Appeal from the United States District Court for the Southern District of Texas.
For United States of America, Plaintiff - Appellee: Katherine Lisa Haden, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.
For Innocent Rutahagara Batamula, Defendant - Appellant: George William Vie III, Mills Shirley, L.L.P., Galveston, TX.
Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge.[*]
Innocent Rutahagara Batamula, a citizen of Tanzania, after entering the United States on a student visa, marrying a United States citizen, and applying for a change in his immigration status, pleaded guilty pursuant to a written plea agreement to one count of making a false statement to a federal agent, 18 U.S.C. § 1001, and one count of making a false statement in an application for a passport, 18 U.S.C. § 1542. The court sentenced Batamula to time served, one year of supervised release, and a $2,000 fine. Batamula did not appeal from his conviction or sentence but filed a motion for habeas corpus pursuant to 28 U.S.C. § 2255, asserting that his retained attorney provided ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), by failing to advise
him that the offenses to which he was pleading guilty would result in his deportation. The district court denied Batamula's § 2255 motion, we granted a certificate of appealability, and Batamula now appeals. For the reasons assigned hereinafter, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.
Batamula is a Tanzanian citizen who entered the United States in 2001 on a student visa and has since resided in Houston, Texas. In 2008, Batamula applied for and obtained a United States passport for his biological son, B.B., a citizen and then-resident of Tanzania. To secure the passport, Batamula used the name and birth date of a different Tanzanian child whom we will refer to as Z.M.--born in Tanzania to a couple with whom Batamula was acquainted. Approximately three years later, on May 11, 2011, Z.M.'s parents applied for a passport for their son and discovered that a passport had already been issued in his name but displayed a photograph of someone else's child--Batamula's son, B.B. When questioned by federal agents, Batamula said that he did not know the child pictured in the fraudulent passport.
Batamula was initially charged with one count of false representation to a United States agent under 18 U.S.C. § 1001. Thereafter, a superseding information was filed that additionally charged one count of making a false statement in an application for a United States passport in violation of 18 U.S.C. § 1542. On November 17, 2011, pursuant to a written plea agreement, Batamula entered a plea of guilty to both counts.
Batamula's guilty plea proceeding was conducted alongside another non-citizen defendant who was pleading guilty to an unrelated felony charge. During the proceeding, Batamula informed the court that he spoke with his attorney about the charges approximately ten times, that his attorney answered all of his questions, that he was " fully satisfied with the advice and counsel provided" by his attorney, and that his attorney had done everything asked of him. Moments before accepting the plea, the court addressed both Batamula and the other defendant present at the proceeding, stating: " The offenses that you're pleading guilty to are felonies. That means that each of you will likely be deported after you serve your sentence." The court then found that Batamula's guilty plea was knowing and voluntary and accepted his guilty plea to both counts.
On May 1, 2012, Batamula moved to vacate or set aside his conviction and sentence pursuant to 28 U.S.C. § 2255, contending that his attorney failed to provide effective assistance of counsel under Padilla by failing to advise him that pleading guilty to both charges would result in his deportation. He averred in a sworn affidavit that, if his attorney had advised him that pleading guilty to the charges would make him " mandatory [ sic ] deportable" he would have refused to " make the plea," would have pleaded not guilty, and would have insisted on going to trial " as that would have been [his] only alternative to avoid deportation." Batamula attached to his habeas petition a sworn affidavit from his retained counsel, which stated that the attorney " advised [Batamula] on immigration consequences solely based on the language (if any) of the plea agreement
provided by the office. I did not advice [ sic ] him that conviction in a two count indictment in his case would make him mandatory [ sic ] deportable." Additionally, Batamula presented the affidavit of an immigration attorney who attested that, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), Batamula's guilty plea rendered him " presumptively deportable" because his convictions are considered crimes of moral turpitude.
The district court granted the Government's motion for summary judgment and denied Batamula's § 2255 motion without an evidentiary hearing, finding that he had " shown no right to relief."  As relevant here, the district court concluded that " even if Batamula's attorney was deficient in failing to inform Batamula of the immigration consequences of his guilty plea, Batamula has not shown that such a deficiency prejudiced him because before accepting his guilty plea the court informed him that he would likely be deported after he served his sentence. . . [Batamula therefore] cannot satisfy the [ Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] prejudice prong[.]" Thus, the district court held as a matter of law that if a judge, during the Federal Rule of Criminal Procedure 11 (" Rule 11" ) proceeding, informs the defendant that deportation is a likely result of his guilty plea, any prejudice caused by counsel's failure to advise his client ...