Case: 20-11168 Document: 00516380232 Page: 1 Date Filed: 07/01/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 1, 2022 No. 20-11168 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Shabbar Rafiq, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CV-350 Before Smith, Wiener, and Southwick, Circuit Judges. Leslie H. Southwick, Circuit Judge:* Shabbar Rafiq, federal prisoner # 54757-177, pled guilty, without the benefit of a plea agreement, to conspiracy to distribute a controlled substance and a controlled substance analogue in violation of 21 U.S.C. § 846. After exhausting his direct appeal, Rafiq petitioned for a writ of habeas corpus, which was denied. We granted a Certificate of Appealability (“COA”) to * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-11168 Document: 00516380232 Page: 2 Date Filed: 07/01/2022 No. 20-11168 Rafiq with respect to his claim that his counsel was ineffective for failing to advise him of the removal consequence of his guilty plea. Concluding that Rafiq was not prejudiced by any potential error by his counsel, we AFFIRM. FACTUAL AND PROCEDURAL BACKGROUND Shabbar Rafiq moved to the United States in 1999. On December 20, 2016, he pled guilty to one count of conspiracy to distribute a controlled substance and a controlled substance analogue, in violation of 21 U.S.C. § 846. During rearraignment, the district court asked Rafiq if he was a United States citizen, and he replied that he was. The district court asked another codefendant if he was a United States citizen and when that codefendant replied in the negative, the district court advised him that his conviction could result in removal and that removal could be mandatory or certain. The presentence report (“PSR”), however, indicated that Rafiq was a legal permanent resident and a citizen of Pakistan. It advised that he was removable pursuant to 8 U.S.C. § 1227 because he was an alien and citizen of Pakistan who had been convicted of a drug trafficking offense. The PSR also stated that, during the course of an investigation by the Drug Enforcement Administration (“DEA”), it was learned via Immigration and Customs En- forcement (“ICE”) officials that Rafiq’s marriage to a United States citizen was fraudulent. Rafiq’s written objections to the PSR stated, among other things, that he was a naturalized United States citizen and that his marriage was not fraudulent. In its response to his objections, the Government stated that, “accord- ing to ICE, a final ruling on the defendant’s immigration status ha[d] not been made because of a finding that his marriage is fraudulent.” The probation officer added that ICE had verified that Rafiq had never been naturalized as a United States citizen and that it had ruled his marriage fraudulent. The probation officer also stated that Rafiq’s objection to his …
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