United States District Court, D. Hawaii
ORDER DENYING HWANG's MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
DERRICK K. WATSON, District Judge.
Petitioner Sun Hwang, a South Korean citizen and resident of Hawaii, pled guilty to, and was sentenced for, aiding and abetting the operation of an illegal gambling business, in violation of 18 U.S.C. § 1955. Dkt. No. 401-6 at 16, 29. Hwang now seeks to vacate her conviction and sentence pursuant to 28 U.S.C. § 2255 on the ground that she received constitutionally ineffective assistance of counsel in connection with her decision to plead guilty. Dkt. No. 400. After careful consideration of Hwang's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion"), the record, and the relevant legal authority, Hwang's § 2255 Motion is hereby DENIED, and a certificate of appealability is GRANTED, for the reasons set forth below.
I. Indictment & Guilty Plea
Hwang was one of fifteen defendants charged in a multi-count indictment involving the illegal operation of a gambling business. Dkt. No. 1. Relevant to this case, the Government charged Hwang on a single gambling charge under Count 1 of the First Superseding Indictment. Dkt. No. 1 at 2-3. Under Count 1, the Government accused Hwang and her co-defendants of operating a gambling business, in violation of 18 U.S.C. §§ 2 and 1955. Dkt. No. 1 at 3.
Hwang's court-appointed attorney, Lars Isaacson, discussed with Hwang the potential immigration consequences of pleading guilty to a violation of 18 U.S.C. §1955. Dkt. No. 406-1 at 1. Isaacson consulted with Hena Mansori of the Defender's Initiative of the National Immigrant Justice Center. Dkt. No. 406-1 at 1. Mansori informed Isaacson that Hwang would be deportable and ineligible for a discretionary waiver if Hwang pled guilty to the § 1955 charge. Dkt. No. 406-1 at 1. Given these "possible dire immigration consequences, " Isaacson believed it would be in his client's best interest to consult with a local immigration attorney familiar with Ninth Circuit precedent as well as with the procedures of the local immigration courts. Dkt. No. 406-1 at 1. Isaacson met Carmen Di Amore-Siah, a former chair of the local chapter of the American Immigration Lawyers Association. Dkt. No. 406-1 at 2. Di Amore-Siah advised although pleading to the § 1955 charge would result in Hwang's placement in removal proceedings, Hwang would remain eligible for discretionary relief. No. 406-1 at 2. Both Mansori and Di Amore-Siah advised that a plea to misprision of a felony would be the preferred course. Dkt. No. 406-1 at 1-2.
Relying on this advice, Isaacson contacted Assistant United States Attorney Thomas Brady several times and asked if the Government would allow Hwang to plead to misprision of a felony. Dkt. No. 406-1 at 3; Dkt. No. 406 at 6. The Government would not. Dkt. No. 406-1 at 3; Dkt. No. 406 at 6. Thereafter, on May 15, 2014, Hwang pled guilty to Count 1 without a plea agreement. Dkt. No. 237. During the plea colloquy, the Court informed Hwang that "if your plea is accepted, there may be immigration consequences to your plea[, ] which could include removal from the United States." Dkt. No. 401-6 at 11. Hwang acknowledged her understanding by responding, "Yes." Dkt. No. 401-6 at 11.
On September 3, 2014, the Court sentenced Hwang to three years' probation. Dkt. No. 314. On September 5, 2014, the Court entered judgment. Dkt. No. 324. Following Hwang's sentence, the Department of Homeland Security initiated deportation proceedings. Dkt. No. 401-8 at 3. In the deportation proceedings, the immigration judge ruled that Hwang's gambling conviction constituted an aggravated felony, triggering automatic deportation and rendering Hwang ineligible for discretionary relief from removal. Dkt. No. 401-3 at 2.
II. Motion to Withdraw Guilty Plea Under 28 U.S.C. § 2255
On March 10, 2015, Hwang filed the instant motion pursuant to 28 U.S.C. §2255, alleging ineffective assistance of counsel under the Sixth Amendment and Padilla v. Kentucky, 559 U.S. 356 (2010). Dkt. No. 400 at 4. Hwang alleged that she "pled guilty to the charged gambling offense after being advised by [her] counsel (and the immigration attorney [her] counsel retained) that such a gambling conviction would not render [her] removable and would not cause the government to deport [her]"; that she "would not have pled guilty to the charged gambling offense if [she] had known that it would or could result in [her] deportation"; and that "[t]he government commenced removal proceedings against [her] and an immigration judge has ruled that [she is] removable because of [her] gambling conviction." Dkt. No. 400 at 4.
In support of her motion, Hwang attached her own declaration (Dkt. No. 401-8), a declaration from Isaacson (Dkt. No. 401-4), and a declaration from Di Amore-Siah (Dkt. No. 401-3). In her declaration, Hwang explained that as a non-U.S. citizen, her biggest concern in her case was how the gambling charge would affect her immigration status. Dkt. No. 401-8 at 2. She stated that she asked Isaacson a number of questions about the possible immigration consequences of pleading guilty and that Isaacson told her to get advice about those consequences from Di Amore-Siah. Dkt. No. 401-8 at 3. Di Amore-Siah told Hwang that she would not be deported if she pled guilty. Dkt. No. 401-8 at 3. Isaacson allegedly never told Hwang otherwise. Dkt. No. 401-8 at 3. Based on this advice, Hwang pled guilty to Count 1, understanding that she would not be deported. Dkt. No. 401-8 at 3. Following Hwang's sentence, deportation proceedings were brought against her, and she was "shocked and surprised" when the immigration judge ordered her deported. Dkt. No. 401-8 at 3. Hwang maintained that she "never would have pled guilty if [she] was advised that it would subject [her] to deportation" and that she "plead guilty only after [she] was told by [her] attorneys that it would not lead to deportation." Dkt. No. 401-8 at 4.
In his declaration, Isaacson explained Di Amore-Siah's involvement in Hwang's case as follows:
3. With a Korean interpreter (and often [with] Ms. Hwang's son) present, Ms. Hwang and I discussed many times the possible negative effect a criminal conviction could have upon her immigration status. Indeed, I consulted with an out of state immigration service for CJA lawyers that warned of the possibility of removal if my client pled guilty to the § 1955 charge. Pursuant to this concern, I contacted local immigration attorney Carmen [Di Amore]-Siah to request she meet with my client for a consultation as to the collateral immigration consequences of pleading to the § 1955 charge. I did not personally know Ms. [Di Amore]-Siah, but saw through her website she was a member of the American Immigration Lawyers Association and had apparently represented many immigration clients.
4. In January 2014, Ms. [Di Amore]-Siah agreed to meet with my client, her son and interpreter Esther Cho. It is my understanding that at this meeting, Ms. [Di Amore]-Siah told Ms. Hwang that if she pled guilty to a violation of 18 U.S.C. § 1955 and received a prison sentence of less than a year, Ms. Hwang would not be subject to removal, or, if she were ...