In United States v. Farhane, No. 20-1666 (2d Cir. Oct. 31, 2024), the en banc Second Circuit (Carney, joined by Wesley, Lee, Robinson, Perez, Nathan, Merriam, and Kahn) held that “a naturalized U.S. citizen” charged with a crime “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.” Slip op. 13. Consequently, “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.” Slip op. 6.
As discussed in the practice points below, just as with noncitizen clients, Farhane requires defense counsel representing naturalized U.S. citizen clients to inquire into the client’s status and advise about risks to that status stemming from the plea.
The Case
Farhane, a native and citizen of Morocco, immigrated to the U.S. in 1995. In 2002, in the course of applying to become a naturalized U.S. citizen, he had an interview with an INS officer in which he said, under oath, that he had never “knowingly committed any crime for which [he had] not been arrested.” Later that year, Farhane naturalized. In 2006, he pleaded guilty in the SDNY to one count of conspiracy to commit money laundering, 18 U.S.C. § 371; and one count of making materially false statements involving international terrorism, 18 U.S.C. § 1001(a)(2). In his guilty plea colloquy, Farhane admitted that in 2001―prior to his naturalization interview―he had agreed with others to transfer money for mujahideen in Afghanistan and Chechnya. He further admitted that in 2005, he had lied about that conduct when questioned as part of an FBI terrorism investigation. The District Court (Preska) sentenced Farhane to the statutory maximum of 13 years.
If it is later determined that a naturalized citizen obtained his citizenship by fraud or false statements, 8 U.S.C. § 1451(a) provides that citizenship may be revoked via civil denaturalization proceedings. Thus, in 2018, after Farhane completed his sentence, the government initiated such proceedings against Farhane, alleging that: (i) his guilty plea established that he had committed crimes before his naturalization, such that he had lied during his 2002 naturalization interview and procured citizenship by concealing a material fact; and (ii) his lies and his pre-naturalization criminal conduct themselves established that he was not a person of good moral character at the time of his naturalization, as was required for him to naturalize then. Because he was collaterally estopped from denying the admissions in his guilty plea colloquy in the denaturalization proceedings, Farhane moved in the District Court for 28 U.S.C. § 2255 relief, seeking to vacate his convictions. He argued that his attorney had provided ineffective assistance by failing to advise him that his guilty plea carried a risk of denaturalization and deportation, and asserted that he would not have pleaded guilty had he known of this risk. The District Court (Preska) denied the motion and a panel of the Second Circuit affirmed.
The en banc court vacated the denial of relief and remanded for further proceedings. The Circuit noted the holding of Padilla v. Kentucky, 559 U.S. 356 (2010), that a noncitizen defendant has a Sixth Amendment right to be advised of the risk of deportation associated with a guilty plea. In the Circuit’s view, Padilla controlled:
Under Padilla, a naturalized U.S. 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. Because a guilty plea to a conviction that exposes a criminal defendant to the risk of denaturalization necessarily exposes him to the risk of deportation, a straightforward application of Padilla―holding that “counsel must advise her client whether his plea carries a risk of deportation”―resolves the question. Alternatively, because deportation is a “particularly severe” consequence, and “nearly an automatic result” of a guilty plea to certain offenses, advice regarding denaturalization, like advice regarding deportation, “is not categorically removed from the ambit of the Sixth Amendment right to counsel.” To provide effective representation, counsel must advise her client as to that paired set of serious adverse immigration consequences by at least flagging the risk.
Slip op. 14-15. In light of that holding, the Circuit vacated the denial of § 2255 relief and remanded for the District Court to decide Farhane’s ineffective assistance claim by applying the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), in the first instance.
Judge Wesley (joined by Lee, Robinson, Nathan, and Merriam) concurred. He acknowledged that deportation following denaturalization is relatively uncommon, and that the risk of this result might be difficult for defense counsel to quantify. However, he concluded that this was not sufficient to distinguish Padilla. Rather, in Judge Wesley’s view, the degree of risk should be considered at the Strickland stage of the Sixth Amendment analysis: “For example, if a naturalized citizen pleaded guilty to an undisclosed pre-naturalization crime, … but denaturalization and deportation were unlikely―perhaps the crime was not of a type for which the Government was generally seeking denaturalization or was a tenuous basis for deportation―then the court might conclude that the immigration risk carried by the conviction was so low that it was outside the norms for counsel to consider, or, that even if counsel had warned of it, there was no reasonable probability that [the defendant] would have rejected the plea.” Wesley op. 6-7. In Farhane’s case, however, the Strickland analysis was “challenging” because his crimes were clearly deportable offenses and were of the type that that might more likely motivate the government to seek denaturalization. Thus, remand on the Strickland question was appropriate.
Judge Perez (joined by Lee, Robinson, Nathan, and Merriam) concurred. She wrote to emphasize that “this case breaks no new ground―all of the pertinent legal questions in this case were asked and answered in Padilla, including the professional norms expected of Farhane’s counsel at the time of Farhane’s guilty plea.” Perez op. 1. In Judge Perez’s view, Padilla articulates a categorical rule applicable to all defendants: “when a guilty plea increases a defendant’s risk of deportation, every defendant, no matter their citizenship status, must be informed of that risk.” Perez op. 2. Judge Perez also expressed the view that Padilla controlled the deficient-performance prong of the Strickland test, because Padilla had established a duty to advise of deportation risk: On remand, “the district court need only determine whether Farhane’s trial counsel warned him that there were potential immigration consequences. If Farhane was not so warned, that would be sufficient to establish deficient performance.” Perez op. 11-12. Finally, following Padilla, Judge Perez opined that the duty to warn of denaturalization and deportation can be satisfied with a simple advisal: “All Farhane’s counsel was required to do here under Padilla was to advise him of the immigration risks he faced pursuant to his guilty plea.” Perez op. 12 n.3.
Judge Walker (joined by Sullivan, Park, and Menashi, and joined in part by Nardini) dissented. He determined that there is no Sixth Amendment duty to warn of the risk of denaturalization. In his view, Padilla was distinguishable because that case concerned “a noncitizen facing ‘virtually mandatory’ deportation as a direct consequence of his guilty plea,” whereas Farhane was a “naturalized citizen facing possible civil denaturalization―and then, as an even more remote and uncertain consequence, potential deportation.” Walker op. 1. Judge Walker saw deportation as closely connected to―and in many cases requiring―a criminal conviction, in contrast to civil denaturalization, which “is not intimately related to the criminal process, since, unlike most avenues to deportation, civil denaturalization is almost never dependent on a criminal conviction.” Walker op. 2-3. Civil denaturalization, in his opinion, is collateral. Judge Walker also thought that Farhane’s ineffectiveness claim failed on the merits under Strickland.
Judge Park (joined by Sullivan, Nardini, and Menashi) dissented. He believed that the majority’s Sixth Amendment rule requiring counsel to advise of denaturalization risk was “not only wrong” but also barred by Teague v. Lane, 489 U.S. 288 (1989), which prohibits retroactive application of new constitutional rules of criminal procedure on collateral review.
Judge Nardini dissented. He agreed with Judge Walker’s dissent that the Sixth Amendment does not require advice regarding denaturalization risk, and with Judge Park’s dissent that the majority’s rule was Teague-barred. But, given the majority’s holding, he believed that the district court should address Strickland in the first instance.
Practice Points
Here are the key practice points for criminal defense attorneys, courtesy of Federal Defenders immigration specialist attorney Isaac Wheeler:
(1) Under Farhane, you now have an affirmative duty to find out whether and how and when a client became a U.S. citizen. You can’t satisfy your Sixth Amendment obligations by relying on clients to volunteer this information. You must affirmatively inquire.
(2) Accordingly, in every case, you should ask not only whether a client is a noncitizen or U.S. citizen but also, for U.S. citizens, how and when the client became one. If a client answers that he was born in the U.S. or its possessions, the Farhane duty is discharged. Clients who derived citizenship by operation of law (typically because one or both parents became citizens when client had a green card and was under 18 years of age) are also safe. Otherwise―i.e., for clients who went through the naturalization process―you need to determine if the client is alleged to have committed any unlawful conduct prior to the date he was sworn in as a citizen.
(3) If alleged conduct in the criminal case predates the swearing-in ceremony, Farhane requires you to advise that conviction may increase the risk of denaturalization. Virtually any criminal conduct during the five years preceding the citizenship application is grounds for denial (whether or not it also triggers deportation). As Farhane explains, the risk of denaturalization arises from the fact that a noncitizen answered “no” under oath to a question about whether he had committed any crime for which he had not been arrested or prosecuted.
(4) If there is a risk of denaturalization, the Padilla duty is also triggered and defense counsel must advise on whether the criminal conviction carries the risk of triggering deportability.
(5) Farhane has implications for noncitizen clients as well. It strongly suggests, without holding, that defense counsel also have an obligation to advise a non-citizen client about deportation risks even when entering a plea to a non-deportable offense, if during the course of the plea the client would have to admit to conduct that would make him or her deportable.
Comments are closed.