United States v. Yuly Kroytor
977 F.3d 957
9th Cir.2020Background
- Yuly Kroytor, a Canadian lawful permanent resident, pleaded guilty in 2005 to health-care fraud; his trial counsel did not advise him of immigration consequences.
- After his plea, counsel Daniel Behesnilian told Kroytor he could avoid immigration consequences by paying restitution and receiving no jail time; Kroytor followed that advice and received probation.
- In 2007 immigration authorities initiated removal proceedings; by 2014 Kroytor learned his conviction was an aggravated felony and that vacatur of the conviction was his only realistic way to avoid removal.
- Kroytor sought post-conviction relief (coram nobis) based on affirmative misadvice by his sentencing counsel but delayed filing: he waited two years after learning vacatur was required and filed in May 2016 (ten years after conviction).
- The district court denied coram nobis for unjustified delay; the Ninth Circuit affirmed, holding that legal uncertainty about retroactivity did not excuse Kroytor’s two-year delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kroytor’s delay in filing coram nobis was justified | Kroytor waited because it was unclear whether Kwan’s rule (affirmative misadvice IAC) applied retroactively | Delay was unreasonable; he could have raised the claim earlier | Delay unjustified; coram nobis denied and affirmed |
| Whether uncertainty in law (retroactivity of Kwan/Padilla) excuses delay | Uncertainty about retroactivity prevented a viable claim until Chan resolved it | Uncertainty alone is not a valid reason to delay filing | Uncertainty is not a valid reason; petitioner should have raised a reasonable claim despite ambiguity |
| Whether court reached merits on IAC (affirmative misadvice) | Behesnilian affirmatively misadvised Kroytor about immigration consequences, so IAC entitles vacatur | Government relied on procedural defect (untimely) and thus merits not reached | Court did not reach merits; denied on delay grounds |
Key Cases Cited
- United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (affirmative misadvice can support IAC claim)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (failure to advise about deportation can be ineffective assistance)
- Chaidez v. United States, 568 U.S. 342 (2013) (Padilla announced a new rule that is not retroactive under Teague)
- United States v. Chan, 792 F.3d 1151 (9th Cir. 2015) (held that Kwan’s rule applying to affirmative misadvice is retroactive)
- United States v. Morgan, 346 U.S. 502 (1954) (coram nobis is an extraordinary remedy)
- United States v. Riedl, 496 F.3d 1003 (9th Cir. 2007) (delay unjustified where claim could have been raised earlier)