United States v. Amin De Castro

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 21-2817
______
UNITED STATES OF AMERICA
v.
AMIN DE CASTRO,
Appellant
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 2-15-cr-00114-001)
District Judge: Honorable Juan R. Sanchez
______
Argued June 16, 2022
Before: HARDIMAN, SMITH and FISHER, Circuit Judges.
(Filed: September 27, 2022)
Kenneth L. Mirsky [ARGUED]
2033 Walnut Street
Philadelphia, PA 19103
Counsel for Appellant
Jennifer Arbittier Williams, United States Attorney
Jessica Rice, Assistant United States Attorney [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
______
OPINION OF THE COURT
______
2
FISHER, Circuit Judge.
Amin De Castro, a native and citizen of the Dominican
Republic, appeals from the United States District Court for the
Eastern District of Pennsylvania’s order denying his petition
for a writ of error coram nobis. De Castro seeks to vacate his
conviction for being an illegal alien in possession of a firearm
in violation of 18 U.S.C. § 922(g)(5)(A). De Castro’s
conviction led to his deportation, and he now seeks to undo
those collateral immigration consequences. He bases his
petition on the recent Supreme Court decision Rehaif v. United
States, 139 S. Ct. 2191 (2019), in which the Court held that
under § 922(g), an illegal alien in possession of a firearm must
be found to have had knowledge he was an illegal alien at the
time of his arrest. We will affirm the District Court’s denial of
the coram nobis petition, but for the following reasons, we do
so on different grounds.
De Castro came to the United States through Puerto
Rico around 2002 or 2003 using a Dominican passport. In
2012, he married a U.S. citizen. On his behalf, his spouse
submitted Immigration Form I-130, Petition for Alien Relative,
in January 2014. The United States Citizenship and
Immigration Services approved the petition and sent notice to
De Castro’s spouse in June of that same year. This notice stated
that “[t]he approval of this visa petition does not in itself grant
any immigration status and does not guarantee that the alien
beneficiary will subsequently be found to be eligible for a visa
[or] for admission to the United States.” App. 90. A month
later, the Department of State National Visa Center notified De
3
Castro that his immigrant visa petition was eligible for further
processing.
In September 2014, a Philadelphia police officer
arrested De Castro for being an alien in possession of a weapon
under 18 U.S.C. § 922(g)(5)(A). The officer approached De
Castro after receiving a report that a Hispanic man was
pointing a gun at children outside of a flower shop on the 1800
block of North 31st Street in Philadelphia. Upon arriving at the
location, the officer noticed De Castro—who matched the
description of the suspect—standing outside of an abandoned
store front with his right hand in his front pants pocket. The
officer asked De Castro to remove his hand from his pocket.
When De Castro complied, his movement revealed the handle
of a pistol in his pants pocket. The officer asked for
identification and whether De Castro had a permit to carry a
firearm. De Castro informed the officer that he was in the
United States illegally and did not have a license to carry a
firearm. The officer arrested De Castro.
The grand jury indicted De Castro on one count of
possession of a firearm by an illegal alien under
§ 922(g)(5)(A). A jury found him guilty in September 2016.
De Castro subsequently filed a motion for a new trial, asserting
ineffective assistance of counsel. The District Court granted
the motion. Rather than face a second jury, De Castro pleaded
guilty in April 2017. The District Court accepted the plea and
sentenced him to time served plus two years of supervised
release.1
1
De Castro appealed his judgment of conviction to this
Court, which we affirmed. United States v. De Castro, 905
F.3d 676 (3d Cir. 2018).
4
Following his conviction, the Department of Homeland
Security initiated removal proceedings against De Castro.
However, De Castro was allowed to depart voluntarily to the
Dominican Republic in 2017 after an immigration judge
determined he qualified as a legal permanent resident. Thirteen
months after the Supreme Court’s decision in Rehaif v. United
States, De Castro filed a petition for a writ of error coram nobis
challenging his conviction. In Rehaif, notwithstanding decades
worth of circuit caselaw to the contrary, the Supreme Court
held that the “knowingly” provision of § 922(g) applies to both
the possession and immigration status elements. 139 S. Ct. at
2200. Based on Rehaif, De Castro petitioned the District Court
to issue a writ of error coram nobis vacating his conviction
because the Government never proved he knew he was
illegally or unlawfully in the United States, and the District
Court never informed him at his plea colloquy that the
Government was required to prove that element. The District
Court denied his petition, and De Castro filed this timely
appeal.
The District Court had jurisdiction under 18 U.S.C.
§ 922(g)(5)(A) (alien in possession of firearm) and 18 U.S.C.
§ 3231 (offenses against the laws of the United States). We
exercise jurisdiction under 28 U.S.C. § 1291 (final decision)
and 18 U.S.C. § 3742 (sentence review). We review the
District Court’s legal conclusions de novo and its factual
findings for clear error. Ragbir v. United States, 950 F.3d 54,
60 (3d Cir. 2020).
5
A writ of error coram nobis is an “extraordinary
remedy” that may only be issued in the most limited of
circumstances. United States v. Denedo, 556 U.S. 904, 911
(2009). A petitioner may seek a writ of error coram nobis to
challenge his federal conviction when he is no longer in
custody but still faces consequences from his conviction.
Ragbir, 950 F.3d at 62. We recently synthesized decades of
coram nobis law into a straightforward, five-part test. See id.
We write today to emphasize the need for strict adherence to
Ragbir’s five-part test and to announce the applicable standard
for assessing its fundamental error element.
The background for our discussion is our decision in
Ragbir. So we begin with a brief summary. Ravidath Ragbir
was a green card holder from Trinidad and Tobago who was
convicted of mortgage fraud with a loss of more than $10,000.
Id. at 57–58. Given Ragbir’s immigration status and the extent
of his fraud, DHS sought to remove him to his native country.
Id. at 58. Trying to avoid removal as a result of his conviction,
Ragbir filed a petition for a writ of error coram nobis, which
the United States District Court for the District of New Jersey
denied. Id. at 57. We affirmed, holding that Ragbir did not meet
the necessary conditions for relief. Id.
Because coram nobis petitions are few and far between,
we took the opportunity in Ragbir to condense decades of
coram nobis law from our Court and the Supreme Court. We
explained that this rare remedy may be granted only if five
prerequisites are met: “the petitioner (1) is no longer in
custody; (2) suffers continuing consequences from the
purportedly invalid convictions; (3) provides sound reasons for
failing to seek relief earlier; (4) had no available remedy at the
6
time of trial; and (5) asserted error(s) of a fundamental kind.”
Id. at 62. After providing more color to the law of the final
three elements, we held that Ragbir did not have a sound reason
for delay. Id. at 66. Because a petition must be denied if even
one element is not satisfied, we affirmed the district court’s
denial.
Here, the District Court denied De Castro’s petition for
a writ of error coram nobis, but it did not rely on the detailed
framework we outlined in Ragbir to do so. Instead, it used this
Court’s logic from a recent habeas corpus decision regarding
unpreserved Rehaif claims and applied it to the coram nobis
context.
When seeking habeas relief, a prisoner may
successfully bring a second or successive habeas petition only
in the event of a new rule of constitutional law made retroactive
to cases on collateral review by the Supreme Court. 28 U.S.C.
§ 2255(h)(2). We held that such second or successive petitions
based on the Supreme Court’s decision in Rehaif must fail. In
re Sampson, 954 F.3d 159, 161 (3d Cir. 2020) (per curiam).
We explained that “Rehaif did not state a rule of constitutional
law at all. Rather, it addressed what the statutes enacted by
Congress require for a conviction under 18 U.S.C. § 922(g).”
Id. Relying on our recognition that coram nobis relief is a
rarity, the District Court concluded that if De Castro would be
ineligible for relief under the standards for second or
successive habeas petitions, he must also be ineligible for
coram nobis relief. The District Court explained that, because
the coram nobis standard “is more stringent than that
applicable on direct appeal or in habeas corpus,” a claim in a
coram nobis petition that would be unsuccessful in a habeas
7
petition should likewise fail. App. 8 (quoting Ragbir, 950 F.3d
at 62).
Although we understand the temptation to analogize to
habeas law—as we previously have for coram nobis
petitions—second and successive petitions are not sufficiently
comparable. Thus, the District Court’s habeas analysis was
flawed and unnecessary. Second and successive habeas
petitions are governed by statutory language not applicable to
coram nobis petitions. See 28 U.S.C. § 2255(h)(2). And we
hesitate to make any generalized rule that a coram nobis
petition necessarily fails because a habeas petition would.
Analogizing to habeas is also unnecessary here because Ragbir
clearly sets forth the framework for analyzing a petition for
coram nobis relief. To be sure, comparisons to habeas law may
be helpful when considering unexplored areas of coram nobis
law. But when dealing with coram nobis issues on which this
Court has spoken, resorting to statutory habeas principles is
unnecessary and improper.
Anticipating that its reliance on Sampson might be
disfavored, the District Court also analyzed De Castro’s
petition based on the five prerequisites outlined in Ragbir and
found they were met but the petition should still be denied.
Although we agree the petition should be denied, we use
alternative means to arrive at that conclusion. The Government
concedes that De Castro satisfies the first two Ragbir
requirements—the petitioner is no longer in custody and is
suffering continuing consequences from the purportedly
invalid conviction. We find nothing to persuade us otherwise,
so we will not address them. The other three conditions,
however, require further discussion.
8
1. Sound Reason for Delay
As we stated in Ragbir and other cases before it, a
petitioner has no fixed deadline by which he must seek coram
nobis relief. Coram nobis is a “remedy of last resort” that
requires us to balance the often-conflicting interests of finality
and equity. Ragbir, 950 F.3d at 63 (quoting Fleming v. United
States, 146 F.3d 88, 89–90 (2d Cir. 1998) (per curiam)). We do
not require a petitioner to “challenge his conviction at the
earliest opportunity,” but do expect the petitioner to have
“sound reasons for not doing so.” Id. (quoting United States v.
Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005), abrogated on
other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010)).
But a petitioner should not mistake the standard as easy to meet
simply because it permits some flexibility. Indeed, the “‘sound
reason’ standard is even stricter than that used to evaluate
§ 2255 petitions.” Mendoza v. United States, 690 F.3d 157, 159
(3d Cir. 2012) (quoting United States v. Stoneman, 870 F.2d
102, 106 (3d Cir. 1989)).
De Castro filed his petition thirteen months after the
Supreme Court issued its decision in Rehaif. The District Court
held that De Castro met the sound reason requirement, finding
this delay reasonable because at the time of Rehaif’s issuance
De Castro no longer lived in the United States, leaving him
without “easy or ready access” to his attorney or other legal
resources. App. 9 n.3. The District Court also noted the
“unusual and extenuating circumstances” posed by the ongoing
Covid-19 pandemic. Id. The Government argues that thirteen
months is too long a delay as a matter of law. And even if it is
not, De Castro’s knowledge-of-immigration-status argument
was available to him at his plea hearing, which occurred before
9
the Supreme Court’s decision in Rehaif.2 We address these
arguments in turn.
The Government first argues that regardless of the
reasons for De Castro’s delay, thirteen months is too long a
delay as a matter of law. Because habeas petitioners must file
a petition within one year of the date on which the Supreme
Court initially recognized the petitioner’s asserted right, and
the coram nobis standard is stricter than the one used to
evaluate § 2255 petitions, the Government argues a coram
nobis petitioner necessarily must file within one year too. The
clock on De Castro’s coram nobis petition would run from the
Supreme Court’s issuance of its Rehaif opinion. Because De
Castro filed thirteen months after Rehaif, his petition would be
time-barred. We decline to adopt a one-year time limit for
coram nobis petitions. Putting aside that the habeas time
limitation stems from a statutory requirement not governing
coram nobis, this proposed rule plainly contradicts our
precedent, which requires an individualized assessment of each
coram nobis petition. See Ragbir, 950 F.3d at 63.
Our precedent does not mandate, or even suggest, that
thirteen months is too long a delay. In Ragbir, this Court
faulted the petitioner for taking six years to file a coram nobis
petition. Id. at 64. The petitioner discovered the immigration
consequences of his sentence stipulation in 2006, and his
immigration attorney advised him to pursue overturning the
conviction. Id. at 58. Still, the petitioner did not pursue a coram
2
We construe the Government’s argument that De
Castro could have pursued his knowledge-of-immigration-
status argument at his plea hearing as applicable to both the
“sound reason for delay” and “availability of remedy at the
time of trial” elements. See infra Section III.C.2.
10
nobis petition until 2012. Id. at 59. In the years between 2006
and 2012, the petitioner pursued administrative remedies, such
as obtaining a visa and staying his removal. Id. at 58–59. We
explained that the pursuit of administrative remedies did not
negate his six-year delay in seeking coram nobis relief. Id. at
64. The petitioner could have launched a collateral challenge
concurrently with his administrative challenge. Id. Similarly,
the petitioner in Mendoza delayed filing for four years. 690
F.3d at 160.
De Castro’s thirteen-month delay is significantly less
than the six-year gap in Ragbir and the four-year gap in
Mendoza. It is also less than the eighteen-month delay we held
reasonable in United States v. Cariola, 323 F.2d 180, 183 (3d
Cir. 1963). Accordingly, we are unwilling to say the District
Court’s factual findings about the difficulties De Castro faced
while out of the country and without counsel during a novel
global pandemic were clear error.
The Government next argues that De Castro’s
knowledge-of-immigration-status argument is five years too
late. Specifically, the Government contends that whether
§ 922(g) requires proof that the defendant knew he was
illegally in the country at the time of his arrest was an open
question at the time of De Castro’s plea hearing. Thus, the
argument was available to him and any delay in making it was
unreasonable. This Court has explained that ambiguity in the
law does not justify a delay in seeking coram nobis relief.
Ragbir, 950 F.3d at 65 (citing Mendoza, 690 F.3d at 160).
“What matters is whether a claim can be reasonably raised.”
Id. The critical word is “reasonably.” The Government argues
that what is reasonable depends not on whether a claim would
have succeeded, but whether a party had the ability to make
certain claims. Surely, De Castro had such ability.
11
The procedural default rule from the habeas context
teaches that a claim not raised on direct review may be raised
on habeas only if the petitioner can demonstrate either “actual
innocence” or “cause” and “actual prejudice.” Bousley v.
United States, 523 U.S. 614, 622 (1998) (internal quotations
omitted). In the habeas context under Bousley, to demonstrate
“cause,” to avoid the effect of an earlier failure to raise a claim,
a party can show that a claim “is so novel that its legal basis is
not reasonably available to counsel.” Id. (quoting Reed v. Ross,
468 U.S. 1, 16 (1984)). The Supreme Court also has explained
that even an argument’s “futility cannot constitute cause [for
defaulting a claim] if it means simply that a claim was
‘unacceptable to that particular court at that particular time.’”
Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982) (quoting Myers
v. Washington, 646 F.2d 355, 364 (9th Cir. 1981) (Poole, J.,
dissenting), vacated sub nom. Washington v. Myers, 456 U.S.
921 (1982)). Here, however, De Castro cannot show futility
since the defendant in Rehaif argued the same point before De
Castro pleaded guilty and Rehaif succeeded on that issue in the
Supreme Court. The Court in Reed also said a claim should not
be considered reasonably available where it challenges “a
longstanding and widespread practice to which [the Supreme]
Court has not spoken, but which a near-unanimous body of
lower court authority has expressly approved.” Reed, 468 U.S.
at 17 (citation omitted). Read together, Reed and Engle
recognize the distinction between a live debate and a settled
one.
If cause is shown where the argument would require the
upending of unanimous lower court authority, we would
struggle to find an example better than Rehaif, involving the
Supreme Court upending a law that was settled by “a near-
unanimous body of lower court authority.” Before Rehaif,
“every single Court of Appeals to address the question” had
12
held that § 922(g) did not require the government to prove the
immigrant knew he was in the United States illegally at the
time of his arrest. Rehaif, 139 S. Ct. at 2201 (Alito, J.,
dissenting); see also United States v. Smith, 940 F.2d 710, 713
(1st Cir. 1991); United States v. Huet, 665 F.3d 588, 596 (3d
Cir. 2012); United States v. Langley, 62 F.3d 602, 604–608
(4th Cir. 1995) (en banc); United States v. Dancy, 861 F.2d 77,
80–82 (5th Cir. 1988) (per curiam); United States v. Lane, 267
F.3d 715, 720 (7th Cir. 2001); United States v. Thomas, 615
F.3d 895, 899 (8th Cir. 2010); United States v. Miller, 105 F.3d
552, 555 (9th Cir. 1997); United States v. Games-Perez, 667
F.3d 1136, 1142 (10th Cir. 2012); United States v. Jackson,
120 F.3d 1226, 1229 (11th Cir. 1997) (per curiam); United
States v. Bryant, 523 F.3d 349, 354 (D.C. Cir. 2008). Ten of
the courts of appeals had come to that conclusion, and all ten
did so before 2017—the time of De Castro’s plea hearing.
Ultimately, we find the Supreme Court’s recent
decision in Greer v. United States, 141 S. Ct. 2090 (2021),
instructive as to whether De Castro lacked cause for his failure
to preserve his Rehaif argument. Though Greer concerned
Rehaif arguments presented on direct review and subject to
plain error analysis, id. at 2099, the standard for coram nobis
is even stricter. As the Court stated in Greer, “[a]ll that
mattered was that [De Castro] failed to raise a
contemporaneous [Rehaif] objection” during his trial and
during his subsequent plea proceeding. Id.; cf. United States v.
Frady, 456 U.S. 152, 166 (1982) (concluding that a
“significantly higher hurdle” than the “‘plain error’ standard”
applies to Section 2255 motions). Because the Court in Greer
acknowledged that Rehaif undid a “uniform wall of precedent”
from the courts of appeals, 141 S. Ct. at 2099, and that did not
suffice to show cause, we hold that De Castro’s reference to
that same “wall of precedent” is no excuse for his failure to
13
preserve a Rehaif argument. And that conclusion obtains
regardless, whether analyzed under the cause prong in the
traditional post-conviction review context or under coram
nobis’s “sound reason” prong and the “no available remedy at
the time of trial” prong, Ragbir, 950 F.3d at 63, discussed
below.
Since Rehaif, the Eleventh Circuit has held that raising
a knowledge-of-immigration-status argument was not “truly
novel” so the defendant’s failure to raise it at trial or on direct
appeal meant he could not overcome the procedural default
bar. United States v. Innocent, 977 F.3d 1077, 1084 (11th Cir.
2020) (quoting United States v. Bane, 948 F.3d 1290, 1296–97
(11th Cir. 2020)). Although neither of these Eleventh Circuit
cases acknowledge Reed’s holding that a claim is novel when
it challenges “a longstanding and widespread practice to which
[the Supreme] Court has not spoken, but which a near-
unanimous body of lower court authority has expressly
approved,” 468 U.S. at 17 (citation omitted), we cannot ignore
the import of the Supreme Court’s recent decision Greer on
our present analysis. Thus, we conclude De Castro did not have
sound reason for delay.
Because a petitioner must satisfy each of Ragbir’s five
prerequisites to obtain coram nobis relief, we could stop our
analysis here. Nonetheless, we continue on to clarify this niche
area of the law.
2. Availability of Remedy at the Time of Trial
The fourth element a petitioner must prove is that he had
no available remedy at the time of his trial or, in De Castro’s
case, guilty plea. Ragbir, 950 F.3d at 63. This requirement
“focuses on whether a party was unable to make certain
arguments at trial or on direct appeal.” Id. In Ragbir, we
highlighted that “[i]n some circumstances, overlap may exist
14
between the coram nobis elements of ‘sound reasons for delay’
and ‘no available remedy at the time of trial.’” Id. at 67 n.36.
This is one of those circumstances.
Because we hold that De Castro’s knowledge-of-
immigration-status argument was not futile in 2017—the time
of De Castro’s plea deal—and he had no sound reason for delay
in raising the issue—like others such as Rehaif—we also hold
there was a remedy available to De Castro at that time. Thus,
the District Court erred in holding otherwise.
3. Fundamental Error
We end our analysis with the fundamental error
element. An error is fundamental if it would result in a
“complete miscarriage of justice.” United States v. Woods, 986
F.2d 669, 676, 678 & n.16 (3d Cir. 1993) (quoting Davis v.
United States, 417 U.S. 333, 346 (1974)). A fundamental error
is one that usually cannot be remedied simply by a new trial.
Ragbir, 950 F.3d at 63; United States v. Rhines, 640 F.3d 69,
71 (3d Cir. 2011). “[T]he defects must completely undermine
the jurisdiction of the court, rendering the trial itself invalid.”
Ragbir, 950 F.3d at 63. When other remedies are available,
coram nobis relief is not appropriate. Id.
But what standard should we use to evaluate De
Castro’s fundamental error claim? He argues we should use a
plain error standard. Courts typically invoke plain error review
on direct appeal for claims not raised at trial. E.g., Frady, 456
U.S. at 164; Greer, 141 S. Ct. at 2100. The District Court
reviewed De Castro’s fundamental error argument using this
standard.
But De Castro did not raise his Rehaif argument on
direct appeal. Rather, he has raised it for the first time as a
collateral attack seeking a writ of error coram nobis. As a
“general rule,” we do not allow claims not raised at trial or on
15
direct appeal to be raised on collateral review. Massaro v.
United States, 538 U.S. 500, 504 (2003). Plain error review is
“out of place when a prisoner launches a collateral attack
against a criminal conviction after society’s legitimate interest
in the finality of the judgment has been perfected by the
expiration of the time allowed for direct review or by the
affirmance of the conviction on appeal.” Frady, 456 U.S. at
164. In the habeas context, we allow a party to overcome their
“procedural default” if it can show either cause and prejudice
or actual innocence, Bousley, 523 U.S. at 622, not because it is
statutorily or constitutionally mandated but because it
“conserve[s] judicial resources and . . . respect[s] the law’s
important interest in the finality of judgments.” Massaro, 538
U.S. at 504. The Government urges us to adopt the same rule
in the coram nobis context. Consistent with our earlier
statements that “the standard for obtaining coram nobis is more
stringent than that applicable . . . in habeas corpus,” Ragbir,
950 F.3d at 62 (original alterations omitted), we oblige.
De Castro cannot meet this standard’s heavy burden of
showing both cause and prejudice. He argues that he could not
have known at the time of his trial that the Government needed
to prove he knew he was unlawfully in the country. As
discussed in Section III.C.1 and III.C.2, De Castro has not
shown cause for failing to raise the Rehaif issue. Cause does
not exist just because an argument seemed futile to the
petitioner at the time of trial or guilty plea.
De Castro also fails at the prejudice step. To show
prejudice, he must establish that the Government’s failure to
prove an essential element of the claim “worked to his actual
and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” Murray v. Carrier, 477
U.S. 478, 494 (1986) (quoting Frady, 456 U.S. at 170). De
Castro’s presentence report states that during his arrest he
16
admitted he was in the country illegally. But the presentence
report also contains an express disclaimer that De Castro does
not stipulate to the facts as summarized in the report. And De
Castro argues that he stated he did not have a U.S. passport and
was not a citizen, but never admitted he knew he was in the
country illegally. He argues that the police’s arrest memo
confirms this.
The statements he points to in the arrest memo do not
negate the statements in the presentence report. De Castro
argues that we should ignore the presentence report because he
had no reason to challenge it at the time of creation because his
conviction did not depend on his knowledge of his immigration
status. We disagree. A defendant has a strong interest in
ensuring all aspects of his presentence report are accurate
because “the court . . . may accept any undisputed portion of
the presentence report as a finding of fact.” Fed. R. Crim. P.
32(i)(3)(A). With this statement from the presentence report,
taken as fact because De Castro did not dispute the report, De
Castro cannot show that the Government’s failure to prove the
knowledge-of-immigration-status element actually and
substantially disadvantaged him because a jury still would
have had enough evidence to convict. Thus, De Castro cannot
show actual prejudice.
Failing to meet the cause and prejudice standard, De
Castro’s only option is to make a threshold showing of “actual
innocence.” Bousley, 523 U.S. at 622–23. De Castro again falls
short. “Actual innocence” requires a petitioner to show that it
was “more likely than not that no reasonable juror would have
convicted him” had the district court correctly advised him at
the plea hearing and given the government the opportunity to
adduce evidence of the omitted element. Schlup v. Delo, 513
U.S. 298, 327–28 (1995). But “‘actual innocence’ means
factual innocence”; therefore, “the Government is not limited
17
to the existing record to rebut any showing that petitioner
might make.” Bousley, 523 U.S. at 623–24. This includes
“evidence [that] was not presented during the petitioner’s plea
colloquy and would not normally have been offered before [the
Court’s] decision in” Rehaif reinterpreting § 922(g). Id.
The Government points to statements in De Castro’s
presentence report to support that he knew he was in the
country illegally, but has additional support in testimony from
the arresting officer about statements De Castro made when he
was arrested and De Castro’s sworn statements to an
immigration enforcement agent regarding the circumstances of
his illegal entry. Critically, De Castro offers no reasonable
rebuttal to the Government’s position. Instead, he argues that
despite knowing that he entered the country illegally in 2002
or 2003, he “legitimately believed he was not unlawfully in the
country but was allowed to remain in the United States while a
determination was made of his immigration status” because of
the notice he received after submitting Form I-130. Appellant
Br. 18. This argument strains credulity. The I-130 form
specifically states that “[t]he approval of this visa petition does
not in itself grant any immigration status,” and “THIS FORM
IS NOT A VISA NOR MAY IT BE USED IN PLACE OF A
VISA.” App. 90. The notice also stated that De Castro’s
immigration visa petition was merely eligible “for further
processing” and other “steps in the immigration process” still
must take place. Id. at 92. Considering all of this, De Castro
cannot establish actual innocence under the Rehaif standard
because he cannot demonstrate it is more likely than not that
no reasonable juror would conclude that he knew of his status
as an illegal alien at the time he possessed a firearm. Because
he has no legitimate claim of actual innocence, he cannot prove
fundamental error.
18
To grant a petition for a writ of error coram nobis, a
District Court must find a petitioner has established all five
Ragbir prerequisites. De Castro falls short on more than one.
For these reasons, we will affirm the District Court’s order
denying the writ of error coram nobis.
19