NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 19-1407 _______________

HEA THAI, Appellant

v.

UNITED STATES OF AMERICA _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cv-02538) District Judge: Honorable Paul S. Diamond _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on May 22, 2020

Before: McKEE, BIBAS, and NYGAARD, Circuit Judges

(Opinion Filed: July 24, 2020) _______________

OPINION * _______________

BIBAS, Circuit Judge.

Though a criminal defense lawyer must warn his client if a guilty plea may lead to his

removal from the country, the lawyer need not predict whether the Government will actu-

ally remove his client.

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. Hea Thai is a lawful permanent resident from Cambodia. In 2008, he was charged with

federal drug crimes. Thai’s lawyer correctly advised him that if he pleaded guilty, he would

be “subject to removal.” II JA 100; see

(a)(43)(B), 1227(a)(2)(A)(iii). His

lawyer also told him that, at the time, the United States was not removing people to Cam-

bodia. Thai pleaded guilty and was sentenced to 33 months’ imprisonment.

While Thai was in prison, an immigration judge ordered him removed. He was released

from prison in 2012 but has not yet been removed because Cambodia has not authorized

his return. Five years after his release, he filed this petition for a writ of error coram nobis.

He argued that his guilty plea was invalid because counsel never warned him of the immi-

gration consequences of pleading guilty, as required by Padilla v. Kentucky,

(2010).

After hearing testimony from Thai and his lawyer, the District Court denied Thai’s pe-

tition. The court credited counsel’s testimony that he had warned Thai of the possibility of

removal and discredited Thai’s testimony to the contrary. So it found no ineffective assis-

tance of counsel. In the alternative, it found that Thai had no good reason for waiting seven

years to seek relief and that his plea agreement waived his right to bring this collateral

attack.

Thai now appeals. We review the District Court’s factual findings for clear error and

its legal conclusions de novo. Ragbir v. United States,

(3d Cir. 2020). We

defer to its credibility determinations. Fed. R. Civ. P. 52(a)(6); Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc.,

(3d Cir. 2000).

2 Coram nobis lets a petitioner who is not in custody challenge his conviction for “fun-

damental defects,” including ineffective assistance of counsel. United States v. Rad-O-Lite

of Phila., Inc.,

(3d Cir. 1979). To get relief, a petitioner must show that

he: “(1) is no longer in custody; (2) suffers continuing consequences from the purportedly

invalid conviction; (3) [had] sound reasons for failing to seek relief earlier; (4) had no

available remedy at the time of trial; and (5) asserted error(s) of a fundamental kind.” Rag-

bir,

. A petitioner must satisfy all five requirements.

Thai’s claim fails on both the third and fifth elements. On the fifth one, Thai’s guilty

plea rested on no “fundamental” error. Thai claims that his lawyer never warned him that

he could be removed. But the District Court “largely discredit[ed]” Thai’s testimony as

“contradictory [and] demonstrably false.” I JA 5. Instead, it credited Thai’s lawyer, who

said he “definitely” told Thai that if he pleaded guilty, he would be subject to removal. II

JA 119. We see no reason to second-guess the District Court’s findings on credibility.

Thai also argues that even this warning of removal was not enough. He submits that his

lawyer should have told him “unequivocally” that he would “certainly” be removed. Ap-

pellant’s Br. 30. But Padilla requires no such thing. Defense lawyers must warn their cli-

ents of the “risk of deportation,” not predict with certainty whether removal will happen.

.

Plus, on the third element, we see no sound reason for Thai’s seven-year delay in seek-

ing relief. He blames that delay on his lawyer’s alleged assurances, but the District Court

disbelieved those allegations. And Thai never appealed or filed a habeas petition, even

though the judge at his plea hearing warned him that his plea would make him removable

3 and he knew he could get free appellate counsel. In fact, Thai admits that he sought relief

only after he learned that Cambodia was once again accepting deportees from the United

States. That is not a sound reason for delay. See Ragbir,

.

In any event, as the District Court found, Thai knowingly and voluntarily waived his

right to collaterally attack his plea agreement. Because his counsel was effective, enforcing

Thai’s waiver does not “work a miscarriage of justice.” United States v. Fazio,

(3d Cir. 2015).

* * * * *

Padilla instructs defense lawyers to warn their clients of the risk of removal, not to

predict actual removal. Thai’s lawyer warned him of that risk. That is all Padilla requires.

So we will affirm the District Court’s denial of relief.

4