
    UNITED STATES of America, Plaintiff-Appellee, v. HYUN JU LEE, Defendant-Appellant.
    No. 12-35170.
    United States Court of Appeals, Ninth Circuit.
    
      Submitted Feb. 5, 2014
    
    Filed Feb. 13, 2014.
    Russell E. Smoot, Assistant U.S., USSP-Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee.
    Jeffry Keith Finer, Senior Litigating, Spokane, WA, for Defendant-Appellant.
    Before: FISHER, GOULD and CHRISTEN, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Hyun Ju Lee appeals the district court’s order denying her petition for a writ of coram nobis. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

Lee concedes that she is not entitled to relief under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), because Padilla does not apply retroactively to her case. See Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013). She contends, however, that she is entitled to relief under United States v. Kwan, 407 F.3d 1005 (9th Cir.2005), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The government has raised no procedural objections to Lee’s reliance on Kwan.

To obtain relief under Kwan, Lee must show: (1) that “counsel has not merely failed to inform, but has effectively misled, his client about the immigration consequences of a conviction,” id. at 1015; and (2) “ ‘there is a reasonable probability that, but for counsel’s errors, [s]he would not have pleaded guilty and would have insisted on going to trial,’ ” Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir.2010) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). The district court found the second of these requirements satisfied here, finding that “Ms. Lee would not have accepted the plea agreement that was offered by the government had she clearly understood a plea of guilty would result in her removal from the United States.” As this finding is not clearly erroneous, we sustain it on appeal. See Leavitt v. Arave, 646 F.3d 605, 608 (9th Cir.2011). Because the court was focused on the Padilla standard rather than the Kwan standard, however, the court made no finding as to whether Lee satisfied the first requirement. Accordingly, we vacate the district court’s order denying the writ and remand for the district court to address whether Lee can satisfy the deficient performance prong under Kwan. We leave it to the district court’s discretion whether to make this finding on the existing record or to consider additional evidence.

Each party shall bear its own costs on appeal.

VACATED AND REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
     