En banc court directs criminal defense lawyers to advise natrualized citizens about certain risks of deportation

The Second Circuit normally hears cases in three-judge panels, drawn randomly from about 20-25 judges, about half of whom are full-time judges in active service. If the three-judge panel rules against you, the only remaining options are the U.S. Supreme Court or en banc review in the Second Circuit, where the dozen or so active judges hear the case as a whole. But that rarely happens. This Court of Appeals hears cases en banc maybe once every other year. This case was decided en banc, and the majority holds that a naturalized American citizen has a constitutional right to be told during their criminal sentencing that a guilty plea might jeopardize their citizenship. 

The case is Farhane v. United States issued on October 31. This issue is divisive enough that the en banc court decided to hear it, and the issue remains divisive, as eight Second Circuit judges held in favor of the plaintiff, and five ruled against him. This case may be on its way to the Supreme Court.

This case arose when the government decided that the plaintiff, a natrualized citizen, was not a person of "good moral character after determining that, among other things, he had lied on his citizenship application about whether he had ever committed any crime for which he had not been arrested. 

In 2010, the Supreme Court said that the Sixth Amendment requires criminal defense counsel to tell her client about the risk of deportation associated with such a plea. That case was Padilla v. Kentucky, 559 U.S. 356 (2010). In the case before the Second Circuit, the court, in a decision written by Judge Carney. holds that a naturalized U.S. citizen facing the risk of deportation following denaturalization proceedings has the same protection enjoyed by  a noncitizen facing the risk of deportation. If the lawyer fails to properly their client of this risk, then the client may argue that he was denied the effective assistance of counsel and avoid the consequences of their guilty plea.

In dissent, the judges state that the Court of Appeals got it "wrong" and that the decision departs from the rule that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review. Even if the government did not raise that objection in prior proceedings in this case, that does not matter, the dissenters state, because courts have discretion to overlook a forfeiture generally.

We do not see much ideological voting on the Court of Appeals: Republican and Democratic appointees often vote together. That is not always the case in en banc cases, where the disputes may have an underlying political overtone or the disagreements on a particular issue are more profound. The ideological make up of this en banc ruling is as follows: voting for the plaintiff: seven Democratic appointees and one Republican appointee. Voting for the government: five Republican appointees.