NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-17244 Plaintiff-Appellee, D.C. Nos. 2:19-cv-00597-GEB 2:14-cr-00169-GEB- v. DB-3 HARJIT JOHAL, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Argued and Submitted March 1, 2021 San Francisco, California Before: WARDLAW and BERZON, Circuit Judges, and CHEN,** District Judge. Harjit Johal, a legal permanent resident, appeals the district court’s denial of her 28 U.S.C. § 2255 motion to vacate her conviction. We granted a certificate of appealability with respect to the following issue: whether defense counsel rendered ineffective assistance by failing to accurately advise Johal about adverse * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. immigration consequences. For the reasons that follow, we vacate the conviction and remand to the district court. To vacate her conviction on the basis of ineffective assistance of counsel, Johal must show (1) that defense counsel’s representation “fell below an objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “A ‘reasonable probability’ is a standard of proof . . . ‘somewhat lower’ than a preponderance of the evidence.” United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015) (quoting Strickland, 466 U.S. at 694)). “[T]he performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact,” Strickland, 466 U.S. at 698, and so are reviewed de novo, United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986) (citing Strickland, 466 U.S. at 698). 1. On the current record, defense counsel’s performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. On more than one occasion, defense counsel informed Johal that “should a jury find her guilty . . . she would be deportable,” when in fact she could have avoided removal despite being convicted by obtaining a sentence of imprisonment of less than one year. Johal was charged with making a false declaration to a federal grand jury, in 2 violation of 18 U.S.C. § 1623. While “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable,” 8 U.S.C. § 1227(a)(2)(A)(iii), “[t]he term ‘aggravated felony’ means . . . an offense relating to . . . perjury . . . for which the term of imprisonment is at least one year.” Id. at § 1101(a)(43)(S) (emphasis added). Section 1623 carries a potential sentence of imprisonment of up to five years. But the statutory definition of “term of imprisonment” for purposes of an aggravated felony is deemed to include “the period of incarceration . . …
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