Kwok Chee Kwan appeals the district court’s dismissal of his petition for writ of error coram nobis. Kwan’s petition collaterally attacks his conviction by guilty plea and his sentence on the ground of ineffective assistance of counsel. Because we find that Kwan’s counsel was constitutionally ineffective in affirmatively misleading him as to the immigration consequences of his conviction, and that Kwan has satisfied all of the requirements for coram nobis relief, we reverse.
I.
Kwan entered the United States in March of 1989. Subsequently, he became a lawful permanent resident. His wife and three children, ages 12, 15, and 18, are United States citizens. In February of 1996, Kwan was indicted for two counts of bank fraud. When considering whether to plead guilty, Kwan asked his defense counsel whether doing so would cause him to be deported. Defense counsel assured Kwan that although there was technically a possibility of deportation, “it was not a serious possibility.” Counsel further assured Kwan that this advice was based “on his knowledge and experience.” Counsel also explained to Kwan that, at his plea colloquy, the judge would tell him that he might suffer immigration consequences, but reassured him that there was no serious possibility that his conviction would cause him to be deported.
On July 9,1996, Kwan pled guilty to two counts of bank fraud in violation of 18 U.S.C. § 1344(1). Under the Sentencing Guidelines, the sentencing range for Kwan’s conviction was 18-24 months imprisonment; however, Kwan was potentially eligible for various downward adjustments that, if granted, could reduce his sentence to less than one year.
Legal permanent residents who are convicted of an aggravated felony are subject to deportation. 8 U.S.C. § 1227(a)(2)(iii). On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) was enacted; inter alia, IIRIRA amended the definition of an aggravated felony under the Immigration and Nationality Act (“INA”) by reducing the prison-sentence requirement *1009 for a qualifying theft offense from “at least five years” to “at least one year.” See Pub.L. No. 104-208, 1996 HR 3610 (amending 8 U.S.C. § 1101(a)(43)(G)). IIRIRA expressly provided that changes in the definition of an aggravated felony would apply retroactively, regardless of the date of conviction. 8 U.S.C. § 1101(a)(43) (“Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30,1996.”).
Defense counsel did not inform Kwan that, as a result of this change in the definition of an aggravated felony, he had pled guilty to an offense that would almost certainly cause him to be deported. Nor did counsel inform Kwan, or the court, that Kwan potentially could avoid deportation, either by renegotiating his plea agreement or by receiving a sentence of less than one year. On December 2, 1996, the court applied one downward adjustment (for acceptance of responsibility), which reduced the sentencing range from 18-24 months to 12-18 months. The court then sentenced Kwan to a prison term of one year and one day. The court also ordered him to pay restitution of $ 10,000.
. On May 1, 1997, the Immigration and Naturalization Service (“INS”) issued Kwan a Notice to Appear, which stated that he was subject to deportation because he had been convicted of an aggravated felony. Kwan retained immigration counsel and challenged his deportation, and on December 10, 1997, the Immigration Judge (“IJ”) ruled that Kwan’s offense was not an aggravated felony as defined under either 8 U.S.C. § 1101(a)(43)(M)(i) or 8 U.S.C. § 1101(a)(43)(R). Kwan completed his prison term and was released from INS custody. After rejoining his family, he completed his period of supervised release and paid the entire $10,000 restitution ordered by the sentencing court.
However, on May 26, 2000, the INS issued Kwan a second Notice to Appear, which again informed Kwan that he was subject to deportation because his 1996 conviction was an aggravated felony. On February 26, 2001, the second IJ to consider Kwan’s status found that he had been convicted of a theft offense for which a term of imprisonment of at least one year was imposed, an aggravated felony as defined under 8 U.S.C. § 1101(a)(43)(G). After Kwan’s Motion to Revisit was denied, he filed the petition for writ of coram nobis that is the subject of this appeal.
II.
Before addressing the merits of this appeal, we must address the government’s motion to dismiss for lack of jurisdiction, which argues that we lack jurisdiction over this appeal because Kwan failed to first obtain a Certificate of Appealability (“COA”). 'Whether the COA requirement of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), as specified in 28 U.S.C. § 2253(c)(1), applies to coram nobis proceedings is a question of first impression for this court. We find that the COA requirement does not apply to coram nobis proceedings, hold that we have jurisdiction to review the district court’s denial of Kwan’s coram nobis petition without a COA, and deny the motion to dismiss.
In reaching our conclusion, we keep in mind the particular nature of co-ram nobis relief: whereas petitions for habeas corpus relief and motions for relief under 28 U.S.C. § 2255 may only be filed by persons who are in government custody, “[t]he writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody.”
Estate of McKinney By and Through McKinney v. United States,
Section 2253(c)(1) makes the grant of a COA necessary in only two kinds of appeals: an appeal from “(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1);
see also Forde v. United States Parole Comm’n,
The Third Circuit is the only circuit that has ruled on the question of whether a COA is required before an appeal of a petition for a writ of error coram nobis may be taken, and it held that there is no COA requirement for coram nobis appeals.
1
See United States v. Baptiste,
In arguing that this court should find that coram nobis appeals are subject to the COA requirement, despite the plain language of 28 U.S.C. § 2253(c)(1) and the Third Circuit’s holding in
Baptiste,
the government points only to cases that are inapposite here. First, the government cites two cases in which we have applied AEDPA’s COA requirement to motions collaterally attacking convictions but not brought under 28 U.S.C. § 2255:
Porter v. Adams,
The government also relies upon cases where we have prevented the use of coram nobis petitions to circumvent AEDPA’s ga-tekeeping provisions by persons who would be eligible to petition for the forms of collateral relief governed by AEDPA
but for
those gatekeeping provisions. For
*1011
example, the government cites
Matus-Leva v. United States,
Arguing that it would be “at odds with AEDPA” to permit a person who petitions for coram nobis relief after serving his or her full sentence to avoid AEDPA’s gatek-eeping requirements, the government ignores the obvious reason why those gatek-eeping requirements are not necessary in legitimate coram nobis cases — namely, few defendants who have already completely served their sentences continue to have reasons to challenge their conviction or sentence.
For the foregoing reasons, we hold that AEDPA’s COA requirement does not apply to coram nobis proceedings. We further conclude that there is no compelling reason to construe Kwan’s coram nobis petition as one that is subject to the COA requirement.
Federal courts have authority to issue the writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). Kwan filed his petition for writ of error coram nobis on June 19, 2002. The district court granted the government’s motion to dismiss the petition on May 28, 2003. Petitioner filed his notice of appeal on June 26, 2003. Pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, the appeal is timely. 2 We have jurisdiction over this appeal under 28 U.S.C. § 1291.
III.
We review a denial of the writ of error coram nobis de novo.
McKinney,
[T]o qualify for coram nobis relief, four requirements must be satisfied. Those requirements are: (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.
McKinney,
A.
Kwan satisfied the first requirement, that “a more usual remedy is not available” to him, by establishing that he is not in custody and, as a result, not eligible for habeas relief or § 2255 relief.
See United States v. Mett,
Other courts have not interpreted this threshold requirement as the government would have us do.
See, e.g., United States v. Morgan,
Moreover, the government’s argument asks us to adopt a subtle change in the language of the threshold requirement (from “is unavailable” to “was unavailable”) that would cause a great change in its meaning (from “unavailable now” to “unavailable ever ”). If the mere fact that a coram nobis petitioner could have raised his claim while in custody was sufficient to bar coram nobis eligibility, then there would be no need for the second coram nobis requirement, which requires the petitioner to establish that “valid reasons exist for not attacking the conviction earlier.” Taken together, the first and second requirements make clear that a petitioner is not barred from seeking coram nobis relief simply because he could have sought relief while in custody. Instead, he is given the opportunity to explain why he did not seek relief while in custody, and he is only barred from coram nobis eligibility if he fails to show that he had valid reasons for delaying. 3
B.
“Because a petition for writ of error coram nobis is a collateral attack on a criminal conviction, the time for filing a petition is not subject to a specific statute of limitations.”
Telink, Inc. v. United States,
While courts have not elaborated on what constitutes a “sound” reason, our review of coram nobis cases reveals that courts have denied relief on this ground where the petitioner has delayed for no reason whatsoever, where the respondent demonstrates prejudice, or where the petitioner appears to be abusing the writ. For example, in
Maghe,
the petitioner filed a coram nobis petition challenging a 25-year old conviction.
In the instant case, Kwan has provided a reasonable explanation for not challenging his conviction earlier, the government has failed to demonstrate prejudice, and Kwan is not abusing the writ — he is not attempting to re-litigate claims or circumvent procedural bars. Although the district court found that Kwan’s reasons for delaying were not sound, we disagree. In reaching its conclusion, the district court reasoned that Kwan’s delay was not justified because the Service first notified Kwan that it considered him removable on the basis of his conviction in May, 1997, and Kwan could have challenged his conviction by filing a § 2255 motion at that time. However, Kwan explained that he did not .pursue habeas relief in 1997 because he retained immigration counsel, and that counsel advised him to challenge the INS’s determination that Kwan’s conviction was an aggravated felony under either 8 .U.S.C. § 1101(a)(43)(M)(i) or 8 U.S.C. § 1101(a)(43)(R), as indicated in Kwan’s first Notice to Appear. Given the fact that defense counsel had advised him that there *1014 was little chance Ms conviction would cause him to be deported, Kwan’s decision to focus on challenging his deportation on the basis of that conviction was reasonable. Only after the INS re-initiated removal proceedings against Kwan and determined that his conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) did Kwan have reason to conclude that his criminal defense counsel had in fact erred and affirmatively misled him by advising him that there was “no serious possibility” that his conviction would cause him to be deported.
Although it may have been more prudent of Kwan to collaterally attack his conviction earlier, his course of action was reasonable. The law does not require Kwan to challenge his conviction at the earliest opportunity, it only requires Kwan to have sound reasons for not doing so.
Cf. United States v. Tucor Int'l, Inc.,
In sum, because there is no statute of limitations for coram nobis petitions, Kwan has provided sound reasons for not challenging his conviction earlier, Kwan is'-not attempting to abuse the writ of coram nobis, and the government has not even suggested that Kwan’s delay caused it any prejudice, we decline to find Kwan ineligible for relief based solely on the fact that he could have, but did not, collaterally attack his conviction earlier.
C.
It is undisputed that the possibility of deportation is an “adverse consequence” of Kwan’s conviction sufficient to satisfy Article Ill’s case or controversy requirement.
See, e.g., Park v. California,
D.
Kwan may satisfy the fundamental error requirement by establishing that he received ineffective assistance of counsel.
See Mett,
To prevail on his claim of ineffective assistance of counsel, Kwan must prove 1) that his counsel’s performance fell below an objective standard of reasonableness, and 2) that the deficiency in his counsel’s performance prejudiced him.
Strickland v. Washington,
i. Deficient Performance
We have held 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 under
Strickland. United States v. Fry,
While we have not yet determined what “more” would cause a defense counsel’s advice, or lack thereof, regarding the immigration consequences of a conviction to fall below an objective standard of reasonableness, we note that the Second Circuit has held that an affirmative misrepresentation regarding immigration consequences is deficient under
Strickland. United States v. Couto,
In
Couto,
the Second Circuit noted that it had previously held “that an attorney’s failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness,”
id.
at 187 (citing
United States v. Santelises,
The circumstances of the instant case are analogous to those in Couto. We agree that where, as here, counsel has not merely failed to inform, but has effectively misled, his client about the immigration consequences of a conviction, counsel’s performance is objectively unreasonable under contemporary standards for attorney competence. Here, Kwan asked counsel whether pleading guilty would cause *1016 him to be deportable, and counsel chose to advise him. Moreover, counsel represented himself as having expertise on the immigration consequences of criminal convictions. Subsequently, counsel either failed to keep abreast of relevant and significant changes in the law or failed to inform Kwan of those changes’ effect on the deportation consequences of Kwan’s conviction. In either case, counsel never advised Kwan of the options that remained open to him prior to sentencing, and counsel never informed the sentencing judge that a sentence only two days shorter than the sentence ultimately imposed would enable Kwan to avoid deportation and remain united with his family.
That counsel may have misled Kwan out of ignorance is no excuse. It is a basic rule of professional conduct that a lawyer must maintain competence by keeping abreast of changes in the law and its practice. See, e.g., ABA Model Rules of Professional Conduct, Rule 1.1[6]. Although counsel was a criminal defense attorney and not an immigration attorney, counsel made an affirmative representation to Kwan that he had knowledge and experience regarding the immigration consequences of criminal convictions; as a result, counsel had a professional responsibility to inform himself and his client of significant changes in the law that drastically affected the immigration consequences of his client’s plea. See generally ABA Model Rules of Professional Conduct, Rule 1.1. At the time that Kwan was prosecuted, Congress’s efforts to revise immigration law were widely reported, as was the ultimate enactment of IIRIRA. If counsel did not have the requisite competence in immigration law, or if counsel did not plan on maintaining the requisite competence, he should not have advised Kwan regarding the immigration consequences of his plea without referring Kwan to an immigration lawyer or consulting himself with an immigration lawyer in the first place. See id.'
Counsel’s performance also fell below the American Bar Association’s ethical standard for criminal defense attorneys with respect to immigration consequences. The Supreme Court noted this standard in
INS v. St. Cyr,
Despite counsel’s knowledge that the likelihood of deportation was a significant factor considered by Kwan when he was deciding whether to plead guilty, counsel never informed Kwan that IIRIRA rendered his previous assessment of the risk grossly inaccurate. As noted above, after IIRIRA, Kwan’s conviction would create a near-certain risk of deportation, unless he received a prison term of less than one year. Although IIRIRA was enacted before Kwan’s sentencing hearing was scheduled, counsel never advised Kwan that the option of moving to withdraw his plea was viable, so long as he moved pri- or to sentencing. See Fed.R.Crim.P. 32(e) (1996) (“If a motion to withdraw a plea of guilty or nolo contendere is made *1017 before sentence is imposed, the court may-permit the plea to be withdrawn if the defendant shows any fair and just reason.”). 6 Counsel never explored the option of renegotiating the plea agreement with the prosecution so as to avoid the deportation consequences. Nor did counsel inform the sentencing judge that Kwan would almost certainly be deported if he was sentenced to a year or more in prison.
Counsel’s representations regarding the deportation consequences of Kwan’s plea may not have been erroneous at the time he made them, but he failed to correct those representations when they became grossly misleading, and when counsel still had the opportunity, and responsibility, to do so. Counsel’s performance breached not only standards particular to criminal defense attorneys but also basic standards for competence that are general to the profession. We therefore hold that counsel’s performance was objectively unreasonable and meets the first prong of the Strickland test.
ii. Prejudice
In the
Strickland
prejudice analysis, the determinative question is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Glover v. United States,
Kwan alleges that, but for counsel’s deficient performance, the outcome of his proceedings would have differed in one of two ways. Specifically, Kwan alleges that “had he known what constituted an ‘aggravated felony,’ he would have discussed with his lawyer the possibility of amending his plea agreement or asking the [sentencing] court for a downward departure.” Although the sentencing judge would not have had the discretion to grant a downward departure solely on the basis of immigration consequences,
United States v. Alvarez-Cardenas,
In addition, Kwan explains that, had he been made aware of the deportation consequences of his conviction, he would have explored the option of renegotiating his plea agreement. That Kwan asked counsel about the immigration consequences of pleading guilty before agreeing to do so demonstrates clearly “that he placed particular emphasis on [immigration consequences] in deciding whether or not to plead guilty.”
Hill v. Lockhart,
As noted above, a sentencing court may exercise its discretion to permit a defendant to withdraw his guilty plea prior to sentencing if the defendant shows a fair and just reason for requesting the withdrawal. Fed.R.Crim.P. 32(e) (1996). There is a reasonable probability that the sentencing court in this case would have considered the significant change in the immigration consequences of Kwan’s plea to be a fair and just reason for withdrawing his plea. While the sentencing court’s decision to grant or deny a motion to withdraw is discretionary, “to show prejudice [Kwan] need only show ‘a probability sufficient to undermine confidence in the outcome’ ” that he could have withdrawn his plea.
United States v. Leonti,
For the foregoing reasons, we conclude that Kwan has established his claim of ineffective assistance of counsel under Strickland, which is fundamental error. Because Kwan satisfied all four requirements for coram nobis relief, we reverse and remand to the district court with instructions to grant the writ, vacate Kwan’s sentence, and impose a sentence of one day less than one year.
REVERSED AND REMANDED.
Notes
. The Second Circuit declined to decide this issue in United States v. Mandanici, 205 F.3d 519, 524 n. 9 (2d Cir.2000).
. Rule 4 of the Federal Rules of Appellate Procedure was amended in 2002 to clarify whether an appeal from an order granting or denying a petition for writ of error coram nobis is governed by criminal or civil time limitations. As amended, Rule 4 expressly provides that such appeals are governed by the civil time limitations, superseding our holding in
Yasui v. United States,
. The Fifth Circuit adopted similar reasoning in
Esogbue.
In that case, the petitioner had filed his petition in the court of his conviction, faced the collateral consequence of possible deportation, and was no longer serving his sentence for his federal conviction, but the government argued that Esogbue's coram no-bis petition should be dismissed because Esogbue could have sought permission to file a successive § 2255 motion instead.
. The Second Circuit also discussed evidence that "standards of attorney competence [may] have evolved to the point that a failure to inform a defendant of the deportation consequences of a plea would by itself now be objectively unreasonable” but did not reach the issue.
Couto,
..
See also Downs-Morgan v. United States,
. Pursuant to the 2002 Amendments to the Federal Rules of Criminal Procedure, withdrawal of guilty pleas is now governed by Fed.R.Crim.P. 11(e). The 2002 Amendments were intended to spell out or clarify existing law. See Fed.R.Crim.P., Advisory Committee Notes to Rule 11, 2002 Amendments.