Farhane v. United States

Brief for Amici Curiae National Association of Criminal Defense Lawyers and Federal Defenders of New York, Inc., in Support of Appellant’s Petition for Rehearing en Banc

Brief filed: 10/24/2023


Farhane v. United States

2nd Circuit Court of Appeals; Case No. 20-1666

Prior Decision

Decision below Farhane v. United States, 77 F.4th 123 (2d Cir. 2023)


The Sixth Amendment requires defense counsel to advise clients about all kinds of reasonably foreseeable immigration consequences, including the risk of denaturalization (followed by deportation) for naturalized citizens like the petitioner who plead guilty to pre-naturalization conduct. Contrary to the panel’s opinion, denaturalization is not a “collateral consequence,” outside of the Sixth Amendment’s ambit. The Supreme Court’s holding in Padilla v. Kentucky, 559 U.S. 356 (2010), that the direct-collateral distinction is “ill suited” to deportation, as deportation is a severe and automatic consequence of a criminal conviction, applies equally to other kinds of immigration consequences—such as inadmissibility, eligibility for naturalization, and denaturalization. Because of their “close connection to the criminal process,” immigration consequences should never be classified as “collateral.” 


Matthew A. Wasserman and Joel B. Rudin, NACDL, New York, NY; S. Isaac Wheeler, Federal Defenders of New York, Inc, New York, NY.

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