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.
2

(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

______
3

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 
4

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).
5

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).
6

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 
7

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 
8

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. 
9

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
10

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-immigrationstatus 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. 
11

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.
12

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 nearunanimous body of lower court authority.” Before Rehaif,

“every single Court of Appeals to address the question” had 
13

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 
14

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 nearunanimous 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 
15

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-ofimmigration-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 
16

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 
17

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 
18

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. 
19

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.