UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WISCONSIN
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`UNITED STATES OF AMERICA,
`Plaintiff,
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`v.
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`Case No. 03-CR-46
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`FAWZIYEH RAKI MASOUD,
`Defendant.
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`DECISION AND ORDER
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`Defendant Fawziyeh Raki Masoud petitions for a writ of error coram nobis, seeking to
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`avoid the deportation order issued based on her wire fraud conviction in this case. Defendant
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`argues that her lawyer provided ineffective assistance of counsel by failing to properly advise
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`her of the immigration consequences of pleading guilty to the charge. I held an evidentiary
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`hearing on the petition, which I now deny.
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`I. FACTS AND BACKGROUND
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`A.
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`The Underlying Case
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`On May 13, 2005, pursuant to an agreement with the government, defendant pleaded
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`guilty to wire fraud, contrary to 18 U.S.C. § 1343, arising out of her participation in a scheme
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`concocted by a man named Abdel Jebara to fraudulently redeem coupons. Jebara recruited
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`various individuals to collect and cut coupons from newspaper inserts. He and other
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`co-conspirators then enlisted more than 300 “stores” to fraudulently redeem the coupons,
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`which had not actually been presented by customers making a purchase. Due to the volume
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`of coupons redeemed in the United States, manufacturers rely on “clearinghouses” to sort them
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`and provide reimbursements. Assisted by an insider at one of the clearinghouses, who
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`approved the fraudulent reimbursement applications, Jebara bilked hundreds companies out
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`of more than $5,000,000. Defendant’s role in the scheme was to cut and weigh coupons,
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`which were then picked up by other scheme participants. She was paid a small amount per
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`pound.
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`The parties agreed to a loss amount of $120,000 for defendant under U.S.S.G. §
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`2B1.1(b) and a sentencing guideline range of 10-16 months’ imprisonment. Nevertheless, for
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`a variety of reasons, including her role in the offense, her lack of prior record, her
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`unsophisticated nature, and her serious health problems, the parties jointly recommended a
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`sentence of 3 years’ probation. On August 11, 2005, I sentenced defendant to the
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`recommended probationary term. Defendant took no appeal and successfully completed
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`probation.
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`B.
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`The Instant Motion
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`On July 20, 2011, defendant filed a motion to set aside her conviction, in which she
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`indicated that she had been ordered deported by an Immigration Judge based on her wire
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`fraud conviction, which qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(M).
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`She claimed that she would not have entered her plea had she known that she would be
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`deported. She noted that under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), a lawyer’s failure
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`to advise her client of the risk of deportation may constitute ineffective assistance of counsel
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`and argued that her defense lawyer, Jean Kies, failed to ensure that she understood that a
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`consequence of her plea would be removal. She accordingly asked the court to set aside the
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`conviction resulting from her May 13, 2005 guilty plea.
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`The original motion lacked a stated jurisdictional basis, but I noted that it could be
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`construed as seeking a writ of error coram nobis, see United States v. Orocio, 645 F.3d 630
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`(3d Cir. 2011) (considering a Padilla claim via coram nobis motion), and provided defendant
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`with time to supplement her submission. On August 4, 2011, defendant filed a supplemental
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`motion seeking coram nobis relief, and I ordered the government to respond by August 26. On
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`August 23, 2011, the Seventh Circuit held that Padilla announced a new rule of criminal
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`procedure inapplicable to cases on collateral review. Chaidez v. United States, 655 F.3d 684
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`(7th Cir. 2011), cert. granted, 132 S. Ct. 2101 (2012). I directed the government to address
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`Chaidez in its response and permitted defendant to file a reply by September 9 addressing the
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`issue.
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`The government filed its response on August 24, 2011, arguing that the petition should
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`be denied under Chaidez. In the alternative, the government argued that the petition failed on
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`the merits. The government attached to its response an affidavit from Attorney Kies averring
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`that she conferred with an immigration specialist then advised defendant through a bilingual
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`relative that defendant faced removal based on a plea to the charge.
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`Defendant filed a reply on September 7, arguing that Orocio (which allowed a collateral
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`attack) provided a better reading of Padilla than Chaidez. On September 9 and 14, 2011,
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`defendant filed additional supporting affidavits, including from the bilingual relative, Hasaan
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`Darwish, disputing Kies’s version, and from defendant’s immigration lawyer, Jonathan Nelson,
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`averring that Kies provided faulty advice. Defendant also filed a supplemental reply brief
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`arguing that Chaidez was distinguishable. I granted defendant’s motion for leave to
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`supplement the record with these materials, then permitted the government to file a sur-reply.
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`In a memorandum issued on January 5, 2012, I indicated that an evidentiary hearing
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`was needed to resolve the petition. I first noted that Chaidez could be distinguished as a case
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`where defense counsel provided no immigration advice, as opposed to the affirmative mis-
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`advice defendant alleged in this case. The Seventh Circuit held, prior to Padilla, that counsel
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`had no duty to advise a defendant of collateral matters like deportation. See, e.g., Santos v.
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`Kolb, 880 F.2d 941, 944 (7th Cir. 1989). However, it was an open issue in this circuit as to
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`whether the provision of misinformation could support an ineffective assistance claim. See,
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`e.g., Acevedo-Carmona v. Walter, 170 F. Supp. 2d 820, 826 n.1 (N.D. Ill. 2001). Other circuits
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`did distinguish, pre-Padilla, between mere silence and affirmative mis-advice about immigration
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`matters, allowing ineffective assistance claims based on the latter but not the former, see, e.g.,
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`United States v. Kwan, 407 F.3d 1005, 1015-1017 (9th Cir. 2005); United States v. Couto, 311
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`F.3d 179, 188 (2d Cir. 2002); Downs-Morgan v. United States, 765 F.2d 1534, 1540-1541 (11th
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`Cir. 1985), and Justice Alito, in his concurring opinion in Padilla, suggested that this distinction
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`represented the prevailing view, 130 S. Ct. at 1493-94. I therefore declined to reject the
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`petition under Chaidez, as the government requested. I also noted that the parties disputed
`1
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`what Kies told defendant and when, and whether defendant would have rejected the plea
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`agreement and gone to trial had she been “properly” advised. I therefore held an evidentiary
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`hearing on March 21, 2012, at which Kies, Darwish, defendant, and Nelson testified.
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`For the sake of clarity, I note that in Padilla defense counsel provided mis-advice, telling
`1
`his client that he did not have to worry about his immigration status since he had been in the
`country so long, when in fact the crime made deportation virtually mandatory. 130 S. Ct. at
`1478. However, the Court specifically declined to limit the rule to affirmative mis-advice, as the
`Solicitor General (and Justices Alito and Roberts) urged. Id. at 1484-85, 1492-93. Thus,
`Padilla applies both to failure to advise and mis-advice about immigration consequences. I
`have drawn a distinction between the two in this case because Chaidez declared Padilla to
`announce a new rule in the context of a failure to advise case. Given the weight of pre-Padilla
`case-law, I have assumed that a mis-advice claim does not rely on a new rule. I further note
`that on April 30, 2012, the Supreme Court granted certiorari in Chaidez. However, because
`I have assumed that claims of the sort defendant raises here may be raised collaterally, there
`is no need to wait for the Court’s decision.
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`C.
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`Hearing Testimony
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`1.
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`Jean Kies
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`Attorney Kies testified that she was appointed to represent defendant in this case
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`through Federal Defender Services. Kies explained that the case involved a coupon fraud
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`scheme in which defendant and her friend, Anam Manasrah, were accused of cutting the
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`coupons at Manasrah’s home. (Evid. Hr’g Tr. [R. 501] at 4.) Kies indicated that defendant
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`spoke Arabic, which required her to use an interpreter. Defendant also had an extremely
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`limited education and had not assimilated to the American lifestyle. (Id. at 5.) Kies testified
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`that she communicated with defendant through a family member, Hasaan Darwish, as well as
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`using a court-appointed interpreter to review the pre-sentence report and plea agreement. (Id.
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`at 5-6.) Kies indicated that Darwish did not, to her knowledge, have training as an interpreter,
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`although he did speak good English and, due to the cultural concerns, Kies felt that defendant
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`was comfortable in having information relayed through Darwish. Darwish and defendant both
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`lived in New York City at the time. (Id. at 6.)
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`Kies testified that when she first met with defendant (around the time of her initial
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`appearance in December 2004) she became aware that defendant was not a U.S. citizen. (Id.
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`at 7.) Kies believed that defendant had a green card, while her husband was a citizen. (Id. at
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`7.) Kies testified that she met with defendant on May 12, 2005, at the offices of Federal
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`Defender Services to review the plea agreement, using a court-appointed interpreter. (Id. at
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`8.) Defendant entered her plea the following day, May 13. (Id. at 8.)
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`Kies testified that on March 14, 2005, she sent defendant a letter asking whether
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`defendant was interested in resolving the case short of trial. (Id. at 8-9; Ex. 1000.) Kies
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`testified that prior to the March 14, 2005 letter, she had teleconferences with Darwish on a
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`number of occasions. (Tr. at 10.) After reviewing her notes, Kies indicated that she
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`communicated with Darwish by phone on December 13, 2004, December 17, 2004, December
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`20, 2004, and February 16, 2005; she also met with defendant on December 16 and 17, 2004.
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`(Id. at 11.) Kies testified that when she wanted to communicate with defendant by phone she
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`always called Darwish. To her knowledge, Darwish passed along the information; defendant
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`was not present during the calls, with Darwish simultaneously interpreting. (Id. at 12.)
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`Kies testified that she included with the March 14, 2005 letter a copy of the proposed
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`plea agreement. (Id. at 12; Ex. 1002.) Kies indicated that she had several concerns in
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`negotiating the plea. First, she noted that it would have been devastating for defendant to go
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`to prison; the plea agreement recommended a non-guideline sentence of probation. Second,
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`defendant’s finances were such that she did not have the wherewithal to pay restitution; the
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`plea agreement did not require her to make restitution. Third, Kies testified that it was in
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`defendant’s best interest to negotiate a deal given defendant’s involvement in the fraud. (Tr.
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`at 13.)
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`Kies testified that she sent defendant a second letter dated March 21, 2005. (Id. at 13;
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`Ex. 1001.) In that letter, Kies followed up on a conversation she had with Darwish on or about
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`March 18, 2005, in which he raised a concern about whether immigration would pull
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`defendant’s green card if she entered a plea. (Tr. at 13-14.) Kies testified that she also
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`discussed the immigration issue with Attorney Robin Shellow, who represented Manasrah, on
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`or about March 18, 2005. (Id. at 15.) This was the first time the immigration issue had been
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`raised as a big concern for defendant. Kies testified that Darwish seemed to believe that
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`Manasrah had a deal with immigration that she would not be deported, which was worked out
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`in the context of the plea agreement she was going to enter into with the government in this
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`case. (Id. at 16-17.) Kies believed that Darwish wanted for defendant the same kind of deal
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`Manasrah got, although to Kies’s understanding Manasrah had no such deal with the
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`government. (Id. at 17.) It was in response to this phone call that Kies contacted Attorney
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`Shellow. Kies’s notes indicated that Shellow told her that Manasrah would not be able to leave
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`and re-enter the United States after a fraud conviction because it had been less than five years
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`since the time that she had originally entered the United States. Kies then had some
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`discussion with Shellow about possibly talking to the AUSA about voluntarily dismissing the
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`case and asking their clients to leave the country voluntarily. Kies’s notes further indicated that
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`they approached the government regarding the immigration issues but were told that the U.S.
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`Attorney’s office could not bind the INS into any agreement related to deportation. Kies
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`testified that she called Darwish and told him this information to relay to defendant the same
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`day. (Id. at 18.)
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`Kies testified that she did not recall receiving any other information regarding deportation
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`consequences aside from her conversation with Attorney Shellow prior to sending the March
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`21, 2005 letter. (Id. at 20.) In that letter, Kies indicated that “for persons with a green card to
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`avoid deportation, the crime must have occurred more than five years since his or her last entry
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`into the United States to prevent deportation.” (Ex. 1001 at 1.) In the context of the present
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`case, this information was inaccurate. Kies also stated in the letter that, if convicted, defendant
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`would “not be allowed to leave the United States and then re-enter the country.” (Ex. 1001 at
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`1.) This statement was correct.
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`Kies subsequently contact several immigration specialists to obtain further information.
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`She first contacted Attorney E.J. Hunt, an experienced federal criminal practitioner, seeking a
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`referral. She then contacted Attorney Tom Hochstatter, who provided immigration law advice.
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`Hochstatter then referred Kies to Attorney Erich Straub, an immigration lawyer who in the past
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`practiced federal criminal defense. Kies left a message for Straub, he got back to her, and they
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`talked about the case. (Id. at 20.) Later, Kies sent defendant’s proposed plea agreement to
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`Straub for his review to make sure she was giving proper immigration advice, as she did not
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`practice immigration law. (Id. at 20-21.)
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`Kies admitted that her March 21, 2005 letter implied that defendant could avoid
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`deportation if more than five years had elapsed between the time she last entered the United
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`States and the date of the alleged fraud. (Id. at 21.) The letter asked defendant to provide the
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`last date that she left and re-entered the United States. The letter also told defendant that if
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`she left the United States she would be barred from re-entry as a result of conviction. (Id. at
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`21.) The letter further indicated that Kies had approached the AUSA about immigration
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`consequences for defendant. (Id. at 21.) Kies testified that she asked the prosecutor to
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`specifically put a provision in the plea agreement stating that defendant would not be deported
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`based on her plea, but he replied that he could not bind the INS and therefore could not put
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`that in the plea agreement. (Id. at 21-22.) The letter concluded that immigration issues were
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`carefully considered in Manasrah’s case, and that the AUSA would also work with defendant
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`if she accepted the plea agreement. (Id. at 22.) Kies testified that one could from this
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`language draw an inference that the government had worked an immigration deal with
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`Manasrah, but she noted that earlier in the letter she clearly stated that the AUSA explained
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`that he could not bind the INS. (Id. at 23.) Kies testified that the AUSA told her only that he
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`would work with defendant to get the best result possible, which referred to a probationary
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`sentence. Kies indicated that if defendant and Manasrah were sentenced to prison, with their
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`immigration status, the INS would immediately put a hold on them, and they would be deported
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`after they served their sentences. (Id. at 23.)
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`Kies testified that she sent no further written correspondence to defendant between
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`March 21, 2005, and May 13, 2005, the date defendant entered her plea. (Id. at 24-25.) Kies
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`testified that Darwish called her on March 23, 2005, indicating that defendant had received the
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`letters and was considering the plea agreement. (Id. at 25.)
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`Kies testified that she left a message for Attorney Straub on April 22, 2005, and they
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`were able to speak on April 26, 2005. (Id. at 26.) Straub explained that fraud is an aggravated
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`felony, and that deportation was likely. Kies asked Straub to review the plea agreement, which
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`he did, advising Kies in a May 5, 2005 e-mail that because the case involved fraud of greater
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`than $10,000 defendant would have no defense to deportation if she entered a plea. (Id. at 26-
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`27, 29; Ex. 1003.) After she received the e-mail, Kies called Darwish and explained the content
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`of the e-mail to him; he was to transmit that information to defendant. (Tr. at 27-28, 29.) Kies
`2
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`produced a note from her file confirming the call. (Tr. at 30.) The note stated: “Call Hassan.
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`5/5/5. Tell Fawziyeh re: Straub’s e-mail.” (Ex. 1008.) Kies testified that she did not forward
`3
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`a copy of Straub’s e-mail to defendant, noting that defendant was coming to Milwaukee within
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`the next week. (Tr. at 31.) She stated that she had the e-mail available during her review of
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`Kies also learned from Attorney Hunt on April 26, 2005, that the entry of a plea could
`2
`lead to defendant’s removal from the country, as fraud over $10,000 is a deportable offense.
`Kies conveyed that information the same day to Darwish, at the same time she conveyed
`Straub’s initial advice. (Id. at 28.) On May 5, 2005, Kies also spoke to Attorney Harold Block,
`and he stated that convictions for fraud exceeding $10,000 will get you deported. (Id. at 28-
`29.) However, Kies did not pass the information from Block along to Darwish. (Id. at 29.)
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`Kies explained that this note referred to something she did, not something she intended
`3
`or ought to do. (Tr. at 46.)
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`the plea agreement with defendant. (Id. at 31.)
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`Kies testified that the evidence against defendant was strong. Although the government
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`did not have a confession from defendant, defendant was present when a search warrant was
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`executed at Manasrah’s apartment. In the apartment, the government found lots of coupons,
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`scissors, weighing scales, and uncut inserts from newspapers containing coupons. (Id. at 31-
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`32.) The government also recorded phone conversations between co-actors. In one particular
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`call between Jebara (the head of the scheme) and defendant, Jebara indicated that a co-actor
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`named Medre would make delivery of coupon inserts to the apartment, and defendant said
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`“something to the effect of that was good; the coupons this past week were gold.” (Id. at 32.)
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`Kies explained that there were other phone conversations where they were arranging payment
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`and arranging exchange of the coupon materials. Kies recalled another conversation where
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`Jebara referred to defendant as “the Haja.” (Id.) Kies explained that these conversations
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`would have been devastating to defendant had she gone to trial because they showed that she
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`had taken overt acts in furtherance of the conspiracy. (Id. at 32-33.) Kies also knew that other
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`co-actors were lined up to testify against defendant if she went to trial. (Id. at 33.)
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`Kies acknowledged that the phone call between Jebara and defendant was placed to
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`Manasrah’s apartment, the headquarters of the cutting portion of the scheme, and the other
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`speaker was identified as defendant because Jebara referred to her as “the Haja.” (Id. at 33-
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`34.) Kies also acknowledged that some of the investigative reports referred to Manasrah as
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`the Haja. (Id. at 34-37; Ex. 1004, 1005, 1006.) However, Jebara explained in a later interview
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`that he did not initially identify defendant as the Haja because she had not at that point been
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`arrested or charged. (Id. at 37-38; Ex. 1007.)
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`Kies testified that she reviewed the plea agreement with defendant at the Federal
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`Defender’s office on May 12, 2005, using a court interpreter. (Tr. at 41-42.) Kies testified that,
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`as is her typical practice, she went over the agreement paragraph by paragraph. After reading
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`each paragraph, she stopped to discuss the contents and answer any questions. (Id. at 42.)
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`In this case, she discussed deportation and immigration consequences with defendant in
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`conjunction with their review of ¶ 34, which indicates that “nothing contained in this agreement
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`is meant to limit the rights and the authority of the United States of America or any other state
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`or local government agency to take civil, administrative, or regulatory action against the
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`defendant.” (Id. at 43; Ex. 1002 at 20-21, ¶ 34.) Kies testified that at this point she talked to
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`defendant about the deportation issue, particularly referencing the May 5, 2005 e-mail from
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`Straub, and explaining that nothing in the plea agreement limited the right of immigration
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`authorities to take action against her. (Tr. at 43.) Kies also explained that Straub, the
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`immigration lawyer, looked at the plea agreement and concluded that if defendant entered a
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`plea she would have no defense to deportation. (Id. at 44.) Kies testified that she also read
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`Straub’s e-mail. (Id. at 45.) Kies did not recall telling defendant that the only way that she
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`could avoid deportation for sure would be to go to trial and be acquitted, although she did recall
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`talking to defendant about the strength of the evidence against her and the unlikelihood that
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`she would be acquitted in this case. (Id. at 45.) Kies explained that although she had
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`previously discussed the issue of immigration consequences, by the time she sat down with
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`defendant face to face to review the plea agreement Straub’s May 5, 2005, e-mail controlled
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`what she said in terms of immigration consequences. (Id. at 46.) Kies further testified that the
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`interpreter told her that defendant understood the import of Straub’s e-mail. (Id. at 50.)
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`Kies recalled that there was initially some confusion in this case as to who was present
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`in the Manhattan apartment cutting coupons. (Id. at 47-48.) However, Kies testified that she
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`satisfied herself that defendant was culpable as a scheme member and not just in the wrong
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`place at the wrong time based on the things that defendant told her: specifically, defendant told
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`Kies that she was cutting coupons. (Id. at 48.) Kies indicated that she had no concerns about
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`whether defendant was actually involved in this offense. (Id. at 49.)
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`2.
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`Hasaan Darwish
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`Hasaan Darwish testified that he is the first cousin of defendant’s husband, and that
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`after defendant was charged in this case he acted as an interpreter, passing along information.
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`(Id. at 51.) He indicated that he speaks fluent Arabic and “fair” English. (Id. at 51-52.) He
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`testified that he has no formal training as an interpreter. (Id. at 52.)
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`Darwish testified that he communicated with Attorney Kies from New York, discussing
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`issues in defendant’s case, but defendant was not present during these conversations and he
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`did not simultaneously interpret them. (Id. at 52.) He indicated that he passed on to defendant
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`everything Kies told him to the best of his ability and memory. (Id. at 52-53.) Kies also sent
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`defendant letters, which he reviewed with defendant. (Id. at 53.) Darwish testified that after
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`they received the March 14, 2005 letter transmitting the plea agreement, he called Kies on or
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`about March 18, 2005, raising the issue of defendant’s immigration status and stating that if
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`the agreement would not cause her to be deported she may go for it. (Id. at 54.) Darwish
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`testified that he was familiar with what had happened in Manasrah’s case because he also
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`acted as an interpreter for her. (Id. at 55.)
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`Darwish testified that when he raised the issue of deportation, Kies stated that she
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`would try to work something out. Kies then sent the March 21, 2005, letter. (Id. at 55; Ex.
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`1001.) Darwish testified that he reviewed the letter with defendant, which he understood to say
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`defendant could avoid deportation. (Id. at 56-57.) He further testified that it was his
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`understanding that because Manasrah was not being deported, defendant would get similar
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`treatment. (Id. at 58-59.) He testified that Manasrah had never faced deportation, which he
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`understood to be because she had obtained some sort of a deal with the government. (Id. at
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`59-60.) Darwish testified that they received no further letters from Kies, and he did not recall
`4
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`any additional telephone calls with Kies. (Id. at 60.) He denied receiving the call from Kies
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`where she told him that because the fraud was an aggravated felony defendant was likely to
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`be deported and had no defense to deportation. (Id. at 60.) He also denied passing along to
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`defendant any information that she would have no defense to deportation if she pled guilty.
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`(Id. at 61.)
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`Darwish testified that deportation would be hard on his cousin (defendant’s husband)
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`because of his health problems. (Id. at 63.) He stated that the entire family was anxious that
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`defendant not be deported. (Id.)
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`3.
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`Defendant
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`The court obtained an Arabic interpreter to assist defendant at the hearing, and she
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`testified that she speaks no English. Nevertheless, at the hearing she began answering
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`questions in English and without using the interpreter to translate the question. (Id. at 64-66.)
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`Her lawyer eventually asked that she “wait until the interpreter interprets the question before
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`you answer, please.” Defendant responded, in English, “I’m sorry. I’m sorry.” (Id. at 66.) 5
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`Manasrah’s plea agreement contains no provision precluding deportation and is in most
`4
`respects the same as defendant’s. (R. 499-3.) To the extent that the two agreements differ,
`defendant’s is more favorable: the government affirmatively recommended probation for
`defendant, a guideline sentence for Manasrah (R. 499-3 at 16, ¶ 25); and no restitution for
`defendant, while Manasrah was ordered to pay $120,000 (see R. 499-3 at 17, ¶ 30; R. 305).
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`Nevertheless, at various points she continued to answer in English. (Id. at 67, 68.) At
`5
`the end of her testimony, the interpreter stated: “Your Honor, she mutters sometimes, memory
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`Defendant testified that she was born in Jordan on April 10, 1954. (Id. at 64-65.) She
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`came to the United States in 1988 and lived in New York. (Id. at 65.) She testified that she
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`could not read or write in Arabic, completed no schooling, and never had a job. (Id. at 66.)
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`She lived with her children, who worked, and her husband. She testified that she had five
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`children, all of whom lived in the United States. (Id.) She stated that she had no relatives in
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`Jordan. (Id.) Defendant testified that she suffered from various medical problems in 2005
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`when she pled guilty, including hypertension, diabetes, stroke, and rheumatism, as well as
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`mental issues for which she received treatment from a psychiatrist. (Id. at 67.)
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`Defendant testified that on the day the police raided Manasrah’s house, Manasrah called
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`her and asked her to come over because she was sick. Defendant went to Manasrah’s house
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`and saw that the police were there. (Id. at 67.) She stated that she entered the house, then
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`took Manasrah’s children, who stayed with her until Manasrah was released. (Id. at 68.)
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`Defendant was not arrested at that time, but about two years later. (Id. at 69.) Defendant
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`testified that after she was charged and came to Milwaukee for court in 2004, Darwish relayed
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`information about her case. (Id.) Defendant returned to Milwaukee in May of 2005, having
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`decided that she was going to plead guilty. (Id.)
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`Defense counsel asked defendant what would have been worse for her, paying
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`restitution or being deported, and defendant responded: “Money -- Money, I don't have any
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`resource of income to bring or bring money.” (Id. at 70.) However, after further questioning,
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`she stated, “Even if they had me thrown in the sea, that would be better than being deported.”
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`things. As I can do it, she sometimes speaks English and then switch it to Arabic. I have a
`hard time, and I try to explain I need everything in Arabic that would be able to help you.” (Id.
`at 74.)
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`(Id.) She stated, “I don't have anybody overseas. I’m here with my kids.” (Id.) She claimed
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`that she would have been willing to risk going to jail if that was the only way to avoid being
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`deported. (Id.) She stated that when she entered her guilty plea in this case, she did not think
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`she could be deported, and no one told her that she would get deported. (Id. at 70-71.) She
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`stated that she would, if deported, be living in Israel in Ramallah, with no one to help her and
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`no ability to obtain her medications. (Id. at 71.) However, on cross-examination defendant
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`admitted that one of her daughters lived in Ramallah. (Id. at 72.) Although her testimony was
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`somewhat confused, she also seemed to suggest that she was not under the care of a
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`psychiatrist in 2005, and that she used to get medication from Ramallah. (Id. at 73.)
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`4.
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`Jonathan Nelson
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`Finally, Jonathan Nelson, defendant’s immigration lawyer, testified that defendant was
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`under an order of removal issued by an Immigration Judge and affirmed by the Board of
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`Immigration Appeals; the final order of removal was pending on a petition for review to the
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`United States Court of Appeals for the Second Circuit. (Id. at 74-75.) Defendant had also
`6
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`filed, through counsel, a motion to reopen before the Board of Immigration Appeals, which the
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`Board denied; defendant, acting pro se, appealed that denial to the Court of Appeals, which
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`was also pending. (Id. at 75.) Nelson testified that defendant’s current immigration situation
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`was a direct result of her conviction in this case. (Id.)
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`Nelson commented on the information contained in Kies’s March 21, 2005 letter
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`regarding whether defendant had entered the country within five years of her commission of
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`the crime. (Id. at 76.) He indicated that this did not relate to defendant’s situation but rather
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`After the hearing in this case, the Second Circuit denied defendant’s petition for review.
`6
`Masoud v. Holder, No. 11-2805, 2012 WL 2752898 (2d Cir. July 10, 2012).
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`to crimes involving morale turpitude, which are subject to a five-year safe harbor provision;
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`defendant’s crime was (also) an aggravated felony, making her deportable no matter when the
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`offense was committed. (Id. at 77.) He therefore stated that the information in the letter about
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`the five-year period was not accurate. (Id.) He testified that the statement in the letter about
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`defendant leaving the country and not being able to return was on its face correct, but that it
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`had no application to the question of whether her offense rendered her deportable while she
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`remained in the United States. (Id. at 77-78.) He also stated that defendant would not be able
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`to seek cancellation of removal based on the crime of conviction, an aggravated felony. (Id.
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`at 78.) Nelson further testified that he had reviewed both defendant’s and Manasrah’s plea
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`agreements, and neither insulated the subject from deportation. (Id. at 78-79.) Finally,
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`assuming that Kies did discuss Straub’s May 5, 2005 e-mail with defendant during the May 12,
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`2005 meeting, Nelson testified that in his opinion Kies should have made clear that her
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`previous immigration advice was incorrect. (Id. at 80.) Nelson agreed that the immigration
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`advice in Straub’s e-mail was accurate. (Id. at 82.)
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`II. DISCU