A (De)Natural Conclusion

The United States Court of Appeals for the Second Circuit vacated the denial of a habeas corpus petition and remanded for further proceedings

In these en banc proceedings, we consider whether a naturalized United States citizen has a Sixth Amendment right to be advised by counsel that he may be denaturalized and deported as a result of his entry of a guilty plea. In its 2010 decision in Padilla v. Kentucky, 559 U.S. 356, the Supreme Court ruled that the Sixth Amendment requires criminal defense counsel to advise her client of a risk of deportation associated with such a plea. Today we hold that the Sixth Amendment entitles a naturalized U.S. citizen facing the risk of deportation following denaturalization to no less protection than a noncitizen facing the risk of deportation. Deportation following denaturalization proceedings is a severe, adverse immigration consequence that is covered by Padilla. To provide constitutionally effective advice, counsel must address the risk of this consequence with her naturalized citizen client before he decides to enter a guilty plea.

Like most courts, ours has generally drawn a distinction between “direct” and “collateral” consequences of a conviction to provide a useful boundary between what the Sixth Amendment requires counsel to address (the possible sentence of incarceration, for example, is a “direct” consequence) and what counsel need not address (the loss of an occupational license, on the other hand, is likely “collateral”). In the past, we have treated adverse immigration consequences including deportation as collateral, being beyond both the power of the sentencing court itself to impose and perhaps beyond a criminal defense counsel’s presumptive area of expertise. See Michel v. United States, 507 F.2d 461, 465–66 (2d Cir. 1974).

In Padilla, however, the Supreme Court disavowed that binary framework as a tool for assessing counsel’s obligations when permanent removal from the country was a possible consequence. That immigration result was too severe, its imposition too closely connected with the criminal process, and its effect upon families too drastic, the Court reasoned, to be lumped categorically together with other “collateral” consequences of a guilty plea. Accordingly, the Court determined that counsel has a constitutional duty to advise her client on this subject.

Accepting this premise in Padilla’s case, and then applying the principles established in Strickland v. Washington, 466 U.S. 668 (1984), to govern ineffective assistance claims, the Court found that counsel fell below objective standards of competence by neglecting to alert Padilla that his plea agreement with the government would open the door to his removal from the country. That risk, the Court said, could not constitutionally be ignored by counsel. Nor was affirmative misadvice necessary to raise the constitutional concern, it stressed: silence on the subject breached the Sixth Amendment duty to advise. The Court explained that the prospect of removal from the country may be more important to a defendant than time served behind bars, and counsel bears a duty at least to call to her client’s attention the risk of such serious adverse immigration consequences. 

In the government’s 2023 fiscal year, 878,500 persons became U.S. citizens. In the decade from 2012 to 2023, the United States naturalized more than 7.7 million persons. Those individuals earned that cherished status and swore allegiance to the Constitution after a lengthy, multi-layered process that calls for determination and commitment. More will do so this year. If it is later determined that a naturalized citizen obtained his citizenship by fraud or false statements, the law provides a mechanism by which that citizenship may be revoked. See 8 U.S.C. § 1451. But the Constitution has long been understood to protect naturalized citizens—even those who run afoul of our criminal laws—just as it does U.S.-born citizens, affording each the effective advice of counsel when they are caught up in the criminal process. As the Court long ago observed in Schneider v. Rusk, aside from the Constitution’s requirement that only natural-born citizens are eligible to be President, a naturalized citizen “possess[es] all the rights of a native citizen, and stand[s], in the view of the constitution, on the footing of a native.” 377 U.S. 163, 166 (1964) (internal quotation marks omitted).

We now reaffirm that understanding and decide that, applying Padilla and its clarifying companion case, Chaidez v. United States, 568 U.S. 342 (2013), criminal defense attorneys have a Sixth Amendment obligation to inquire into and advise a naturalized citizen client of any risk of deportation following denaturalization proceedings that accompany the client’s guilty plea, just as they do for a deportation risk facing a noncitizen client. If the plea carries such a risk and counsel has failed to address it, then the two-pronged Strickland test applies: we ask whether counsel’s performance fell below an objective standard of reasonableness at the time, and whether the client has shown that he was prejudiced by counsel’s deficient performance. The outcome of a Sixth Amendment challenge to the conviction will hinge on the answers to those questions.

Defendant

Petitioner-Appellant Abderrahmane Farhane came to the United States from Morocco almost thirty years ago, in 1995. He was naturalized in 2002. He has six children, two of whom were naturalized through him and two of whom are U.S. citizens through their birth here. In 2006, Farhane pleaded guilty on advice of counsel to serious crimes charged in the Southern District of New York. He served more than eleven years in federal prison as a result.

Within a year of his release from prison, however, the government began proceedings to denaturalize him based on conduct admitted to in his plea agreement— proceedings acknowledged to be a precursor to deportation. Farhane then brought a challenge by motion for habeas relief under 28 U.S.C. § 2255. He asserted that, contrary to his Sixth Amendment rights, his counsel never advised him of the risk of denaturalization and deportation, and that he would not have agreed to enter the plea had he known that he might be banished from this country and separated from his family as a result. The District Court denied his motion. On appeal, a divided prior panel affirmed the denial.

On review, we VACATE the decision of the prior panel Majority; VACATE the judgment of the District Court denying habeas relief to Farhane; and REMAND the case to allow the District Court to address the Strickland ineffective assistance questions in the first instance, in the context of the Sixth Amendment understandings set forth here.

Lots of thoughts and disagreement on the subject

CARNEY, J., filed the majority opinion in which WESLEY, LEE, ROBINSON, PÉREZ, NATHAN, MERRIAM, and KAHN, JJ., joined.

WESLEY, J., filed a concurring opinion in which LEE, ROBINSON, NATHAN, and MERRIAM, JJ., joined.

PÉREZ, J., filed a concurring opinion in which LEE, ROBINSON, NATHAN, and MERRIAM, JJ., joined.

WALKER, J., filed a dissenting opinion in which SULLIVAN, PARK, and MENASHI, JJ., joined in full, and NARDINI, J., joined as to Part I.

PARK, J., filed a dissenting opinion in which SULLIVAN, NARDINI, and MENASHI, JJ., joined.

NARDINI, J., filed a dissenting opinion.

(Mike Frisch)