CA2, En Banc, on Ineffective Assistance: Farhane v. US

Farhane v. US

"Over a decade ago, the Supreme Court ruled that the Sixth Amendment requires criminal defense counsel to advise her client whether a guilty plea carries a risk of deportation. 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. A risk of denaturalization cannot be decoupled from a risk of deportation. A naturalized U.S. citizen considering whether to enter a guilty plea has a constitutional right to be advised by counsel that he may lose his citizenship and be banished from the country as a result. Petitioner-Appellant Abderrahmane Farhane came to the United States almost thirty years ago, settling with his family in Brooklyn. He became a naturalized U.S. citizen in 2002. In 2006, he pleaded guilty on advice of counsel to serious crimes and served over eleven years in federal prison as a result. The government filed a complaint for denaturalization against him in 2018, over a year after his release from prison, based on conduct admitted to in his plea. Upon learning of the government’s intent to denaturalize him, Farhane moved to vacate his plea, conviction, and sentence under 28 U.S.C. § 2255. He asserted an ineffective assistance of counsel claim, alleging that his trial counsel never advised him of the risk of denaturalization and thus, removal, and that he would not have agreed to plead guilty had he known of this risk. The District Court (Preska, J.) denied his motion. On appeal, a divided panel affirmed the denial. In these en banc proceedings, 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 reevaluate Farhane’s Strickland claim consistent with this opinion."

[Hats way off to Prof. Ramzi Kassem and team of many amici!  Audio of the oral argument is here.]