Ragbir v. United States

• Decision Date: 10 February 2020
• Docket Number: No. 19-1282,19-1282
• Citation: 950 F.3d 54
• Parties: Ravidath RAGBIR, Appellant v. UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

950 F.3d 54

Ravidath RAGBIR, Appellant

v.UNITED STATES of America

No. 19-1282

United States Court of Appeals, Third Circuit.

Argued October 30, 2019

Filed: February 10, 2020

Alina Das, Amy Joseph [ARGUED], Jessica Rofe, Daniela Ugaz [ARGUED], Washington Square Legal Services, Inc., Immigrant Rights Clinic, 245 Sullivan Street, 5th Floor, New York, NY 10012, R. Scott Thompson, Wollmuth Maher & Deutsch, 500 Fifth Avenue, 12th Floor, New York, NY 10110, Counsel for Appellant

Mark E. Coyne [ARGUED], Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellee

Lawrence S. Lustberg, Gibbons, One Gateway Center, Newark, NJ 07102, Counsel for Amici Immigrant Defense Project and National Immigration Project of the National Lawyers Guild in Support of Appellant

Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges

OPINION

SMITH, Chief Judge.

Ravidath Ragbir, a green card holder from Trinidad and Tobago, was convicted of mortgage fraud in 2000. Because the loss attributable to the fraud exceeds $10,000, the Department of Homeland Security seeks to remove Ragbir to his native country. To avoid the immigration consequences collateral to his conviction, Ragbir filed a petition for a writ of error coram nobis, seeking either a new trial or resentencing. Because Ragbir fails to meet the requirements for issuance of the writ, we will affirm the District Court’s denial of the petition.

I

A. District of New Jersey Felony Conviction

Ragbir came to the United States as a lawful permanent resident in 1994, and by the late 1990s, he worked in sales at Household Finance Corporation ("HFC"). At HFC, Ragbir was responsible for soliciting mortgage applications, conducting initial reviews, and referring appropriate applications to the company’s underwriter. A real estate broker going by the name of Robert Taylor—whose actual name was Robert Kosch—recruited individuals to submit fraudulent mortgage applications, which Ragbir preliminarily approved. After HFC had disbursed large sums of money, company investigators and the police began questioning various employees, including Ragbir, about the fraudulent applications.

Ragbir and four others were eventually indicted on six counts of wire fraud and one count of conspiracy to commit wire fraud under 18 U.S.C. §§ 371, 1343. The indictment alleged that Ragbir accepted and preliminarily approved fraudulent applications from individuals that Kosch hired to pose as loan applicants. Attorney Patricia Lee represented Ragbir in the criminal proceedings, and before trial, he raised with her his concerns about the immigration consequences of a conviction. Attorney Lee advised Ragbir that a conviction could result in deportation, but Ragbir mistakenly gathered that a conviction alone would make him deportable.

At his November 2000 trial, the government presented Ragbir’s confession to the police. Although defense counsel challenged the accuracy of the transcribed confession, the jury found Ragbir guilty on all counts. The jury was not required, however, to make a loss determination, so that issue was addressed at sentencing. Defense counsel and the government vigorously disputed the dollar figure, but the two sides eventually reached an agreement that the actual loss was between $350,000 and $500,000.¹ Attorney Lee counseled Ragbir to waive his right to a hearing at which the prosecution and the defense could present evidence about what sentence is appropriate and to stipulate to the agreed-upon range. Ragbir agreed to the stipulation, believing that his convictions alone made him deportable; the amount of loss, in his view, was irrelevant.² The District Court adopted the stipulation, sentencing Ragbir to thirty months’ imprisonment, three years’ supervised release, and $350,001 in restitution.

Ragbir appealed, and the service of his sentence was delayed pending the appeal. Ragbir’s appellate counsel, Anthony Fusco, asserted a variety of claims—among them, that Ragbir’s confession was involuntary and the evidence at trial was insufficient to find Ragbir guilty. This Court affirmed Ragbir’s convictions and sentence, United States v. Ragbir , 38 F. App'x 788 (3d Cir. 2002), and the United States Supreme Court denied certiorari. Ragbir v. United States , 537 U.S. 1089, 123 S.Ct. 703, 154 L.Ed.2d 633 (2002). Ragbir never sought relief under § 2255.

Ragbir began serving his sentence in February 2004. While imprisoned, he consulted with a lawyer about seeking post-conviction relief but was told that nothing could be done. Ragbir’s supervised release began in May 2006 and concluded on May 22, 2009.

B. Immigration Related Proceedings

Upon completion of his prison sentence in May 2006, Ragbir was placed in immigration custody while the Department of Homeland Security ("DHS") commenced removal proceedings. It was during those proceedings that Ragbir learned that his stipulation to a loss of more than $10,000, rather than his convictions themselves, was what made him deportable. Ragbir’s immigration counsel, David Kim, recognized the significance of the loss stipulation and represented to the Immigration Judge ("IJ") that a criminal defense attorney would be hired to attempt to vacate the underlying convictions. Despite this representation, Ragbir did not pursue a collateral attack. On August 7, 2006, the IJ held that Ragbir’s convictions constituted aggravated felonies and ordered him removed from the United States.

On review, the Board of Immigration Appeals ("BIA") affirmed the IJ’s order. Ragbir sought review of the decision, and in February 2008, DHS placed Ragbir on supervised release pending resolution of his petition. The Second Circuit upheld the BIA’s decision in 2010, Ragbir v. Holder , 389 F. App'x 80 (2d Cir. 2010), and the Supreme Court denied certiorari. Ragbir v. Holder , 565 U.S. 816, 132 S.Ct. 95, 181 L.Ed.2d 24 (2011).

Later that year, Ragbir married an American citizen. Together, they applied for an immigrant visa based on their marriage and received approval in November 2011. The following month, DHS granted Ragbir a stay of removal. Ragbir filed a motion to reopen the proceedings before the BIA based on his having an immigrant visa and the Supreme Court’s decision in Skilling v. United States , 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (narrowing honest services fraud). On May 15, 2012, the BIA denied the motion, stating that the issues surrounding Ragbir’s conviction were properly the subject of the federal courts. Ragbir filed a petition for review which was unsuccessful. Ragbir v. Lynch , 640 F. App'x 105 (2d Cir. 2016).

DHS eventually elected not to renew its discretionary stay of removal, and on January 11, 2018, Ragbir was taken into immigration custody. Ragbir then challenged his detention under 28 U.S.C. § 2241 in the United States District Court for the Southern District of New York, which granted his habeas petition and ordered him released. Ragbir v. Sessions , No. 18-cv-236, 2018 WL 623557 (S.D.N.Y. Jan. 29, 2018). On March 23, 2018, the United States District Court for the District of New Jersey entered a stay of removal. The Second Circuit likewise stayed removal. See Ragbir v. Homan , 923 F.3d 53 (2d Cir. 2019).

C. Coram Nobis Proceedings

After the BIA denied Ragbir’s motion to reopen the proceedings in May 2012, he filed a petition seeking a writ of error coram nobis in the United States District Court for the District of New Jersey on November 30, 2012. In that petition, Ragbir asserted that his conviction should be overturned because jury instructions given at his trial were erroneous in light of later Supreme Court rulings— Skilling (2010) (narrowing honest-services fraud) and Global-Tech Appliances, Inc. v. SEB S.A. , 563 U.S. 754, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011) (clarifying willful blindness). He also claimed ineffective assistance of counsel based on Attorney Lee’s (1) failure to explain that the loss attributed to his conviction would have immigration consequences and (2) advice to forego a sentencing hearing. Ragbir and the government decided to work toward an amicable settlement. Aware of these efforts, the District Court administratively terminated the matter without prejudice on May 30, 2013.

The parties’ negotiations failed. That led Ragbir to file an amended coram nobis petition in February 2015. This amended petition included three new allegations: trial counsel was ineffective because she failed to (1) sufficiently investigate and negotiate the loss amount and (2) retain a linguistics expert to challenge the authenticity of Ragbir’s confession, and appellate counsel was ineffective because he (3) failed to assert that the willful blindness jury instruction was erroneous. Based on further discussions, the parties submitted a joint stipulation to voluntarily dismiss the action without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) to allow Ragbir to pursue a presidential pardon. The District Court granted the agreed-upon relief on March 3, 2016.

Like the settlement talks, Ragbir’s attempt to secure a pardon was unsuccessful. He renewed his coram nobis petition on February 22, 2017. After briefing concluded, the District Court held an evidentiary hearing on May 4, 2018 and denied coram nobis on January 25, 2019. Five days later, Ragbir filed this appeal. Ragbir asked the District Court to stay the IJ’s removal order pending the disposition of this appeal. The District Court denied the request, but it extended an earlier stay, thereby allowing Ragbir to make an emergency application to this Court. We denied the emergency stay application because Ragbir failed to show that he was likely to succeed on the merits. Nonetheless, the Second Circuit stay remains in effect. See Ragbir v. Homan , 923 F.3d 53.

On appeal, Ragbir asserts that the District Court erred in denying his petition for a writ of error coram nobis. He claims, inter alia, (1) ineffective assistance of trial counsel due to affirmative misadvice...