This Note examines the right to effective assistance of counsel during guilty pleas through the lens of the pending Second Circuit case Farhane v. United States. This case will have significant implications for the right to effective legal representation, particularly in terms of defense attorneys’ duty to warn clients of the potential risk of denaturalization as a consequence of pleading guilty. In May 2024, the court reheard Farhane en banc and will issue a decision later this year. If this opinion aligns with the court’s initial decision, it will severely limit the rights of all defendants in criminal proceedings in the Second Circuit. This Note traces the development of the right to effective assistance of counsel to contextualize Farhane. This Note then critiques the initial Farhane decision, highlighting its incongruity with historical approaches to ineffective assistance of counsel (IAC) claims. This Note then argues for a shift toward a client-centric and circumstance-specific approach to IAC claims. Such approach would be grounded in evolving professional norms and acknowledge the severe nature of certain consequences to ensure defendants receive comprehensive legal counsel during plea negotiations. This Note contends that courts should demand more “competent” counsel to protect the fairness of plea bargaining and the overall integrity of the criminal justice system.
Introduction
Abderrahmane Farhane is likely to lose his United States citizenship as the result of a years-old criminal conviction, for which he already served eleven years in prison.1 Farhane has lived in the United States since 1995.2 He raised two of his six children in New York and ran a small gift shop on Brooklyn’s Atlantic Avenue.3 Farhane became a United States citizen in 2002, enabling two of his Moroccan-born children to also become citizens.4 However, in December 2001, the Federal Bureau of Investigation (FBI) began investigating Farhane for possible links to terrorist funding.5 Although Farhane maintains his innocence of the charges against him, he pled guilty in 2006 out of fear of a worse outcome if he proceeded to trial.6 Although his conviction pertained to activity that clearly pre-dated his naturalization, Farhane’s criminal defense attorney did not inform him that this plea put him at risk of denaturalization.7 Farhane then spent over a decade in prison, was released, and hoped to live a quiet life with his family in upstate New York.8
But, in 2018, the U.S. government initiated civil denaturalization proceedings against Farhane, alleging that he had illegally procured his citizenship by failing to disclose his pre-naturalization criminal activity on his naturalization application.9 In response, Farhane filed a habeas corpus petition in federal court, asserting that his criminal defense attorney should have warned him of the risk of denaturalization and deportation that arose from his 2006 guilty plea.10 Although courts have recognized that the loss of U.S. citizenship equates to “the loss ‘of all that makes life worth living,’”11 a three-judge panel in the Second Circuit Court of Appeals initially held that Farhane’s former criminal attorney was not obligated to warn Farhane of the “extraordinarily severe penalty”12 that could result from Farhane’s plea.13 The Court of Appeals is now reconsidering Farhane’s petition.14 The court’s ruling will determine whether the U.S. government may revoke Farhane’s citizenship and, by extension, that of two of his adult children.15
The Sixth Amendment guarantees defendants the right to effective assistance of counsel at “critical stages of a criminal proceeding,” including plea bargaining.16 Since 1984,17 federal and state courts have slowly articulated a nuanced body of caselaw defining the constitutional standard for adequate representation at all stages of criminal proceedings.18 Today, courts acknowledge a fundamental right to “effective assistance of counsel.”19 Defendants, like Farhane, may file habeas corpus petitions seeking to vacate their pleas or convictions based on ineffective assistance of counsel.20 To easily resolve such claims, many jurisdictions have utilized the “collateral consequences test” to analyze allegations of ineffectiveness of counsel.21 Under this approach, courts have held that the Sixth Amendment does not require that counsel warn defendants of any “collateral” consequences of a plea.22 But, the Supreme Court’s 2010 decision Padilla v. Kentucky23 brought the collateral consequences test into question.24
A three-judge panel of the Second Circuit Court of Appeals initially issued a ruling (“Farhane I”) in Abderrahmane Farhane’s case,25 explicitly embracing the so-called “direct/collateral dichotomy” to Sixth Amendment ineffective assistance claims.26 This marked a return to the pre-Padilla, strict adherence to the collateral/direct dichotomy.27 This decision narrowed the Sixth Amendment’s protections for criminal defendants, definitively excluding “collateral” consequences—such as civil denaturalization—from the ambit of the right to effective legal counsel.28 In holding that collateral consequences are categorically removed from Sixth Amendment protection,29 Farhane I deepened the Second Circuit’s erroneous commitment to the outdated and fundamentally flawed collateral consequences test. Scholars argue Padilla requires that courts need not follow this dichotomy and may instead proceed to the standard, two-prong “Strickland inquiry”30 for ineffective assistance claims.31 Both binding precedent and the modern state of the criminal legal field demand a circumstance-specific approach to ineffective assistance claims that takes into consideration the clarity of a consequence, a client’s priorities, and prevailing professional standards.32 Thus, the panel’s rigid adherence to this outdated test would have weakened the constitutional protections the Sixth Amendment offers to criminal defendants of all backgrounds.
Fortunately, the Second Circuit Court of Appeals granted a petition for rehearing en banc in Farhane’s case.33 On May 22, 2024, the Court of Appeals reheard Farhane’s case en banc.34 The court will likely announce its decision in Farhane II later this year. While it is unlikely that the court will do away with the collateral/direct distinction in its entirety, this will be a chance for the court to soften the sweeping language of Farhane I, thus protecting the rights of defendants in criminal proceedings.
This Note argues that Farhane I was incorrectly decided and that, in Farhane II, the Second Circuit should abandon the collateral consequences test for ineffective assistance claims, in favor of a client-centric and circumstance-specific approach. This Note begins by providing background and context on the right to effective assistance of counsel in Part I, including the development of the right to effective assistance of counsel, how jurisdictions commonly define the direct and collateral consequences of a conviction, and the development of the collateral consequences test.35 Part II discusses the Second Circuit’s holding in Farhane I.36 Part III then provides an analysis of how the Farhane I opinion improperly narrowed Padilla’s holding and, in doing so, furthered the jurisdiction’s blunt application of the collateral/direct dichotomy.37 Finally, Part IV proposes discarding the collateral consequences test and instead adopting a consequence-specific approach to ineffective assistance claims, in line with existing Supreme Court precedent.38
I. Background on Claims of Ineffective Assistance
A. The Evolution of the Right to Effective Assistance of Counsel
The Sixth Amendment of the United States Constitution enshrines the right of criminal defendants to receive assistance from counsel.39 This is a fundamental guarantee, crucial to the modern-day functioning of our legal system. But, it was not until relatively recently that the Supreme Court expanded this right to its current scope. In the 1963 decision Gideon v. Wainwright40 and 1972 decision Argersinger v. Hamlin,41 the Court broadened this Sixth Amendment guarantee to all criminal cases “where an accused is deprived of his liberty,”42 acknowledging the necessity of counsel to a fair trial.43 In 1970, McMann v. Richardson then expanded the guarantee of counsel to plea bargaining.44 The McMann Court held that a guilty plea is open to collateral attack on the ground that counsel did not provide “reasonably competent advice,” since defendants are constitutionally entitled to the assistance of counsel of this caliber.45 Thus began the recognition of the right to “effective assistance of counsel.”46 But it was the Supreme Court’s 1984 decision Strickland v. Washington47 that established the definitive, two-prong test for evaluating claims of ineffective assistance of counsel under the Sixth Amendment.48 This remains the foundational framework for assessing ineffective assistance claims, and it continues to shape the legal landscape nationwide.49
B. Strickland’s Test for Ineffective Assistance of Counsel
Strickland concerned a defendant who attempted to collaterally attack his conviction on the grounds that he received defective advice from his attorney during the pre-sentencing phase of his proceedings.50 He argued that his attorney was so ineffective as to have violated his Sixth Amendment right to competent counsel.51 To address his claim, the Supreme Court developed a two-prong test by which to analyze an attorney’s conduct, requiring a holistic evaluation of both the quality of counsel’s performance52 and its impact on the fairness of the trial.53 In doing so, the Court emphasized the need for a case-specific analysis, noting that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”54 Thus, for a petitioner to successfully assert a violation of their constitutional right to effective counsel, they must demonstrate both that their attorney exhibited deficient performance and that this performance actually prejudiced them.55
The first prong of the Strickland test—the so-called “deficient performance prong”—requires an inquiry into whether an attorney’s behavior meets an “objective standard of reasonableness.”56 To conduct this inquiry, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”57 The analysis here centers the Court’s belief in the importance of guaranteeing professionally competent representation that is in line with contemporaneous prevailing professional norms, without imposing more duties on counsel than feasible.58
However, even assuming deficient performance, the petitioner must still demonstrate the requisite prejudicial effect.59 To satisfy the second prong of the Strickland ineffective assistance test—regarding prejudice to the defendant—a petitioner must show that their attorney’s deficient performance resulted in a “reasonable probability” of a different trial outcome.60 This inquiry goes to the heart of the extent to which an attorney’s conduct deprived the petitioner of a reliable and fair proceeding.61
C. Delineating Direct and Collateral Consequences
Legal counsel does not bear the responsibility of ensuring that a defendant receives a fair trial alone: the Fifth Amendment imposes a similar duty on courts.62 To limit this duty in the context of plea bargains, lower courts developed a rule in the mid-twentieth century requiring that a defendant must first be apprised of the direct, but not the collateral, consequences of the plea before pleading guilty to a crime.63 The Second Circuit, for example, determined that it would not be manifestly unjust to hold a defendant to a plea “merely because they did not understand or foresee . . . collateral consequences.”64
Collateral consequences of criminal convictions are the legal penalties, disabilities, or disadvantages imposed on a person either automatically upon conviction or subsequently authorized in relation to the conviction.65 More simply, they are typically described as “all civil restrictions that flow from a criminal conviction.”66 The Second Circuit has defined direct consequences as “those that ‘have a definite, immediate and largely automatic effect on the range of the defendant’s punishment,’ with all other consequences being collateral.”67 Such consequences may be “very impactful and long-lasting,”68 and they have rapidly increased, both in number and severity, since the inception of the “War on Drugs.”69 Defendants may also be primarily concerned with avoiding such consequences.70
In 1970, the Supreme Court adopted the view that a truly voluntary plea can only be made by a defendant who is “fully aware of the direct consequences” of the plea.71 Brady v. United States defined “direct consequences” as including “the actual value of any commitments made to him by the court, prosecutor, or his own counsel.”72 The Court assumed that pleas made “with adequate advice of counsel” satisfy this standard.73 Following Brady, lower courts almost universally adopted the so-called “collateral consequences test:” before a defendant pleads guilty to a crime, they must only be appraised of the direct consequences—not the collateral consequences—of the plea for it to qualify as knowing and voluntary.74
D. Expansion of the Direct/Collateral Consequences Test
Following Brady, courts broadly applied the collateral consequences test to Fifth Amendment claims.75 But a question loomed: did it apply equally to ineffective assistance claims? In 1985, the Supreme Court was presented with a chance to address this question but failed to deliver a satisfactory answer.76 Importantly, in Hill v. Lockhart, the Court extended Strickland’s two-prong test to the plea-bargaining process.77 The Court recognized the critical importance of effective representation during the plea-bargaining stage, highlighting the prevalence of plea bargaining and the substantial impact it has on defendants’ fates.78 However, Hill did little to address “whether advice concerning a collateral consequence must satisfy Sixth Amendment requirements.”79 In Hill dicta, the Court stated that “parole eligibility [was] a collateral rather than a direct consequence of a guilty plea, of which a defendant need not be informed.”80 However, the Court did not definitively determine whether an attorney’s failure to advise a client of the collateral consequences of a conviction could violate the Sixth Amendment.81
Consequently, in the uncertainty following Hill, courts applied the direct/collateral dichotomy to Sixth Amendment ineffective assistance of counsel claims.82 Under this approach, appellate courts in nearly thirty states concluded that attorneys were not required to inform their clients of any collateral consequences of a conviction.83 Such reasoning presumes that defendants have no constitutional right to be made aware of such consequences before pleading guilty. By extension, defendants have no right to withdraw a guilty plea for ignorance of collateral consequences.84 The only exception to this bar is the near-universal prohibition against affirmative misadvice from counsel.85 But the collateral consequences test, despite its facial simplicity, has “not necessarily lead to clarity—or fair results—regarding such applicability.”86
E. Padilla v. Kentucky: Reevaluating Direct/Collateral Consequences
The landmark decision Padilla v. Kentucky signaled a dramatic shift in Sixth Amendment jurisprudence. Padilla held that an attorney’s failure to advise clients of a clear risk of deportation may constitute ineffective assistance.87 Padilla addressed the pressing issue of deportation consequences in the context of guilty pleas,88 emphasized the importance of prevailing professional norms,89 and rejected a rigid distinction between direct and collateral consequences.90 Previously, most jurisdictions considered deportation and other immigration consequences to be “collateral” consequences that could not form the basis of an ineffective assistance of counsel claim.91 But Padilla departed from this approach: the Court held that “[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.”92 Thus, before delving into the reasonableness or prejudicial nature of counsel’s actions, the Padilla Court found this dichotomy inapplicable because “[t]he collateral versus direct distinction is . . . ill suited to evaluating a Strickland claim concerning the specific risk of deportation.”93
The Court first recognized that the supposedly “collateral” consequence of deportation was a particularly severe consequence, reiterating that it is “the equivalent of banishment or exile.”94 It then examined the close connection between deportation and criminal convictions, noting that removal was “nearly an automatic result for a broad class of noncitizen offenders.”95
The Padilla Court, in conducting its subsequent Strickland analysis, then underscored the importance of prevailing professional norms in defining the scope of reasonable representation.96 However, the Court placed limits on counsel’s duty to advise clients of a conviction’s potential deportation consequences, noting that, “[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear.”97
As interpreted in the subsequent 2013 decision Chaidez v. United States, Padilla announced a “new rule”98 by expanding the duties owed by defense counsel to explain the immigration consequences of a plea.99 As the Court explained in Chaidez,100 before Padilla, “it was widely held that the right to effective assistance of counsel in the context of plea agreements extended only to advice about the ‘direct,’ as opposed—to ‘collateral’ consequences of a plea agreement.”101 Padilla thus elevated the standard of effective assistance by recognizing the significance of non-criminal consequences in the plea-bargaining process.102 In rejecting a rigid distinction between direct and collateral consequences, Padilla reinforced the constitutional imperative articulated in Strickland that defense counsel provide accurate advice to their clients,103 ensuring that both defenders and prosecutors could “reach agreements that better satisfy the interests of both parties.”104
Subsequent decisions, such as Lee v. United States, have suggested support for a departure from a rigid application of the collateral consequences test.105 Many lower courts have since eschewed the test and no longer categorically reject ineffective assistance claims related to collateral consequences of convictions.106 However, other courts have stubbornly adhered to the direct/collateral dichotomy for both Sixth Amendment ineffective assistance claims and Fifth Amendment attacks on pleas.107 This creates even further confusion, given the “analogous” relationship between defendant’s Fifth and Sixth Amendment attempts to withdraw pleas.108 This inconsistency, confusion, and resulting unevenness in protection of criminal defendants’ Constitutional rights109 underscores the need for a more robust approach.
F. Civil Denaturalization: No Warning Guaranteed Under the Constitution?
Padilla’s breach of the “wall between direct and collateral consequences”110 encouraged some defendants and their attorneys to argue for additional exceptions to the collateral consequences doctrine and push courts to re-evaluate how they determine which consequences are essential to a knowing voluntary plea.111 Naturally, as a result of Padilla’s emergence from the realm of immigration law, advocates attempted to expand this breach to other immigration consequences.112 Denaturalization has been one such heavily-litigated consequence.113
Denaturalization is the legal process through which the government may revoke an individual’s U.S. citizenship.114 The process formally dates back to 1906.115 Today, there are two mechanisms by which the government may seek denaturalization: 18 U.S.C. § 1425 criminal denaturalization and 8 U.S.C. § 1451(a) civil denaturalization.116 This Note is concerned with the latter. Under § 1451(a), U.S. Attorneys may initiate civil proceedings to revoke the citizenship of naturalized individuals if that citizenship was “illegally procured” or was “procured by concealment of a material fact or by willful misrepresentation,”117 and “an illegal act by the defendant played some role in her acquisition of citizenship.”118 But, there is no statute of limitations on the government’s ability to initiate these types of proceedings, and the defendant has no right to a jury nor appointed counsel.119
Although the Office of Immigration Litigation’s District Court Section Enforcement Unit has primary authority to bring denaturalization cases under § 1451(a),120 it pursues cases in line with the Department of Justice Civil Division’s priorities.121 Denaturalization cases rise and fall with each presidential administration, often dependent upon prosecutorial discretion directives and historical crises.122 Starting in 2008, denaturalization cases surged after being largely absent from American policy for the previous fifty years.123 Given the resource-intensive nature of denaturalization, the Civil Division prioritizes cases involving matters of national importance, including terrorism.124 This confluence of priorities and current events is what led the U.S. government to initiate civil denaturalization proceedings against Abderrahmane Farhane over a decade after his conviction.
II. Background on Farhane v. United States
Farhane v. United States raises the question of whether counsel has a Sixth Amendment duty to advise a criminal defendant about the risk of civil denaturalization resulting from a guilty plea.125
A. Facts & Procedural History
In 2006, Abderrahmane Farhane pled guilty to providing false statements to federal law enforcement and conspiring to launder money.126 During his plea allocution, Farhane stated that some of the acts for which he was convicted had been committed in 2001.127 This activity pre-dated his 2002 naturalization.128 Accordingly, in 2018, the United States government filed a complaint in the Eastern District of New York seeking to revoke Farhane’s citizenship under 8 U.S.C. § 1451(a).129 During Farhane’s 2002 naturalization process, he reportedly denied ever knowingly committing a crime for which he had not been arrested.130 In light of his subsequent 2006 guilty plea, the denaturalization complaint alleged that Farhane had illegally concealed pre-naturalization criminal acts from the government.131
In December 2018, while on supervised release, Farhane filed a 28 U.S.C. § 2255 habeas corpus petition to vacate his guilty plea, conviction, and sentence.132 He claimed that his lawyer did not warn him of the risks of denaturalization and deportation arising from his plea.133 The district court, however, denied Farhane’s habeas petition, stating that Farhane failed to demonstrate that his lawyer’s conduct was unreasonable.134 Farhane then appealed to the Second Circuit Court of Appeals.135 Initially, a panel within the Court of Appeals affirmed the district court’s holding in August 2023 (“Farhane I”).136 But, in February 2024, the court ordered a rehearing en banc for Farhane v. United States, following a petition Farhane filed on October 16, 2023.137 Oral arguments were held on May 22, 2024, and the decision is pending.138
B. The Farhane I Decision
The Farhane I decision proclaimed that, “[b]ecause civil denaturalization is a collateral and not a direct consequence of a conviction, . . . the Sixth Amendment does not require attorneys to warn of that risk.”139 The court also held that, despite Padilla, collateral consequences are “categorically removed from the scope of the Sixth Amendment,” except in cases of affirmative misadvice.140 The majority further wrote that attorneys cannot be expected to possess expertise on subjects outside their area of expertise,141 and thus cannot be expected to advise clients of the collateral consequences of a conviction. The panel characterized Farhane’s denaturalization as an unforeseeable collateral consequence.142 Accordingly, Farhane’s attorney was not required to warn him of such a risk.143
Farhane’s claim fared no better under the panel’s application of Padilla’s “step zero”144 analysis. The majority conceded that denaturalization is a severe punishment but opined that denaturalization is not “intimately related” to the criminal process.”145 It noted that denaturalization can occur with or without a criminal conviction, signifying that Farhane’s denaturalization was not sufficiently dependent on the outcome of his criminal case.146 Civil denaturalization therefore cannot be “intimately related to the criminal process”147 and thus does not merit the Padilla exception from the direct/collateral dichotomy.148
The Farhane I dissent, written by Judge Carney, criticized the majority’s blunt application of the direct/collateral consequences distinction.149 The dissent argued that Padilla truly signified that courts should inquire into whether a consequence is “sufficiently severe” and “intimately related to the criminal process.”150 Ultimately, after applying this test, Judge Carney would have held that civil denaturalization is both sufficiently severe and intimately related to the criminal process to merit the same treatment that deportation received in Padilla.151 The dissent also firmly disagreed with the majority’s comparison of Fifth and Sixth Amendment jurisprudence. Judge Carney countered that, while there may be overlap between a court’s Fifth Amendment obligation and an attorney’s Sixth Amendment duties to their client, the attorney’s obligations are greater.152 Accordingly, the dissent would not have categorically dismissed Farhane’s claim as concerning a “merely collateral consequence of his plea.”153
C. The Farhane II Opinion
Subsequently, recognizing that the Farhane I panel’s decision improperly construes Supreme Court precedent and “raises questions of exceptional importance,” Farhane filed a petition for a rehearing en banc with the Court of Appeals,154 which the court granted.155 On May 22, 2024, the Court of Appeals reheard Farhane’s case en banc.156 The court will likely announce its decision in Farhane II later this year.
Despite the initial panel decision reaffirming the circuit’s commitment to the collateral/direct dichotomy, the en banc decision will override the panel’s ruling and determine the direction of the circuit’s future Sixth Amendment jurisprudence. This presents an opportunity for the court to soften the strong language of Farhane I, thereby safeguarding defendants’ rights in criminal proceedings. Farhane II also offers a chance for the Second Circuit to update its approach to informing defendants about significant collateral consequences, bringing its legal principles in line with the prevailing professional standards as mandated by Strickland.
III. Farhane I Erroneously Adhered to the Direct/Collateral Consequences Test
The Farhane I dissent properly identified the major flaws underlying the majority’s reasoning. Padilla’s mandate that counsel warn defendants of the deportation risks of a conviction is sufficient to show that Farhane received objectively unreasonable assistance from his former criminal defense counsel.157 Further, the Farhane I majority improperly narrows the reach of Padilla in holding that collateral consequences are categorically removed from Sixth Amendment protection.158 In doing so, the court glossed over the “seismic” effect of Padilla on effective assistance of counsel claims and the Supreme Court’s disapproval of “traditional frames of formalism” as applied to duties of defense counsel.159 Padilla provided a clear pathway toward an approach to Sixth Amendment ineffective assistance claims that is more flexible and fair, in line with the vision articulated in Strickland.160 Finally, the majority also incorrectly analyzed the cases that it relied upon in support of its holding, leading to an incorrect determination that the collateral consequences test is consistent with Supreme Court precedent.161
A. Farhane I Is Inconsistent with Padilla
The Farhane I majority failed to understand that a conviction that creates a high risk of denaturalization automatically creates a high risk of deportation, thus requiring a warning under Padilla. Further, it incorrectly determined that civil denaturalization is not “intimately related to the criminal process” to merit an exception to the direct/collateral test.162
1. Padilla Requires That Counsel Warn of a Risk of Denaturalization
Under Padilla, counsel has a constitutional duty to inform criminal defendants when “pending criminal charges may carry a risk of adverse immigration consequences.”163 A conviction that creates a high risk of denaturalization automatically translates to a high risk of deportation,164 which requires a warning under Padilla. Generally, the government does not allocate the resources necessary for denaturalization proceedings without intending to ultimately remove the defendant as well.165 Moreover, once § 1451(a) denaturalization proceedings166 are initiated against a defendant who has entered such a guilty plea, the defendant is collaterally estopped from disputing facts previously admitted to in a plea, leaving the defendant without a viable defense.167 Additionally, courts “lack any equitable discretion to deny the government’s application to revoke the citizenship of a citizen subject to denaturalization.”168
Accordingly, neither the defendant nor the court can prevent the stripping of the defendant’s citizenship and their subsequent guaranteed removability. As a result, it hardly makes sense to argue that an attorney has a Sixth Amendment obligation to advise their client about the potential for deportation resulting from a plea, except in cases where the government must first revoke the client’s citizenship.169 This additional step cannot be deemed an extra hurdle that makes deportation any less likely when denaturalization is sufficient to guarantee this result. Thus, under Padilla, competent counsel must warn defendants when a plea carries a risk of denaturalization.170
2. Denaturalization Merits Exception to the Collateral Consequences Test
For the same reasons that Padilla is dispositive in showing that a risk of denaturalization requires a warning from counsel, such a warning is also warranted after applying Padilla’s “step zero” exception analysis. As the Farhane I court recognized, Padilla asked whether deportation was “intimately related” to the criminal process so as to require Sixth Amendment protection.171 As denaturalization is a penalty that is difficult to divorce from a conviction and shares other characteristics with deportation, it merits exception from the strict direct/collateral test.172
The Farhane I panel applied Padilla’s test to civil denaturalization but reached the incorrect conclusion. As the Supreme Court has recognized time and time again, denaturalization is an extraordinarily severe consequence of a conviction, which can affect both a defendant and their family members.173 The Farhane I majority thus properly conceded that denaturalization is sufficiently severe to satisfy this prong of Padilla’s “step zero” framework.174 However, the panel failed to recognize that denaturalization “directly flow[s]” from a criminal conviction.175
Farhane’s plea immediately made him vulnerable to a charge of naturalization fraud under 18 U.S.C. § 1425. Upon a conviction under 8 U.S.C. § 1451, the court must immediately revoke the grant of citizenship and declare the individual’s naturalization certificate canceled.176 Farhane’s plea therefore made him vulnerable to denaturalization under § 1451(a), which provides that “it shall be the duty of” the government to institute such proceedings to revoke naturalization in such circumstances.177 As the Farhane I dissent recognized, the fact that one must look to other statutory provisions to determine whether prior criminal conduct renders naturalization “illegally procured” does not make denaturalization “any less automatic” a result.178
Denaturalization and deportation are also essentially indistinguishable in terms of their relationship to a criminal conviction. Both consequences may or may not occur after a plea and both may be initiated even without a conviction.179 In attempting to distinguish denaturalization from deportation, the Farhane I majority relied upon the fact that denaturalization is a “separate proceeding” from a criminal prosecution that can occur with or without a criminal conviction and is subject to the government’s considerable discretion in bringing denaturalization cases.180 However, as the dissent noted, the same is true of deportation.181 Denaturalization proceedings, like removal proceedings, may be civil or criminal.182 Moreover, the government can choose to initiate both denaturalization and deportation without a criminal conviction.183 Finally, both denaturalization and deportation are innately bound up with government discretion and may be canceled via prosecutorial discretion.184 There is, therefore, no real procedural distinction between denaturalization and deportation, and both have a close connection to a conviction.
B. Farhane I Mischaracterizes the Nature of the Cases It Relies on for Support
Relevant Supreme Court precedent does not mandate that the Second Circuit shackle itself to the harshness of the direct/collateral dichotomy and the Farhane I majority’s broad claim that all collateral convictions are removed from the ambit of Sixth Amendment protection. The majority recognized that “this framework may not survive the Supreme Court’s decision in Padilla v. Kentucky.”185 Yet, the majority relied on Chaidez and Padilla to claim that counsel’s failure to inform a defendant of the collateral consequences of a guilty plea is never a violation of the Sixth Amendment.186
However, the majority mischaracterizes this excerpt from Chaidez, which described the lower courts’ approaches to the Sixth Amendment ineffective assistance claims in the wake of Hill but before the Padilla decision.187 The Chaidez opinion goes on to note that the Padilla Court rejected the categorical approach in the context of immigration consequences and found the distinction poorly suited to addressing deportation.188 The Farhane I majority’s justification for its adherence to the direct/collateral dichotomy thus boils down to citations to Youngs v. United States and the Seventh Circuit case United States v. Reeves.189 However, neither case is dispositive in this instance, and the Farhane I panel thus was not required to apply the collateral consequences test. Rather, the Supreme Court has already formulated an alternative to this dichotomy in Padilla and Strickland,190 which the Farhane I panel should have followed. The collateral consequences test is too inflexible to be applied to Sixth Amendment claims in the modern criminal legal landscape and should therefore be abandoned.191
1. Neither Youngs Nor Reeves Require Adherence to the Collateral Consequences Test
Despite the claims of the Farhane I majority,192 not applying the collateral consequences test would not be contrary to Second Circuit precedent. The direct/collateral dichotomy itself did not originate in the Sixth Amendment context: rather, it emerged from Brady, which concerned the court’s duty to ensure that a defendant’s plea is informed and voluntary.193 Defense counsel’s obligations, however, are broader than those of a judge.194 As the Youngs court itself noted, the “Sixth Amendment responsibilities of counsel to advise of the advantages and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth Amendment.”195
With respect to Youngs, the Farhane I majority claimed the case showed that the Second Circuit had limited Padilla’s holding to cases involving deportation.196 The Youngs court reasoned that the consequence at issue in the case was “remote and uncertain” and therefore beyond the scope of Padilla’s possible exceptions.197 However, the issue in Youngs arose out of the analogous—but still distinct—Fifth Amendment duty of courts to inform criminal defendants of possible conviction consequences. Youngs merely stands for the proposition that Padilla did not discard the direct/collateral distinction for due process nor for Fifth Amendment claims.198 The Youngs court itself recognized that counsel’s duty to advise a client of the pros and cons of a guilty plea under the Sixth Amendment is greater than the court’s responsibilities under the Fifth Amendment.199 The court paid special attention to the language in Libretti v. United States: “[I]t is the responsibility of defense counsel to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forgo.”200
The Farhane I majority acknowledged this distinction between the obligations of counsel and courts but dismissed it, simply stating that the Fifth Amendment responsibilities of the court are “closely related.”201 But the majority provided no specific justification as to why the court’s narrowing of Padilla’s holding in the Fifth Amendment context should apply to defense counsel, of whom clients and the legal field expect more.202 Nor did the majority address countervailing precedent from other federal courts that suggest that courts have a broader obligation under the Fifth Amendment than attorneys do under the Sixth Amendment.203 In light of these rationale, Youngs does not mandate the application of the direct/collateral test in these circumstances.
The Seventh Circuit case that the majority relies upon, United States v. Reeves, is similarly unavailing to the Farhane I majority’s perspective. Reeves involved a defendant’s ineffective assistance claim, wherein the defendant claimed that his attorney did not inform him that a guilty plea could be used against him to trigger a statutory sentencing enhancement in a subsequent proceeding.204 The Reeves court compared the characteristics of sentencing enhancement to the severity and automatic nature of deportation and found that the consequence was not an “automatic” one to justify the Padilla exception.205 The Seventh Circuit distinguished Padilla from the facts in Reeves and narrowed its holding, reasoning that the Padilla exception was limited to deportation only and thus did not foreclose the court from applying the direct/collateral consequences test.206 The Reeves court ultimately held that it was not unreasonable for Reeves’ attorney to fail to advise his client that a guilty plea could subsequently result in a sentencing enhancement.207 Reeves thus has no direct bearing on the outcome in Farhane I, as it is distinguishable from the facts here.208
Thus, neither Youngs nor Reeves require that the Second Circuit adhere to the collateral consequences test. Youngs is fundamentally a Fifth Amendment case that does not dictate the outcome in Farhane I, and the Seventh Circuit’s decision in Reeves is limited to counsel’s failure to advise on potential sentence enhancements.209 Instead, the Farhane I panel should have looked to the principles explicitly outlined in Padilla and Strickland to make its decision.
2. The Supreme Court Formulated an Alternative to the Collateral Consequences Test
The Supreme Court has never sanctioned the application of the collateral consequences test to Sixth Amendment ineffective assistance claims.210 In Padilla, the Court distanced itself from the dichotomy.211 The Court reaffirmed that Strickland remained the core of an ineffective assistance claim and that its two-part test should be applied once a court makes a threshold determination that a consequence falls within the Sixth Amendment’s ambit.212 Chaidez also did not mandate the continued use of the direct/collateral dichotomy in the Sixth Amendment context: it primarily stands for the proposition that Padilla cannot be applied retroactively.213 It also clarified that Padilla did not provide a general opinion on the future applicability of the dichotomy in the context of the Sixth Amendment.214 This left the door open for subsequent challenges to the dichotomy’s fairness and ultimate constitutionality. As clear from the growing gap between the legal field’s standard for “effective counsel” and the standard upheld in the lower courts, the dichotomy is not useful. Rather, it prevents the development of higher standards for defense counsel and erodes the fairness of defendants’ plea agreements.215
Strickland also demands that “[p]revailing norms of practice as reflected in American Bar Association standards and the like” serve as “guides to determining what is reasonable” to expect from attorneys.216 As the amici submitted to the court in advance of both the Farhane I decision and Farhane II oral argument noted, it has been common practice for competent defense counsel to warn criminal defendants of a wide array of immigration consequences, such as denaturalization, since before Farhane pleaded guilty.217 For example, the American Bar Association (ABA) has urged attorneys to go beyond Padilla’s mandate to advise clients about the clear deportation consequences of their convictions.218 The ABA instructs attorneys to inquire into a client’s citizenship and immigration status as well as advise clients of all potential immigration consequences, “including removal, exclusion, bars to relief from removal, immigration detention, denial of citizenship, and adverse consequences to the client’s immediate family.”219
Therefore, the Farhane I majority should have foregone the collateral consequences test in this instance and instead looked to the framework provided in Padilla, as well as the prevailing professional standards in place at the time of Farhane’s plea. Under both lenses, it is clear that Farhane should have received a warning that his plea, as taken, subjected him to a reasonably discernable risk of denaturalization.
IV. Proposal: A Circumstance-Specific Alternative
The Farhane I panel should have adopted a more circumstance-specific approach to Sixth Amendment claims, rather than asserting that collateral consequences are “categorically removed from the scope of the Sixth Amendment.”220 The Second Circuit should return to fundamental due process and fairness basics: client priorities, prevailing professional standards, and the nature of the post-conviction consequence in question. Such a turn would not be unprecedented: courts have already begun to reexamine their adherence to the direct/collateral framework.221 Moreover, doing so would bring the court’s approach in line with the basic principles articulated in Strickland and Padilla.222 Nothing less than this nuanced approach, set forth by the Supreme Court in the 1980s223 and not since undermined, protects the ultimate fairness of plea bargaining.
A. Counsel’s Duty to Determine Client Priorities and Warn of Clear Risks
The Farhane I majority expressed dismay at the dissent’s suggestion that Padilla requires that courts determine if the Sixth Amendment requires that counsel advise defendants of a specific consequence on a case-by-case basis.224 The majority asserted that the collateral/direct dichotomy is more useful than this case-specific approach because it is a guide to defense counsel.225 Reliance on a rigid dichotomy, however, risks ignoring the Supreme Court’s historic reliance on professional norms and on pragmatic impacts of a plea.226 It is also inconsistent with the directive in Strickland to conduct a “case-by-case examination”227 of the totality of the evidence to determine whether the “particular errors of counsel” prejudiced a defendant.228 In fact, in Strickland, the Court noted that “[m]ore specific guidelines are not appropriate.”229 The Second Circuit has also recognized the validity of case-specific analysis.230 And, as the Farhane I majority itself noted, there may be other so-called collateral consequences that are severe and automatic enough that they are, like deportation, “ill suited” to the framework.231 Courts are therefore already bound to conduct a case-by-case inquiry, and counsel should endeavor to warn defendants of important consequences of a plea or conviction.232
Of course, given the sheer number of collateral consequences of convictions, it would be far too burdensome for counsel to warn defendants of every potential consequence.233 The appropriate limiting principle for this duty should therefore be determined by an inquiry into a client’s preferences and tolerance for risk.234 It is a basic and well-recognized principle that good attorneys should determine which consequences are the most important to their client’s decision-making.235 The Supreme Court has also repeatedly sanctioned this approach. In Hill, the Court suggested that counsel should pay attention to circumstances that are of particular importance to a defendant and whether this issue affected their decision to plead guilty.236 In the 2017 decision Lee v. United States, the Court also noted the significance of “a defendant’s expressed preferences” and the importance that a defendant places on a particular consequence.237 The Second Circuit has also explicitly recognized the importance of inquiring into a defendant’s expressed preferences.238 Adopting such a standard would encourage attorneys to appropriately intake, interview, and weigh risks with their clients.239
For example, in the wake of Padilla, criminal defense attorneys modified their behavior to ensure that defendants were advised of the risk of immigration consequences.240 Before the decision, some jurisdictions did not recognize such a failure as ineffective assistance.241 But now, even in jurisdictions where such warnings were not commonplace before 2010, Padilla’s holding is an enforceable norm.242 It has led frontline criminal defense organizations to ensure that defendants are thoroughly advised of the possible consequences of their convictions and seek to avoid such consequences.243 Training on such consequences has also become a “staple” for defense lawyers across the country.244 All in all, this motivated attorneys to think creatively about defense and to improve representation efforts overall to comply with Padilla’s holding.245
When attorneys gather information about a client’s priorities and defendants receive more complete information about the consequences of a plea, it enables both parties to effectively navigate plea negotiations (hence why the Supreme Court has approved such practices).246 Such practices have been shown to have a significant impact on whether a defendant chooses to enter a plea or proceed to trial.247 Thus, because expecting more effort from attorneys can demonstrably benefit clients, it should not be something the legal field avoids. Through such thoroughness, attorneys can ensure that a plea truly “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”248
Especially when weighed against the demonstrated benefits of setting more demanding standards for attorneys, the risk of inconvenience to attorneys under such an approach should not trump the maintenance of defendants’ constitutional rights.249 Rather, the obligations imposed on defense attorneys—who are charged with advocating for the best interests of their clients and often their liberty—should “strive to meet the constitutional standard, rather than to admit that the Constitution cannot be followed.”250 And, although it may be at times difficult for courts judging an attorney’s actions to make judgments on the specifics of counsel’s decisions, this is what both precedent251 and fundamental fairness demand.252
B. Evolving Professional Norms as a Measure of Effectiveness
Relatedly, both Strickland and Padilla point to professional standards—which emphasize accounting for the specific circumstances of each defendant’s case and are responsive to changes in the legal field and society at large—as setting the best applicable “objective reasonableness” standard to apply for ineffective assistance claims.253 Such prevailing norms of professional practice may serve as guides for attorneys’ behavior. Strickland and Padilla also already recognized such standards as ultimately defining the scope of reasonably effective counsel.254
As noted in Padilla, such standards are helpfully set forth in “[ABA] standards and the like.”255 The ABA and other professional associations have long-encouraged attorneys to advise their clients of the potential collateral consequences that could result from a plea.256 These practices pre-date the relevant events in Farhane I.257 Although such standards may set a high bar, it is the duty of courts to ensure that attorneys abide by these widely accepted conventions when reasonable.
Such compilations of standards are also subject to regular updates to keep pace with developments in the law and the legal field.258 In a recent task force report, the ABA noted that defense attorneys must “ascertain reasonably identifiable collateral consequences . . . prior to the entry of any guilty plea.”259 This emphasizes the duty of defense counsel to thoroughly investigate claims and give case-specific advice to clients.260 More to the point for Farhane, it has been common practice for competent defense counsel to warn criminal defendants of a wide array of immigration consequences since before Farhane pled guilty.261
The ABA has also long instructed attorneys to inquire into a client’s citizenship and immigration status and advise clients of all potential immigration consequences, including “denial of citizenship[] and adverse consequences to the client’s immediate family”262—both relevant in Farhane’s case. The remoteness of such possibilities is no matter: counsel is charged with providing a client with full information regarding the immigration consequences of a plea or conviction “under all possible eventualities.”263 In light of Strickland’s clear directive that professional standards set the bar for effective assistance, it hardly makes sense for the courts to lag behind such clear professional standards.264
If courts continue to fail to encourage attorneys to provide defendants with information about reasonably relevant consequences of a conviction, it would be nothing short of an erosion of Sixth Amendment guarantees, especially in light of the current landscape of the criminal legal system. In 2022, the overwhelming majority—about 89.5%—of defendants in federal criminal cases pled guilty rather than proceeding to trial, while another 8.2% had their cases dismissed.265 This makes advice related to the consequences of pleas more important today than ever before. Moreover, there are over forty thousand possible collateral consequences that may result from criminal convictions.266 While the Farhane I majority balks at requiring counsel to warn clients of such consequences,267 it is even more illogical to require defendants to navigate through the Kafkaesque potential consequences of their pleas alone. What else, if not for assistance in navigating such a complex system, is counsel for?
Indeed, criminal lawyers are not expected to have expertise in other areas of the law, and it would be unrealistic to expect them to provide expert advice on matters that lie outside their area of training and experience.268 However, as detailed, the prevailing professional norms for defense attorneys now dictate that attorneys should make efforts to advise their clients of relevant collateral consequences and ascertain their clients’ priorities. It is through such practices that counsel ensures that the legal system produces “just results.”269 When the Supreme Court has identified such norms as the standards by which to judge ineffective assistance of counsel claims,270 it is illogical for the courts to not heed such standards.
C. Inquiry into the Nature of a Consequence
Padilla also suggests a third approach to a case-by-case analysis of post-conviction consequences: namely, an inquiry into whether a consequence is punitive.271 Before Padilla, courts long considered immigration proceedings to be civil, rather than criminal,272 and that deportation is not a form of punishment for a crime.273 Despite this, the Supreme Court finally held in Padilla that deportation’s severe nature merited recognition that it is not quite a civil nor a criminal consequence.274 This suggests that the quasi-criminal nature of deportation as a consequence bore some weight in the court’s decision-making.275 It is now plain that immigration consequences, like denaturalization, fit within the “incarcerative” or punitive bucket of consequences. As the Farhane I majority conceded, denaturalization is a “serious” consequence, which merits consideration.276
An inquiry into the nature of a consequence easily applies to other collateral consequences as well. Indeed, the Supreme Court has recognized that “the severity of the penalty and the ‘automatic’ way it follows from conviction” are the relevant factors to determine whether the consequences merit Strickland scrutiny.”277 The Court therefore sanctions a distinction between collateral consequences that have “punitive outcomes versus those which exist for social protection.”278 Such an inquiry into the “nature” of a consequence neatly aligns with Padilla’s inquiry into the severity of a consequence at issue.279 This also dovetails with an attorney’s recognized obligation to inquire into and serve their client’s unique interests.280 A subsequent inquiry into the “automatic” way a consequence follows a conviction281—namely, examining the interrelatedness of a consequence and the relevant law, as the Court did in Padilla—is also consistent with a focus on the punitive nature of a consequence. By tying a consequence to the criminal system, courts can formally recognize the reality that clients often consider collateral consequences when deciding whether to enter a plea or proceed to trial.282
Conclusion
If the Court of Appeals’ Farhane II decision aligns with Farhane I, it will have long-lasting consequences in the Second Circuit and severely limit the rights of defendants. Under such a broad application of the collateral consequences doctrine, courts would be barred from assessing whether any “collateral” consequence of a conviction is sufficiently “severe and automatic” to warrant following Padilla and Strickland. The recent uptick in civil denaturalization actions makes it clear that it is more important now than ever for defense counsel to advise clients of a potential risk of denaturalization resulting from a guilty plea.283 The stakes are particularly high in light of this trend and the lack of a statute of limitations for civil denaturalization cases. If the court echoes the reasoning in Farhane I, naturalized citizens would be forced to navigate any vulnerabilities resulting from convictions related to pre-naturalization conduct without a guarantee of effective counsel. This would contribute to widespread anxiety among naturalized citizens, just as previous encroachments upon naturalized citizens’ rights have.284 But such a decision would also have far-reaching consequences that will affect all criminal defendants, regardless of citizenship status or national origin.
Farhane I narrowed Padilla to the point that it is difficult to imagine a consequence of a criminal conviction that is sufficiently related to the conviction so as to require advice from counsel under the Sixth Amendment.285 This broad holding “risks foreclosing future Sixth Amendment challenges based on failures to advise as to other assertedly ‘collateral’ consequences.”286 Such a bar is relevant to all criminal defendants, especially given the increasing prevalence of guilty pleas and the growing number of collateral consequences that come part and parcel with such pleas.287
Fortunately, there is a chance that the Court of Appeals will issue a different decision in Farhane II.288 The court should seize this opportunity to instead embrace the complexities of Padilla’s flexible threshold test and demand more “competent” counsel. As representation makes all the difference in the outcome of a trial,289 the guarantee of effective assistance makes all the difference in providing defendants a fair opportunity to vindicate their claims. The court should be eager to ensure that attorneys provide the best possible reasonable representation to clients. The imperative to protect defendants’ right to a fair trial requires nothing less.