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

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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).

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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

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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

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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.

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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

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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.

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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.

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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

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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

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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.

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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