Jose Padilla had been a lawful permanent resident (“green card-bearer") of the U.S. for more than 40 years when he was arrested for transportation of marijuana. During criminal proceedings, his defense counsel told him that a guilty plea would have no adverse effect on his immigration status as he had been in the country for so long. Unfortunately, his counsel was wrong. In fact Padilla’s offense was classified as an “aggravated felony" under the Immigration and Nationality Act and triggered Padilla’s automatic deportation to his native Mexico.
InPadilla v. Kentucky, the Supreme Court issued a landmark decision holding that criminal defense lawyers must advise their clients about immigration consequences of their criminal charges, and failure to do so is ineffective assistance of counsel. In doing so, the Supreme Court recognized that deportation is an extreme penalty and that noncitizens have a constitutional right to legal advice about the deportation consequences of pleading guilty.
While the ruling is commendable, immigration law is highly nuanced and there are great concerns that claims of ineffective criminal defense would rise dramatically, taxing an already stressed criminal defense and immigration system. It is premature to predict the number of possible claims, but we do know that the Department of Homeland Security detains over 300,000 non-citizens at more than 350 facilities for deportation proceedings annually, the majority of whom have criminal offenses. Just last year, a record 282,000 immigration detainees were deported to their foreign homelands.
Padilla provides an opportunity for the criminal defense and immigration bars to develop new or expand on existing models of collaboration to protect non-citizens’ rights. (The Immigrant Defense Project and Defending Immigrant Partnership in New York is one example.) However, it is not realistic to expect that criminal defense practitioners be as conversant in immigration law as immigration practitioners, and vice versa, given the complexities of both areas of law.
Legal advocates can help by urging federal, state and local governments and private funders to provide support for counsel with expertise in immigration law to work within already overtaxed criminal defense organizations. Several chief defenders have contacted Equal Justice Works staff members inquiring whether Fellows could serve this role bridging immigration practice and criminal defense. In fact, Equal Justice Works has funded fellows doing just this type of work. We need more! Fellowships are an excellent way to ensure the robust implementation of Padilla to protect individuals’ rights. Equal Justice Works staff, board members, alumni and friends are thinking of creative ways to fund and support Fellowships that will ensure that the constitutional protections spelled-out in the Padilla decision come to life. If you have ideas on how to create more of these fellowship opportunities, please let Equal Justice Works staff know.