Over Dissent, Circuit Embraces Strict “Collateral/Direct” Distinction for Ineffective Assistance of Counsel Claims

In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that attorneys must advise their noncitizen clients of the risk of deportation arising from criminal conviction, and that the failure to do so violates the Sixth Amendment’s guarantee of effective assistance of counsel. That decision called into question longstanding precedent in the Second Circuit and elsewhere that failure to advise clients regarding “collateral,” rather than direct, consequences of conviction cannot constitute ineffective assistance. The Second Circuit’s decision in Farhane v. United States is the first published decision in which the Circuit has addressed the important question of Padilla’s impact on that precedent. Over Judge Carney’s dissent, the Circuit (Walker, Wesley) read Padilla narrowly, reaffirming that beyond advising noncitizens about deportation, attorneys are not obligated to advise clients about even the most serious collateral consequences of conviction.


In 2002, Abderrahmane Farhane became a naturalized U.S. citizen. In the course of his naturalization proceedings, he told the government that he had never knowingly committed a crime for which he had not been arrested—even though, in prior months, he had conspired with others to send money to mujahideen in Afghanistan and Chechnya. Four years later, Farhane pleaded guilty to providing false statements to federal law enforcement and conspiring to commit money laundering in connection with that conspiracy. He was sentenced to 156 months’ imprisonment, and was released from custody in 2017.

In 2018, the following year, the government sought to revoke his citizenship pursuant to 8 U.S.C. § 1451(a), which allows for denaturalization of persons whose citizenship was procured illegally, by concealment of material facts, or by willful misrepresentation. Farhane then filed a habeas petition seeking to vacate his plea, conviction, and sentence on the ground that his counsel—by failing to warn him of the risk of denaturalization and deportation—had provided ineffective assistance. The district court denied the petition, concluding that this failure was not objectively unreasonable.

The Majority Opinion

The Second Circuit affirmed, and the decision produced three separate opinions: a majority opinion authored by Judge Walker; a concurrence also authored by Judge Walker; and a dissent from Judge Carney.

The majority opinion began from the premise that “collateral” consequences of conviction—consequences that do not flow directly from a judgment of conviction, unlike those direct consequences that have “definite, immediate and largely automatic” effects on the range of a defendant’s punishment—are categorically removed from the scope of the Sixth Amendment. According to the majority, this categorical exclusion arises in part from the text of the Sixth Amendment, which guarantees a defendant counsel only in connection with his “criminal prosecution[.]” The exclusion also arises out of necessity, owing to the practical recognition that criminal defense attorneys may not possess expertise on legal subjects other than criminal law, including the wide variety of civil consequences that might accompany a conviction. Pursuant to this categorical/direct distinction, ineffective assistance of counsel with respect to collateral consequences can only be established if an attorney “affirmatively misadvises” a defendant, and not if the attorney simply fails to advise the defendant about them.

The majority opinion acknowledged that in Padilla, the Supreme Court held that the Sixth Amendment required counsel to advise a client whether a guilty plea carried a risk of deportation—and, in the process, observed that the Supreme Court had not previously distinguished between direct and collateral consequences in defining the scope of counsel’s assistance obligations. However, the majority emphasized both the uniformity of this distinction among the Circuits, and that the Supreme Court had not “reject[ed] the direct/collateral framework altogether,” but deemed it inappropriate in the context of the “particularly severe” and “near-automatic” sanction of deportation, which is particularly difficult to classify as either a collateral or direct consequence. The majority held that “Padilla’s ‘chink’ in the otherwise solid wall of precedent does not justify the wholesale abandonment of the direct/collateral distinction,” and that the Second Circuit’s “pre-Padilla precedents” should apply. The majority acknowledged that it could not “rule out that there may be other apparently collateral consequences that are so severe and automatic that they are, like deportation, ‘ill suited’ to the [direct/collateral] framework,” but denied that it was appropriate to address the applicability of this distinction “consequence by consequence,” as that would defeat its utility in offering a framework to counsel when advising criminal-defendant clients.

The majority did consider whether denaturalization constituted this sort of “severe and automatic” “apparently collateral consequence.” Though it acknowledged that denaturalization is severe, the majority reasoned that civil denaturalization “lacks th[e] ‘automatic relationship’” that deportation has with the criminal conviction of noncitizens, as it is not dependent on the fact of conviction and must be initiated by separate civil proceedings. Thus, because civil denaturalization was a collateral consequence, Farhane’s counsel could not have been ineffective for failing to warn him of it. Further, the majority concluded that counsel was not obligated to warn Farhane of the risk of deportation that would follow from such denaturalization proceedings, as this was a possible consequence of those collateral proceedings, not the criminal conviction itself.

The Concurring Opinion

In a separate concurrence, Judge Walker also concluded that Farhane’s ineffective assistance claim would lack merit under the analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984), that would have governed the claim had it not been categorically excluded on the ground that it concerned a collateral consequence. That Strickland framework asks whether (1) counsel’s representation was objectively unreasonable; and (2) if so, whether the defendant suffered prejudice. Judge Walker, addressing only the first prong, noted that denaturalization proceedings were “extremely rare” at the time of Farhane’s plea; that ABA standards did not specifically mention denaturalization among the immigration consequences about which lawyers should advise their clients; and that Farhane’s counsel may have been unaware of when Farhane was naturalized or whether Farhane may have lied during his naturalization. Further, because Farhane’s plea occurred pre-Padilla, Farhane’s counsel would have believed that he was not required to advise about collateral consequences like denaturalization.

The Dissenting Opinion

Judge Carney authored a lengthy dissent, arguing that the majority embraced an inappropriately restrictive interpretation of Padilla (and did so without engaging in sufficiently careful examination). While Judge Carney disclaimed any contention that Padilla did away with the distinction between direct and collateral consequences for purposes of ineffective assistance claims, she emphasized that under Padilla, the direct/collateral framework should not apply automatically, and that denaturalization “shares with deportation the severity and entanglement with the criminal process that the Padilla Court relied on to conclude that risk of deportation was a poor fit for consideration under that framework.” It was undisputed that denaturalization was a severe penalty akin to deportation; moreover, a naturalized citizen’s guilty plea to conduct that preceded naturalization “carries with it an automatic and heightened risk of denaturalization,” thus “enmesh[ing]” denaturalization into the criminal justice system just like deportation. Judge Carney also disputed the majority’s claimed distinctions between deportation and civil denaturalization, pointing out that both may never occur following conviction and that both can occur without a criminal conviction.

Further, she concluded that, under the Strickland standard, counsel’s failure to advise was objectively unreasonable. Judge Carney observed that under prevailing norms as of the time of the plea, counsel knew that they had to advise clients of immigration consequences, including the risk of deportation—which plainly followed a risk of denaturalization, and, in some cases, denaturalization specifically. Judge Carney also disputed the suggestion, in Judge Walker’s concurrence, that counsel lacked reason to know of the potential for denaturalization. Judge Carney would have vacated the district court’s order address prejudice prong.


The majority and dissent highlight the difficulty in articulating a practical framework to guide attorneys about their obligations to advise clients while ensuring that clients receive advice about the consequences of conviction that may be most important to them. The resolution for which the majority opted, while superficially of appealing utility, is deceptive: as Judge Carney’s dissent discusses, the distinction between collateral and direct consequences is not so easy to draw, and courts do not agree on how to draw that distinction. It also leads to strange outcomes: as a result of the Farhane decision, noncitizens must be advised that they can be deported as a result of their convictions, but naturalized citizens are entitled to no such information from their counsel. Whether required by the Sixth Amendment or not, defense counsel who represent defendants facing any immigration-related consequences of conviction are doing the right thing when they help their clients understand those potential consequences.

For several reasons, we expect that this decision will not be the last work on the propriety of the direct/collateral framework. First, although Judge Carney was an active judge at the time of argument, all three members of the panel are now senior judges—raising the possibility of en banc rehearing. Although the Circuit has historically only held rehearing en banc in one or two cases each year, the high stakes of the opinion for certain defendants and the Court’s determination to follow pre-Padilla precedent make this case seem likely to catch the attention of the other judges on the Court.

Second, we have seen recently that the Supreme Court is willing to scrutinize the Second Circuit’s decisions in criminal law cases, with three notable reversals last term. See Lora v. United States, 599 U.S. 453 (2023); Percoco v. United States, 598 U.S. 319 (2023); Ciminelli v. United States, 598 U.S. 306 (2023).

Third, in one of those cases, Percoco v. United States, the Supreme Court expressed concern about the Second Circuit’s continued adherence to a decision, United States v. Margiotta, 688 F.2 108 (2d Cir. 1982), that had been expressly overruled by the Supreme Court in McNally v. United States, 483 U.S. 350 (1987). The Court’s insistence in Farhane on following pre-Padilla decisions seems no more appropriate than was the continued reliance on Margiotta. Whether the current Supreme Court is interested in policing compliance with Padilla is another matter. This is especially uncertain given that its author Justice Stevens has retired and that Chief Justice Roberts, Justice Alito, and Justice Thomas all declined to sign onto the majority opinion (the first two concurred on more narrow grounds and the latter joined Justice Scalia’s dissent).


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