plea agreement before she signed it and that no
interpreter read the document to her in Spanish.
See ECF No. 94,
PageID #s 633-34.
40.
As noted earlier, Singh recalls that he engaged
Saibene to interpret in communicating with Petitioners.
PageID # 450.
Id.,
Singh is certain that he explained to both
Petitioners that “the proposed agreement offered by the
government would almost certainly result in their removal.”
Id.,
PageID # 451.
41.
Each Petitioner signed a plea agreement, ECF Nos.
29 and 32, agreeing to plead guilty with respect to three counts
21
of passport fraud, including aiding and abetting each other, in
violation of 18 U.S.C. §§ 1542 and 2 (one count for each child
for which they presented fraudulent permanent resident cards as
their identification) and to one count of possessing a fraudulent
permanent resident card in violation of 18 U.S.C. § 1546(a)
(which was charged in a separate Information filed in Criminal
Nos. 11-00876 SOM and 11-00877 SOM on September 9, 2011).
42.
On September 13, 2011, pursuant to the plea
agreements, Petitioners pled guilty before a Magistrate Judge to
the passport fraud charges in Counts 1, 4, and 7 of the
Indictment and to the possession of a fraudulent resident card
charge in their respective Informations.
See ECF Nos. 26-27.
With the aid of Spanish interpreter Luz Vega, see Transcript of
Proceedings, ECF No. 55, PageID #s 236-37, both Petitioners
indicated that they had discussed the written charges against
them and all of the facts with Singh, and that they were
satisfied with his legal representation.
See id., PageID # 242.
Both understood that their convictions “might affect” their right
to remain in the United States because they were not United
States citizens.
See id., PageID #s 251-52.
Indeed, the
Magistrate Judge asked, “Since you are not United States
citizens, a conviction in this case might affect your right to
remain in this country.
Silva?”
Do you understand that, Mr. Avendano-
He answered, “Yes.”
The Magistrate Judge then asked
22
Villanueva-Martinez the same question.
See ECF No. 55, PageID #s 250-51.
She also answered, “Yes.”
Given those statements in
court, they lack credibility with respect to many of their
assertions.
Villanueva-Martinez’s testimony during coram nobis
proceedings that she had been untruthful when she told the
Magistrate Judge at her change of plea hearing that the plea
agreement had been interpreted into Spanish suggests a
willingness to make statements she believes could help her, even
if inaccurate.
See Villanueva-Martinez Test., ECF No. 94, PageID
# 642.
43.
The court holds Petitioners to their earlier in-
court statements that they understood what the plea agreements
contained and that the plea agreements had been translated for
them.
44.
On September 30, 2011, this judge accepted the
guilty pleas and adjudged Petitioners guilty of those offenses.
See ECF Nos. 34-35.
Given Avendano-Silva’s and Villanueva-
Martinez’s statements to the Magistrate Judge that their plea
agreements had been explained to them in Spanish, they are not
credible in asserting that immigration consequences were never
discussed by Singh.
Possibly, they do not remember that
explanation, or the discussion was insufficient in allegedly
failing to indicate the inescapability of deportation.
overstating, Petitioners lose credibility.
23
But in
Petitioners Were Not Offered and Were Unlikely
to be Offered “Immigration-Safe” Plea Agreements.
45.
Singh says that in cases like this one, with
“overwhelming” evidence against Avendano-Silva and
Villanueva-Martinez, his usual practice was to approach the
Assistant Unites States Attorney (“AUSA”) to discuss plea
options.
Because the criminal case took place between 2011 and
2012, Singh does not have his client files, which might have
included communications and notes of meetings.
Singh, ECF No. 95, PageID # 688.
See Test. of Gary
But Singh says he is certain
that he would have tried to obtain “immigration safe” pleas if
possible.
However, having had decades of experience, Singh says
he knew that the AUSA, Tracy Hino, “was not inclined to offer
such alternatives to Petitioners living in the U.S. illegally
under any circumstances.”
Id., PageID # 448.
Singh testified
that he had not heard of the U.S. Attorney’s Office offering
immigration-safe plea agreements.
PageID #s 696-97.
See Singh Test., ECF No. 95,
Petitioners introduced no evidence that
immigration-safe plea agreements had been offered to any
defendant in any other criminal case involving a similar
situation in this district during the relevant time period.
statement or testimony by Hino was offered by any party.
24
No
Sentencing and Subsequent Immigration Proceedings.
46.
In connection with her sentencing, Villanueva-
Martinez submitted an allocution letter, which the court took
into account in sentencing her.
See ECF No. 41-1, PageID # 130.
That letter stated, “[T]he reason why we applied for the
passports is [be]cause we wanted to move to Mexico so we wouldn’t
have to hide and my kids wouldn’t have to see their dad and mom
get taken away by the police or immigration.”
Id.
At the
hearing on the present motion, Villanueva-Martinez said that
Dayvalene Avendano wrote the letter signed by VillanuevaMartinez.
635-36.
See Villanueva-Martinez Test., ECF No. 94, PageID #s
Villanueva-Martinez testified that the sentence in the
letter about moving back to Mexico was “a big mistake” and that
she signed the letter without reading it.
See id., PageID # 650.
Although the letter is addressed to “your Honor,” she testified
that she could not clearly recall who the letter was supposed to
go to.
At one point, she testified that it was supposed to go to
an immigration judge.
However, she was only involved with the
criminal proceedings in this court at the time the letter was
submitted.
Immigration proceedings had not yet begun.
Even
viewing the letter in the light most favorable to Petitioners,
the court finds that it damages Villanueva-Martinez’s
credibility.
If indeed she signed a letter without knowing of
and agreeing with its contents, that gives this court pause about
25
the reliability of the declaration she signed and submitted in
support of the present motion.
47.
On January 12, 2012, the court sentenced
Avendano-Silva to time served, 3 years of supervised release, and
a $400 special assessment.
Villanueva-Martinez was sentenced to
3 years of probation and a $400 special assessment.
42-44.
See ECF Nos.
At the sentencing hearing, this judge told Petitioners
that they had to cooperate with the United States Department of
Homeland Security, including participating in any removal
hearing.
See ECF No. 54, PageID # 227.
48.
In January 2012, immigration authorities served
Petitioners with notices to appear, beginning removal proceedings
with respect to the allegation that they were present in the
United States without admission or parole.
PageID # 429.
See ECF No. 76-1,
Singh testified that the immigration proceedings
had been anticipated and that Petitioners’ goal was to delay
removal so they could see their oldest daughter graduate from
high school.
See Singh Test., ECF No. 95, PageID # 711.
Singh
says he explained to Petitioners that they did not have a great
chance of being allowed to remain in the United States.
See id.,
PageID # 712.
49.
An interpreter was present at all immigration
court hearings and translated the proceedings into Spanish for
Petitioners.
See ECF No. 94, PageID # 662.
26
50.
At a hearing on October 15, 2012, the Immigration
Judge informed Petitioners that there was a “big change” in their
cases because Homeland Security had added another charge.
See
Transcript of Hearing (Oct. 15, 2012), Ex. 23 at Bates Stamp
000071.
This “big change” referred to additional charges levied
in the removal proceedings, asserting that Petitioners were
removable because they had been convicted of CIMTs (the passport
fraud and possession of fraudulent resident cards charges to
which they had pled guilty).
See ECF No. 76-1, PageID # 429.
The Immigration Judge continued the hearing until November 5,
2012, to allow Petitioners to analyze whether they were eligible
for cancellation of removal.
See Transcript of Hearing (Oct. 15,
2012), Ex. 23 at Bates Stamp 000074.
51.
At the November 5, 2012, hearing, Petitioners
contested any removability that was based on a CIMT conviction.
See Transcript of Hearing (Nov. 5, 2012), Ex. 23 at Bates Stamp
000082-83.
Singh argued at that hearing that the convictions
lacked the fraudulent intent necessary to establish a CIMT,
noting that Petitioners had presented false identifications only
to obtain a benefit that their children were entitled to.
See
id. at Bates Stamp 000089-90; Singh Test., ECF No. 95, PageID #
720 (arguing that Petitioners did not benefit from using false
identification).
The Government, on the other hand, argued that
the convictions were CIMTs because Petitioners were trying to get
27
passports using false information.
See Transcript of Hearing
(Nov. 5, 2012), Ex. 23 at Bates Stamp 000095.
52.
The Immigration Judge allowed the parties to file
written briefs, explaining to Petitioners, “So just to make sure
you understand, the lawyers are going to write legal arguments.
I will decide if the convictions bar you from the application” to
cancel removal proceedings.
Id. at Bates Stamp 000103.
Clearly,
by November 2012, Petitioners had been told that there was an
issue regarding whether they had been convicted of crimes barring
them from seeking relief from removal proceedings.
Even assuming
that Petitioners are correct in saying that they received certain
immigration documents but did not know what the documents said,
see, e.g., Avendano-Silva Test., ECF No. 94, PageID # 607, they
would have had an interpreter explaining what was happening
during the immigration proceedings.
53.
In December 2012, the Government made an oral
motion to “pretermit” Petitioners’ applications to cancel the
removal proceedings.1
Petitioners conceded removability based on
the initial charges that they were present in the United States
without admission or parole, and the Immigration Judge so found
based on clear and convincing evidence.
1
However, Petitioners
A motion to “pretermit” seeks a determination that an
“applicant has failed to establish statutory eligibility for
relief.” See Guamanrrigra v. Holder, 670 F.3d 404, 408 n.10 (2d
Cir. 2012) (citing 8 C.F.R. § 240.21).
28
sought cancellation of the removal proceedings, arguing that
cancellation was permissible for illegal presence and that, with
respect to the additional charges, removability should not be
based on any CIMT because their convictions did not involve
CIMTs.
54.
Singh testified that he thought it was “unclear”
whether he would be successful in arguing to the Immigration
Judge in 2012 that the § 1542 passport fraud convictions were not
CIMTs.
See ECF No. 95, PageID # 722.
Singh admitted that he was
not aware of the 1958 Ninth Circuit case, Bisaillon v. Hogan, 257
F.2d 435 (9th Cir. 1958), which Petitioners’ coram nobis counsel
represented to Singh at the coram nobis hearing held passport
fraud in violation of § 1542 is a CIMT.
# 742.
See ECF No. 95, PageID
However, Petitioners have not established that the law in
the Ninth Circuit at the time was so inarguably established that
Singh could not have had a good faith belief that, given the
facts of this case, the § 1542 convictions might not qualify as
CIMTS.
55.
Singh’s belief that it “was unclear” whether
§ 1542 convictions qualified as CIMTs led him to assert that
Petitioners’ convictions were not CIMTs under the narrow facts
presented.
He argued for a “nuanced” approach, pointing out that
Petitioners presented false alien registration cards to the
postal worker only to prove that they were the parents of the
29
children applying for the passports.
In other words, Singh
argued that Petitioners had had no evil motive and did not
benefit from the presentation of false alien registration cards.
See Ex. 23G (Immigration Judge Order dated Dec. 11, 2012,
explaining Petitioners’ argument with respect to whether their
§ 1542 convictions qualified as CIMTs).
A Ninth Circuit motions
panel later determined that the argument was “sufficiently
substantial to warrant further consideration by a merits panel.”
See Ex. 24 (Order dated May 17, 2016, in No. 15-70856).2
In any
event, Singh says he told Petitioners that they were “virtually
certain” to be deported.
On this point, the court has no reason
to doubt Singh’s assertion.3
56.
In a written order dated December 11, 2012, the
Immigration Judge determined that the convictions for passport
fraud in violation of 18 U.S.C. § 1542 involved CIMTs that made
Petitioners ineligible for cancellation of removal.
The
Immigration Judge found it unnecessary to determine whether their
2
As discussed later in this order, while the Ninth
Circuit merits panel ultimately concluded that Petitioners’
§ 1542 convictions did qualify as CIMTs, it did so only after
saying that Bisaillon predated the categorical and modified
categorical approaches set out in Taylor v. United States, 495
U.S. 575, 599-602 (1990). The Ninth Circuit applied the
categorical approach in confirming that fraud crimes are indeed
categorical crimes involving moral turpitude. Id.
3
Singh said that, at the time Petitioners pled guilty,
he similarly thought the law was not clear with respect to
whether the § 1542 passport fraud convictions were CIMTs under
the circumstances of this case. See ECF No. 95, PageID # 740.
30
convictions for possession of fraudulent resident cards were also
CIMTs that made Petitioners ineligible for cancellation of
removal.
See ECF No. 76-1, PageID # 431.
The Immigration Judge
concluded that Petitioners were subject to removal, and, on
January 8, 2013, ordered them removed.
The order was based both
on Petitioners’ presence in the United States without admission
or parole and on their CIMT convictions.
See ECF No. 76-1,
PageID #s 430-32 (Decision and Order dated Dec. 11, 2012); ECF
No. 76-2; see also Singh Test., ECF No. 95, PageID # 726.
57.
The December 2012 written order does not appear to
have been read out loud to Petitioners during any hearing.
However, at a hearing on January 8, 2013, which was interpreted
into Spanish for Petitioners, both of whom were present, the
Immigration Judge did tell Avendano-Silva:
I already ruled that I didn’t believe that
you and your wife are eligible for
cancellation of removal because of the
conviction, and your lawyer tells me that you
both waived voluntary departure. And I don’t
believe you’re eligible for that anyway. So
that leaves me just with completing the case,
and I don’t see anything you’re eligible for
except removal to Mexico.
Ex. 23, Bates Stamp No. 00125.
The Immigration Judge then
stated, “So I’m going to have to enter orders of removal to
Mexico.”
Id., Bates Stamp No. 00126.
Avendano-Silva testified
that he knew at this time that the Immigration Judge had ruled
31
against him and that he would be removed to Mexico.
See
Avendano-Silva Test., ECF No. 94, PageID # 614.
58.
Petitioners cannot credibly claim that it was not
until January 2023 that they learned through their coram nobis
counsel that their convictions made them ineligible for
cancellation of removal.
See Villanueva-Martinez Decl., ECF No.
61-4, PageID # 341; Avendano-Silva Decl., ECF No. 61-3, PageID #
327-28 (saying that, on January 27, 2023, they consulted with
Marc Van Der Hout and Johnny Sinodis, immigration attorneys, who
told them that their § 1592 convictions were CIMTs that made them
ineligible for cancellation of removal); Sinodis Decl., ECF No.
61-2, PageID # 307.
Petitioners were told by, at the latest, the
January 2013 hearing before the Immigration Judge that their
convictions made them ineligible to cancel removal proceedings.
Even if the details of CIMTs were hazy to them, what should have
been clear was that the Immigration Judge saw no option other
than removal to Mexico.
59.
Singh says he tried to explain the Immigration
Judge’s ruling to Petitioners in basic English.
He says he did
not talk to them specifically about CIMTs at that time, because
“nobody really understands that.”
PageID # 723.
Singh Test., ECF No. 95,
Singh says they were not surprised because they
knew that they were going to be deported.
32
Id., PageID # 55.
60.
Petitioners appealed the Immigration Judge’s
decision and order to the Board of Immigration Appeals (“BIA”),
which dismissed their appeals.
In a written order dated February
25, 2015, the BIA also ruled that the convictions for passport
fraud in violation of 18 U.S.C. § 1542 involved CIMTs that made
them inadmissible and therefore ineligible for cancellation of
removal.
See ECF No. 76-3.
61.
Petitioners had Singh seek review by the Ninth
Circuit of the BIA’s dismissal of their appeal.
The Government
moved for summary disposition of the appeal to the Ninth Circuit,
but, as noted earlier, a motions panel determined that the appeal
presented questions “sufficiently substantial to warrant further
consideration by a merits panel.”
See Ex. 24 (May 17, 2016,
Order in No. 15-70856).
62.
On June 17, 2019, a Ninth Circuit merits panel
denied Petitioners’ request in a memorandum decision.
No. 76-4.
See ECF
The Ninth Circuit noted that, as far back as 1958 the
court had ruled that making a false statement in a passport
application is a CIMT.
It noted, however, that the 1958 decision
predated Taylor v. United States, 495 U.S. 575, (1990), which set
forth the procedure for determining whether a crime was a CIMT.
Applying the Supreme Court’s 1990 procedure, the Ninth Circuit
determined that the convictions under 18 U.S.C. § 1542 involved
matters that still qualified as CIMTs.
33
The Ninth Circuit then
held that Petitioners were therefore barred from seeking
cancellation of removal.
63.
See id., PageID #s 443-44.
Petitioners’ oldest daughter, Yesica Avendano-
Villanueva, turned 21 the following month, July 2019.
No. 61-1, PageID # 300.
See ECF
She says that she helped translate
documents and interpret conversations for her parents.
Id.
After the Ninth Circuit decision, she, Petitioners, and Singh met
to discuss what they could do to help Petitioners obtain green
cards and become lawful permanent residents.
Id.
At that time,
Singh suggested that the daughter could join the military or file
a Form I-130 visa petition in connection with which Petitioners
could depart for Mexico for a consular interview with the hope of
returning.
Id., PageID #s 300-01; Avendano-Villanueva Test., ECF
No. 95, PageID #s 11-12.
Singh says, “Although I provided them
different options we could try to pursue, I was always up front
about the likelihood of success, which in their case was quite
slim.”
ECF No. 76-5, PageID # 453.
Singh explained that
Petitioners “were often unreasonable in their expectations or
hopes of what might happen in their immigration proceedings.
tried my best to manage their expectations.”
64.
I
Id.
Singh says that he agrees with Petitioners’ coram
nobis counsel that they “did not have any viable path to remain
in the country in large part because they had been convicted of a
CIMT.”
Id., PageID # 454.
With respect to the Form I-130, Singh
34
says he explained to the daughter that, while the petition would
be approved, the second part of the application process “would be
extremely difficult” because the CIMT convictions would bar
Avendano-Silva and Villanueva-Martinez from entry to the United
States for 10 years.
Id.
Singh says that he knew they would be
removed and that “[i]t was merely a matter of time.”
# 456.
Id., PageID
He says that he “made every good faith effort . . . to
help them stay in the United States as long as possible.”
IV.
Id.
CONCLUSIONS OF LAW.
Overview of Applicable Immigration Statutes.
1.
Title 8, Chapter 12, of the United States Code
governs immigration and nationality.
Section 101 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101,
contains definitions.4
For example, it defines an “alien” as
“any person who is not a citizen or national of the United
States.”
INA § 101(a)(3), 8 U.S.C. § 1101(a)(3).
“Admission” is
defined as “the lawful entry of the alien into the United States
4
Local Rule 7.5 states that “Citations shall be made
to the applicable United States Code provision(s), rather than
only to the section(s) of a named act or code, although reference
may be made to both. For example, a citation should not be made
only to section 402(b) of the Clean Water Act; citation shall be
made also or instead to 33 U.S.C. § 1342(b).” Given this local
rule, the parties have cited United States Code provisions.
However, the immigration authorities in relevant removal
proceedings cited INA sections. This court has provided both
citations for the convenience of the reader.
35
after inspection and authorization by an immigration officer.”
INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).
2.
Any “alien” who is in the United States but has
not been “admitted” is deemed an “applicant for admission.”
§ 235(a)(1), 8 U.S.C. § 1225(a)(1).
INA
An individual may be
“inadmissible” on a number of grounds.
Relevant here, an “alien”
is “inadmissible” when he or she has been convicted of a CIMT.
INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Additionally relevant here, an “alien” who is present in the
United States without being “admitted” is “inadmissible.”
§ 212(a)(6)(A)(i), 8 U.S.C.
3.
INA
§ 1182(a)(6)(A)(i).
When an “alien” is convicted of a CIMT for which a
sentence of one year of more may be imposed and commits the crime
within 5 years after the date of admission, that alien is
“deportable.”
INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(1).
Additionally, when an “alien” is in the United States in
violation of law, that individual is “deportable.”
§ 237(a)(1), 8 U.S.C. § 1227(a)(1).
“removed” from the United States.
4.
A “deportable alien” may be
Id.
“Removal proceedings” are initiated by providing
an alien with written notice to appear.
§ 1229.
INA
INA § 239, 8 U.S.C.
“Removal proceedings” are governed by INA § 240, 8
U.S.C. § 1229a.
“Cancellation” of an alien’s removal may be
sought under INA § 240A, 8 U.S.C. § 1229b.
36
However, removal may
not be cancelled unless certain conditions are met, including
that the alien not have been convicted under INA § 212(a)(2), 8
U.S.C. § 1182(a)(2), which includes CIMTs under INA
§ 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).
See INA
§ 239(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).
Overview of Coram Nobis Framework.
5.
The 1946 amendments to Rule 60(b) of the Federal
Rules of Civil Procedure abolished several common law writs,
including the writ of coram nobis.
See Doe v. I.N.S., 120 F.3d
200, 202 (9th Cir. 1997) (quoting in footnote 2 Rule 60(b) of the
Federal Rules of Civil Procedure) (“Writs of coram nobis, coram
vobis, audita querela, and bills of review and bills in the
nature of a bill of review, are abolished, and the procedure for
obtaining any relief from a judgment shall be by motion as
prescribed in these rules or by an independent action.”).
In
United States v. Morgan, 346 U.S. 502, 511 (1954), the Supreme
Court held that, despite that abolition, district courts still
retained limited authority to issue common law writs, including
writs of coram nobis in collateral criminal proceedings.
See
also 28 U.S.C. § 1651(a) (“The Supreme Court and all courts
established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.”).
37
6.
“[T]he common law writs survive only to the extent
that they fill ‘gaps’ in the current systems of postconviction
relief.”
United States v. Valdez-Pacheco, 237 F.3d 1077, 1079
(9th Cir. 2001).
“[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.”
Cir. 2007).
United States v. Riedl, 496 F.3d 1003, 1005 (9th
The writ is “extraordinary, used only to review
errors of the most fundamental character, and filling a very
precise gap in federal criminal procedure.”
Id. (quotation
marks, citations, and alterations omitted); see also Carlisle v.
United States, 517 U.S. 416, 429 (1996) (“[I]t is difficult to
conceive of a situation in a federal criminal case today where a
writ of coram nobis would be necessary or appropriate.”
(quotation marks, brackets, and citation omitted)).
Errors are
of the most fundamental character when they render a proceeding
invalid.
See Hirabayashi v. United States, 828 F.2d 591, 604
(9th Cir. 1987).
7.
Unlike claims under 28 U.S.C. § 2255, which
applies only when a convicted movant is in custody, the writ of
coram nobis allows a defendant to attack a conviction when the
defendant has completed a sentence and is no longer in custody.
See Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.
2002) (holding that a prisoner who is in custody, including one
38
who is on supervised release, may seek relief under § 2255, not
under the writ of coram nobis); Estate of McKinney v. United
States, 71 F.3d 779, 781 (9th Cir. 1995); Hirabayashi, 828 F.2d
at 604).
A writ of coram nobis “provides a remedy for those
suffering from the lingering collateral consequences of an
unconstitutional or unlawful conviction based on errors of fact
and egregious legal errors.”
8.
McKinney, 71 F.3d at 781.
To qualify for coram nobis relief, a defendant
must establish all of the following:
(1) a more usual remedy is not available;
(2) valid reasons exist for not attacking the
conviction earlier; (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.
Matus-Leva, 287 F.3d at 760; McKinney, 71 F.3d at 781-82 (same);
Hirabayashi, 828 F.2d at 604 (same).
“Because these requirements
are conjunctive, failure to meet any one of them is fatal.”
Matus-Leva, 287 F.3d at 760.
The Government concedes that
Petitioners satisfy the first and third prongs of the test for
coram nobis relief.
See ECF No. 76, PageID # 399 n.8.
Petitioners have fully served their sentences and are currently
subject to serious immigration consequences flowing from their
convictions.
Accordingly, only the second and fourth prongs are
at issue.
39
Avendano-Silva and Villanueva-Martinez Fail to Show Valid
Reasons for Not Attacking Their Convictions Earlier.
9.
Under the coram nobis framework, the burden is on
Petitioners to demonstrate valid reasons for the delay in
attacking their 2012 convictions.
See Riedl, 496 F.3d at 1008.
Petitioners do not meet that burden.
“[W]hether petitioners can
reasonably raise a claim is determinative of whether delay is
justified.
That is, where petitioners reasonably could have
asserted the basis for their coram nobis petition earlier, they
have no valid justification for delaying pursuit of that claim.”
United States v. Kroytor, 977 F.3d 957, 961 (9th Cir. 2020).
Thus, the Ninth Circuit has found delay justified when a
defendant discovered new evidence that could not reasonably have
been found earlier, when a defendant delayed taking action
because of misadvice by an attorney that the defendant had no
reason to know was erroneous, and when there has been a change in
the law.
See id. at 962.
A lack of clarity in the law is not
usually seen as a valid reason.
See id.
In Kroytor, the Ninth
Circuit determined that waiting two years after having the facts
available to reasonably know the basis for a coram nobis motion
and ten months after the law was clarified demonstrated an
unjustifiable delay such that coram nobis relief was properly
denied.
See id. at 963.
10.
Petitioners claim that Singh did not tell them
about the immigration consequences they faced before they pled
40
guilty, during their removal proceedings, while their appeal
proceeded before the BIA, or in connection with the appeal to the
Ninth Circuit.
Singh says he did indeed tell them about the
immigration consequences at all those times.
As noted above,
Petitioners were not always credible in this court’s view, and
that extends to their contention that Singh entirely failed to
tell them about immigration consequences flowing from their
convictions.
But even if this court accepts their contention
that Singh failed to warn them in their criminal case that their
CIMTs would make deportation unavoidable, they were present
during immigration proceedings when the effects of their CIMT
convictions on cancellation of removal were discussed.
Those
discussions occurred when interpreters were present during
hearings.
Ultimately, the Immigration Judge’s written order of
December 11, 2012, determined “that Respondents are each
removable for having been convicted of a crime involving moral
turpitude.”
ECF No. 76-1, PageID # 431.
The Immigration Judge
ruled that Petitioners failed to establish statutory eligibility
for cancellation of removal, stating, “Respondent’s are removable
on the lodged charge and the applications for Cancellation of
Removal and Adjustment of Status for Certain Nonpermanent
Residents are pretermited and denied.”
11.
Id., PageID # 432.
While the record does not reflect that the
December 2012 written order was read to Petitioners, the
41
conclusion was communicated to them at a hearing on January 8,
2013, which was interpreted into Spanish.
Stamp No. 00125.
See Ex. 23, Bates
The Immigration Judge expressly stated, “So I’m
going to have to enter orders of removal to Mexico.”
Stamp No. 00126.
Id., Bates
Avendano-Silva consistently testified that he
knew at this time that the Immigration Judge had ruled against
him and that he would be removed to Mexico.
See Avendano-Silva
Test., ECF No. 94, PageID # 614.
12.
This court understands that the Immigration
Judge’s written orders may have been incomprehensible to
Petitioners because the orders were in English.
This court takes
into account the possibility that any order not read out loud in
immigration proceedings might not have been translated for
Petitioners.
This court also realizes that the concept of CIMTs
may have remained unclear to them.
But they had to have known by
at least January 2013 that the Immigration Judge saw no way to
avoid their deportation in light of their convictions.
13.
Moreover, if Petitioners ever received official
documents in English that they needed to have explained to them
in Spanish, they knew they needed translations.
This court has
difficulty understanding why they did not seek explanations of
English-language orders from Singh or anyone else.
14.
On February 25, 2015, the BIA dismissed
Petitioners’ appeal of the Immigration Judge’s order.
42
See ECF
No. 76-3, PageID # 439.
The BIA determined that they were
“removable as charged and ineligible for cancellation of removal”
because they had been convicted of “categorical crime[s]
involving moral turpitude,” making them “inadmissible” and
“ineligible for cancellation of removal.”
Id.
Villanueva-
Martinez certainly knew of the immigration consequences by the
time the BIA issued its ruling, as she says that she was
“paralyzed by the thought that [her] children would be left alone
in the United States” once the BIA “said that we had to depart
the country within 30 days.”
See Villanueva-Martinez Decl., ECF
No. 61-4, PageID # 339.
Avendano-Silva says he knew the BIA’s
decision was not good.
See Avendano-Silva Decl., ECF No. 61-3,
PageID #s 324-25 (saying that he did not understand exactly what
the BIA decision was because it was in English, but he
“understood enough to know the outcome was not good”).
15.
The Ninth Circuit noted that the Immigration Judge
and the BIA had both determined that Petitioners’ convictions for
passport fraud were CIMTs that made them ineligible for
cancellation of removal.
See ECF No, 76-4, PageID # 443.
The
Ninth Circuit agreed that Petitioners were “barred from seeking
cancellation of removal because they have been convicted of a
crime of moral turpitude.”
Id., PageID # 444.
Even if
Petitioners could not read or understand the Ninth Circuit’s
decision, they knew that the Ninth Circuit had ruled against
43
them, as they were “distraught and fearful that ICE would show up
at our home to deport us” after the Ninth Circuit ruled in June
2019.
See Villanueva-Martinez Decl., ECF No. 61-4, PageID # 339.
16.
Petitioners and Singh appear to agree that Singh
discussed the possibility of applying for immigrant visas when
their eldest child turned 21, about having one of their children
join the military to improve Petitioners’ chances of being
allowed to stay in the United States, and about seeking
presidential pardons.
See Avendano-Silva Decl., ECF No. 61-3,
PageID # 325; Avendano-Villanueva Test., ECF No. 95, PageID #
681.
Petitioners’ coram nobis counsel says that none of those
possibilities was viable.
17.
Even if Singh was mistaken in raising those
possibilities, Petitioners do not explain why they waited nearly
five years from the date of the Ninth Circuit’s ultimate decision
on June 17, 2019, to file this motion on March 21, 2024.
knew in 2019 that the appeal process was over.
They
When Singh raised
possible avenues of action, Petitioners’ eldest child was not yet
21.
She is now 26.
And even if they could justify some delay
(e.g., continuing to follow Singh’s advice after the Ninth
Circuit decision), they do not sufficiently explain why they
delayed more than a year after talking with their new counsel in
January 2023, when they say they finally realized what the
immigration consequences of their guilty pleas were.
44
18.
Petitioners’ argument that Singh misled them with
respect to the immigration consequences and that they had no
reason to know of any basis for seeking coram nobis relief until
January 2023 is unpersuasive.
See Villanueva-Martinez Decl., ECF
No. 61-4, PageID # 341 (saying that she “learned” then that her
§ 1641 conviction was a CIMT that made her ineligible for
cancellation of removal); Avendano-Silva Decl., ECF No. 61-3,
PageID # 327 (saying that, on January 27, 2023, they consulted
with Marc Van Der Hout and Johnny Sinodis, immigration attorneys,
who told them that their § 1592 convictions were CIMTs that made
them ineligible for cancellation of removal); Sinodis Decl., ECF
No. 61-2, PageID # 307 (stating that Petitioners first consulted
with his office on January 27, 2023); see also ECF No. ECF No.
98, PageID # 799-800 (arguing that Singh’s misadvice justified
the delay).
19.
When the Ninth Circuit decided their immigration
appeal in 2019, Petitioners knew that the outlook was not good.
They had to know by then that they were in serious trouble.
Singh explained, “Although I provided them different options we
could try to pursue, I was always up front about the likelihood
of success, which in their case was quite slim.”
ECF No. 76-5,
PageID # 453.
20.
Moreover, as this court noted earlier, Petitioners
have not been credible in many respects.
45
This court is not
persuaded that they first realized what the immigration
consequences of their convictions were in January 2023.
If that
were true, they should have acted within a reasonable time upon
being struck by this alleged thunderbolt.
Their Reply states
that time was needed to confer with new counsel, gather records,
conduct legal research, and draft this motion and accompanying
declaration.
See ECF No. 79, PageID # 481.
Those reasons do not
justify a lapse of 14 months between January 2023 and the filing
of this motion.
See Kroytor, 977 F.3d at 963 n.3 (noting that
the need to gather declarations was not a valid justification for
a 10-month delay).
Having failed to sufficiently explain the
delay in filing their coram nobis motion, they are not entitled
to coram nobis relief.
21.
The coram nobis motion is additionally denied
based on laches.
The Ninth Circuit has noted that there is no
specific time limitation for filing a coram nobis motion.
See
Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994).
Instead, the Ninth Circuit says that a coram nobis motion “is
subject to the equitable doctrine of laches,” which “bars a claim
if unreasonable delay causes prejudice to the defendant.
22.
Id.
Under the coram nobis framework, the burden of
proof is normally on the defendant to offer valid reasons for the
delay in filing a coram nobis motion.
However, when the
Government asserts that a coram nobis motion is barred by laches,
46
that framework changes.
Instead, “the government first must make
a prima facie showing of prejudice. . . .
If the government
meets that burden, the burden of production of evidence then
shifts to the petitioners to show either that the government
actually was not prejudiced or that the petitioner exercised
reasonable diligence in filing the claim.”
Riedl, 496 F.3d at
1008.
23.
The Government has met its initial burden of
demonstrating prejudice flowing from Petitioners’ delay in filing
the coram nobis motion, as evidence supporting its arguments is
no longer available.
For example, Saibene might have been able
to testify about whether and how many times he translated for
Petitioners and what was told to them.
he passed away in 2018.
Unfortunately, however,
See Ex. 26 (Certification of Death).
Because Hawaii does not require attorneys to maintain client
files for a dozen years, Singh has no client files that would
assist in establishing what occurred.
95, PageID # 688.
See Singh Test., ECF No.
His client files might have also contained any
documents relevant to the present coram nobis motion.
Finally,
FDC Honolulu no longer has visitor logs showing whether and when
any meeting occurred involving Avendano-Silva, Singh, and Saibene
because logs are not kept for more than 10 years.
76, PageID # 424.
See ECF No.
These logs could have corroborated Singh’s
47
testimony that he met with Avendano-Silva with an interpreter
present.
24.
The court is not persuaded that the unavailable
evidence should not be considered in determining the laches
argument.
See ECF No. 98, PageID # 800 (claiming that the delay
did not cause any prejudice arising from the unavailable
evidence).
The evidence is unavailable to assist the court in
determining certain material matters that the Government might
have urged the court to find.
25.
The Government additionally says it would suffer
prejudice if the convictions are vacated because applicable
statutes of limitation would bar recharging Petitioners.
No. 76, PageID # 425.
See ECF
It says that certain evidence supporting
such charges, such as the passport applications, written
admissions, and evidence related to uncharged conduct cannot be
found, and that witnesses are likely to be missing or may not
remember details.
See ECF No. 97, PageID # 787.
not consider this particular alleged prejudice.
This court does
In the normal
case, coram nobis relief “comes after the petitioner has
completed his sentence,” meaning that “the petitioner will not be
retried.”
“[T]hus, the granting of coram nobis normally results
in the expungement of the conviction, with no possibility of
further proceedings to determine whether the petitioner was
guilty of the offense charged.”
United States v. Mandanici, 205
48
F.3d 519, 532 (2d Cir. 2000) (Kearse, J., concurring); United
States v. Wilson, 2020 WL 3051250, at *2 (S.D. Miss. June 8,
2020) (same); United States v. Verrusio, 2017 WL 2634638, at *6
(D.D.C. June 19, 2017) (same), aff’d, 758 F. App'x 2 (D.C. Cir.
2019).
The Government does not provide any reason for some
different approach here.
Accordingly, while the court does
conclude that laches applies here, that conclusion does not rest
on any alleged prejudice with respect to a bar on bringing new
charges.
Petitioners Fail to Satisfy Their Burden of Showing that the
Supposed Error is of the Most Fundamental Character.
26.
While Petitioners’ failure to provide valid
reasons for the delay in attacking their convictions is, on its
own, sufficient reason to deny coram nobis relief, this court
looks also at whether Petitioners meet their burden of satisfying
the fourth coram nobis requirement of demonstrating a fundamental
error.
See Shin v. United States, 2023 WL 2523613, at *1 n.1
(9th Cir. Mar. 15, 2023).
Ineffective assistance of counsel can
satisfy this fourth coram nobis requirement.
See United States
v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005), abrogated on other
grounds by Padilla v. Kentucky, 559 U.S. 356 (2010); see also
Aghamalian v. United States, 781 F. App’x 576, 578 (9th Cir.
2019).
49
27.
To establish ineffective assistance of counsel,
Petitioners must establish: 1) that their counsel’s performance
fell below an objective standard of reasonableness, and 2) that
the deficiency in their counsel’s performance prejudiced them.
See Strickland v. Washington, 466 U.S. 668, 688 (1984)).
There
is “a strong presumption” that counsel’s conduct was reasonable
and that counsel’s representation did not fall below “an
objective standard of reasonableness” under “prevailing
professional norms.”
Id. at 688.
Because “[i]t is all too
tempting for a defendant to second-guess counsel’s assistance
after conviction,” judicial scrutiny of counsel’s performance is
highly deferential.
28.
Id. at 689.
In 2010, the Supreme Court held that, to be
constitutionally effective, counsel “must inform her client
whether his plea carries a risk of deportation.”
U.S. at 374.
Padilla, 559
The following year, in United States v. Bonilla,
637 F.3d 980, 984 (9th Cir. 2011), the Ninth Circuit explained
that a “criminal defendant who faces almost certain deportation
is entitled to know more than that it is possible that a guilty
plea could lead to removal; he is entitled to know that it is a
virtual certainty.”
29.
Whether Singh’s performance fell below an
objective standard of reasonableness turns on what he told
Petitioners with respect to the immigration consequences of their
50
guilty pleas.
Petitioners are not credible in contending that,
when they pled guilty, Singh was ineffective in failing to
explain that their removal was a virtual certainty.
Petitioners
lack of truthfulness to the court in various ways casts serious
doubt on their claim that Singh failed to sufficiently inform
them of the dire immigration consequences they faced.
30.
First, Singh must have spoken to them about their
immigration status, notwithstanding their claim to the contrary.
The Indictment in this case, Avendano-Silva’s detention
proceeding, and the turning over of Petitioners’ Mexican
passports made it abundantly clear that Petitioners were citizens
of Mexico not legally in the United States.
Their need for a
Spanish translator would have also caused Singh to inquire about
their immigration status, which he did in his initial intake
questionnaire.
Villanueva-Martinez even admitted during her
testimony that she told Singh that she was not legally in the
country.
31.
Second, this court questions Petitioners’
truthfulness in saying that they had interpretation services for
only in-court proceedings.
It is simply not credible that Singh
would have met with Avendano-Silva more than once without an
interpreter if Avendano-Silva made it clear that language was a
barrier.
Avendano-Silva did speak some English, and Villanueva-
Martinez spoke more English than her husband did.
51
But assuming
both had insufficient English to understand English-language
explanations of immigration consequences, Singh had no reason to
struggle without an interpreter.
Singh credibly testified that
he needed and used an interpreter to communicate with
Petitioners.
32.
Third, Petitioners are not credible in saying that
no interpreter helped to explain their plea agreements.
Singh
credibly testified that an interpreter translated the plea
agreements for them.
Moreover, under oath, Petioners told the
Magistrate Judge at their change of plea hearing that the plea
agreements had been translated and explained to them in Spanish
and that they understood the agreements.
They contend that they
lied in that hearing but are telling the truth now.
This
position raises huge red flags for this court.
33.
Fourth, Villanueva-Martinez now disavows the
allocution letter she submitted for consideration in sentencing.
She says that the letter was written for her and that it was
incorrect in expressing willingness to move to Mexico.
34.
Singh credibly says that he told Petitioners that
it was “virtually certain” that they would be removed because
their crimes were CIMTs and because they entered the United
States without inspection.
While Singh may have told them that
“it was not clear” that their convictions were CIMTs, that was a
reference to his good-faith argument that, under the
52
circumstances of their case, Petitioners could not be said to
have committed crimes that qualified as CIMTs.
This court
understands that Petitioners are arguing that Singh was incorrect
in positing that there was any chance of avoiding deportation.
But this court cannot ignore the way the Ninth Circuit handled
Singh’s argument on behalf of Petitioners.
The motions panel
declined to summarily reject Singh’s argument, and the merits
panel rejected it only after noting that the development of the
categorical approach had to be taken into account before applying
Bissaillon’s holding.
35.
Singh says he told Petitioners that he could not
think of any relief they could get from the immigration court,
and he “made it clear, it’s a matter of time when you guys are
going to get deported.”
Singh Test., ECF No. 95, PageID # 703.
They could delay deportation, but it would happen.
36.
In Petitioners post-hearing Reply brief, they
argue that Singh “never said he considered that removing both
parents of three minor U.S. citizen children, effectively
rendering them orphans, could warrant cancellation of removal.”
See ECF No. 98, PageID # 795.
But this was not an argument
raised in Petitioners’ motion such that the Government was on
notice to develop the record with respect to it.
Moreover,
Petitioners fail to show when Singh was even asked whether he
considered that argument.
53
37.
Even if a defendant overcomes the presumption of
effectiveness, the defendant must still demonstrate a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
466 U.S. at 694.
merits.
Strickland,
A different result need not be success on the
The Ninth Circuit considered a coram nobis motion
involving a claim of deficient counsel performance arising out of
counsel’s alleged failure to inform the defendant about the
immigration consequences of a guilty plea.
The defendant argued
that she suffered prejudice in the form of pleading guilty
instead of going to trial.
The Ninth Circuit stated that, under
those circumstances, the defendant “can show prejudice by
demonstrating a reasonable probability that, but for counsel’s
errors, [s]he would not have pleaded guilty and would have
insisted on going to trial.”
United States v. Chan, 732 F. App’x
501, 503 (9th Cir. 2018) (unpublished disposition)
marks and citation omitted).
(quotation
The Ninth Circuit has explained
that, when ineffective assistance causes a defendant to accept a
plea bargain, a different result means that the defendant would
have gone to trial or received a better plea bargain.
United
States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015).
38.
Petitioners assert that, had they been properly
informed of immigration consequences, they would have insisted on
“immigration safe” pleas or would have gone to trial.
54
Under
Rodriguez-Vega, 797 F.3d at 788, one way Petitioners can
demonstrate a reasonable probability that they would have
negotiated a better plea deal is by identifying other cases in
which the Government permitted individuals charged with the same
or similar crimes to plead guilty to nonremovable or “immigration
safe” offenses.
39.
Petitioners identify no such cases.
Singh, on the other hand, credibly says that AUSA
Hino would not have offered “immigration safe” pleas.
Singh also
casts doubt on the credibility of Petitioners’ claim that they
would have gone to trial.
He says they were focused on spending
as little time as possible in custody and on staying in the
country at least until their oldest daughter had graduated from
high school.
Villanueva-Martinez allegedly told Singh she would
move to Mexico and also submitted the allocution letter
previously referred to in this order.
This court has already
expressed concern about what Villanueva-Martinez has been willing
to sign.
The Conflict of Issue Argument Was Not Timely Raised.
40.
The coram nobis motion did not argue that Singh
had an actual conflict of interest affecting his representation.
See ECF No. 61.
However, citing Singh’s live testimony,
Petitioners’ post-hearing brief makes that argument, noting that
Singh testified that Villanueva-Martinez told him that she would
do whatever her husband wanted.
See ECF No. 96, PageID # 775.
55
Petitioners say this presented the potential for a conflict that
Singh did not advise the clients about.
They hypothesize a
conflict if Avendano-Silva had sought a plea agreement that
favored himself over his wife.
happened.
Of course, that is not what
Petitioners agreed with the factual bases of the
charges and with the course of action taken.
41.
The court disregards this actual conflict argument
because the Government had insufficient notice of it such that it
could develop a sufficient record on the matter during the
evidentiary hearing.
The argument was initially raised in a
post-hearing brief filed well after the reply brief.
See Local
Rule 7.2 (stating that any argument raised for the first time in
a reply brief shall be disregarded).
42.
The conflict argument fails in any event because
Petitioners show no prejudice in that regard.
The hypothetical
conflict arose when Singh allegedly allowed Avendano-Silva to do
what was in his best interest while Villanueva-Martinez went
along with what her husband wanted to do.
There is no evidence
that this actually affected Singh’s representation or prejudiced
them such that Singh’s representation could be said to have been
ineffective.
At most, Petitioners posit that Singh might have
asked the Government to let one Petitioner plead to a crime that
was not a CIMT.
But Singh testified that AUSA Hino did not offer
immigration-safe pleas, and Petitioners have identified no other
56
case in which the Government offered an immigration-safe plea
under similar circumstances.
43.
Singh’s testimony during the coram nobis
proceedings about facts underlying the alleged conflict does not
justify Petitioner’s delay in raising the conflict issue.
Petitioners knew what they had told Singh and therefore had the
facts to reasonably assert any conflict claim much earlier.
See
Kroytor, 977 F.3d 961-63.
V.
CONCLUSION.
While recognizing the pain Petitioners and their
children will suffer, this court concludes that the factual
record and applicable law require denial of the coram nobis
motion.
The Clerk of Court is directed to file a copy of this
order in both the criminal and civil cases, Criminal No. 11-00763
SOM and Civil No. 24-00137 SOM/RT, and to enter judgment in the
civil case in favor of the Government.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 25, 2024.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Avendano-Silva v. United States, CRIM. NO. 11cr763 SOM; CIV. NO. 24-00137 SOM/RT ORDER
DENYING MOTION FOR CORAM NOBIS RELIEF
57
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