UCLA Law Review Volume 58, Issue 6


Each year, the UCLA Law Review hosts a Symposium featuring cutting-edge scholarship by leading specialists in an emerging legal field. On January 28, 2011, thirteen scholars engaged in a stimulating and productive conversation on contemporary interplay of criminal law and immigration law. Dean Moran opened the Symposium by welcoming the participants and highlighting the key issues and challenges to be discussed throughout the day. She has graciously agreed to provide her remarks as the Introduction to this Symposium issue.

Why Padilla Doesn't Matter (Much)

The U.S. Supreme Court’s decision in Padilla v. Kentucky heralds a formal breakthrough in the representation provided to immigrants charged with crimes that trigger deportation, and the decision may signal as well the Court’s recognition of plea bargaining’s dominant role in criminal adjudication. There are good reasons to worry, however, that Padilla’s practical impact will be modest, and for many noncitizen criminal defendants, including probably Jose Padilla himself, nonexistent. The Padilla Court suggested that it expected attorneys to use their newly required awareness of law triggering deportation upon a criminal conviction to inform plea bargain negotiation and even change criminal or immigration law outcomes through creative bargains. But the problem for many noncitizen defendants like Mr. Padilla is not simply—and not primarily—their lawyers’ unfamiliarity with immigration law, for which Padilla’s mandate is a remedy. It is, in many cases, the content of the substantive criminal law, of sentencing law, and of limited procedural possibilities for avoiding immigration law’s consequences. None of that law changes with Padilla. Moreover, the widespread, enduring inadequacies of indigent criminal defense in American courts are unaffected by Padilla. As a result, defense lawyers’ abilities to negotiate favorable immigration outcomes for clients are diminished even when the substantive law provides a possibility for doing so.

Illegal Entry as Crime, Deportation as Punishment: Immigration Status and the Criminal Process

In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment required counsel to advise clients pleading guilty that conviction might result in deportation. The Court rested its decision on the idea that this information was important to the client’s decisionmaking process. However, the Court did not explore a stronger reason for developing a more precise understanding of a client’s immigration status: namely, the effect of that status on ordinary criminal prosecutions, such as burglary or assault. This Article proposes that under current law, immigration status can have substantial effects on the criminal prosecution and sentencing of noncitizens for ordinary nonimmigration crimes. This Article examines the position of noncitizens in the United States. For some noncitizens, particularly those without legal status, courts treat unlawful entry or removability as a quasi-crime, negatively affecting the case in ways similar to the effect of a prior criminal conviction. For other noncitizens, particularly but not exclusively those with legal status, the possibility of deportation is treated as a quasi-punishment, which sometimes mitigates other punishments or affects charging decisions if deportation or the overall package of sanctions would be too harsh. This Article proposes that it is consistent both with fairness to all individuals in the United States and with widely accepted principles of criminal justice to consider—carefully—immigration status in the criminal process.

The Right to Deportation Counsel in Padilla v. Kentucky: The Challenging Construction of the Fifth-and-a-Half Amendment

The U.S. Supreme Court’s pathbreaking decision in Padilla v. Kentucky seems reasonably simple and exact: Sixth Amendment norms were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. This was a very significant move with virtues of both logic and justice. It will likely prevent many avoidable and wrongful deportations. It may also help some deportees who have been wrongly or unjustly deported in the past. However, the apparent exactness of the case, as a Sixth Amendment decision, raises fundamental constitutional questions. For more than a century, courts have formalistically distinguished between two consequences of criminal convictions: the punishment meted out in criminal courts and deportation. The former is, of course, a criminal sanction, while the latter is said to be civil or, at most, quasi-criminal. This Article suggests that Padilla has implicitly challenged this model with potentially powerful consequences. Padilla cannot be squared with the historical, formalist relegation of deportation to the realm of civil collateral consequences in which there is no clear constitutional right to counsel. This Article thus seeks to elucidate how the Padilla opinion might model a viable constitutional reconciliation between the Court’s historical formalism and its current realism. This model bridges Fifth and Sixth Amendment jurisprudence and limns a new constitutional norm for deportation that we might call the Fifth-and-a-Half Amendment (Amendment V1⁄2). It embodies both the flexible due process guarantees of the Fifth Amendment and—at least for certain types of deportation—the more specific protections of the Sixth Amendment. Amendment V1⁄2 is certainly not a perfect solution. However, so long as deportation is formalistically understood as civil and nonpunitive while, in reality, being directly tied to the criminal justice system and highly punitive in effect, it is a legitimate and necessary construct.

Padilla and the Delivery of Integrated Criminal Defense

The traditional starting point for Sixth Amendment jurisprudence is the individual defense attorney, acting alone. Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with an image of the lawyer as a team manager consulting with other professionals to provide integrated legal services. Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues. Some of those methods involve contracting out the immigration work to specialists outside the organization; others entail bringing the immigration expertise inside the organization. The Padilla holding gives some impetus to the insider strategy. It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue. As a result, in close cases, defender organizations will now become somewhat more likely to bring this function in-house, where it will be easier to monitor the quality of the work. In this way, Padilla tilts the field toward larger defender organizations with greater specialization of function and more coordination of effort among attorneys—in short, toward a more bureaucratic criminal defense.

Undocumented Criminal Procedure

For more than two decades, criminal procedure scholars have debated what role, if any, race should play in the context of policing. Although a significant part of this debate has focused on racial profiling, or the practice of employing race as basis for suspicion, criminal procedure scholars have paid little attention to the fact that the U.S. Supreme Court has sanctioned this practice in a number of cases at the intersection of immigration law and criminal procedure. Notwithstanding that these cases raise similar questions to those at the heart of legal and policy debates about racial profiling, they are largely overlooked in the criminal procedure scholarship on race and policing. We refer to these cases as the undocumented cases. While there are a number of doctrinal and conceptual reasons that explain their marginalization, none of these reasons are satisfying given the importance of the undocumented cases to debates about race, racial profiling, and the Fourth Amendment. The undocumented cases import a pernicious aspect of immigration exceptionalism into Fourth Amendment doctrine—namely, that the government can legitimately employ race when it is enforcing immigration laws. In so doing, the cases constitutionalize racial profiling against Latinos and unduly expand governmental power and discretion beyond the borders of immigration enforcement. This weakens the Fourth Amendment and enables racial profiling in the context of ordinary police investigations.

Litigation at Work: Defending Day Labor in Los Angeles

Local opposition to day laborers is built upon a standard diagnosis of the day labor “problem” and a common approach to its “remedy.” The diagnosis views day labor as a public nuisance that imposes negative externalities on a locality by disrupting normal patterns of business, traffic, and pedestrian exchange. The remedy involves the enactment of new land use regulations, known as antisolicitation ordinances, designed to remove day laborers from the street corners—thereby undermining their ability to earn a living. Such ordinances regulate immigration indirectly by criminalizing conduct engaged in disproportionately by immigrant workers. Their proliferation, in turn, has invited a specific type of legal challenge focused on the deprivation of day laborers’ First Amendment right to seek work. This Article examines a pivotal struggle in the national day labor movement: the two-decade long legal campaign to contest antisolicitation ordinances in the greater Los Angeles area. It asks whether and how litigation—often portrayed as a nemesis of social movements—has advanced the day laborers’ cause. What it shows is that litigation has been an indispensible social change tool in the fight for day laborers’ rights, albeit one that carries inherent risk. On the positive side of the ledger, the Los Angeles day labor campaign has drawn upon strong legal capacity to mobilize a rights strategy, coordinated with grassroots organizing, against the backdrop of limited political options. It has thus avoided many of the familiar pitfalls of social change litigation in successfully challenging key ordinances. Yet, despite its success in preserving public space for day labor solicitation, the campaign’s outcome rests in the hands of a federal appellate court, underscoring a fundamental social change reality: Even the most sophisticated litigation campaign ultimately hinges on the presence of sympathetic decisionmakers in the court of ultimate authority.

Doing Time: Crimmigration Law and the Pitfalls of Haste

Crimmigration law wastes one of the law’s most valuable tools: time. It eschews the temporal gauges that criminal law and immigration law rely on to evaluate who should be included or expelled from society. Instead, crimmigration law narrows the decision whether to exclude or expel the noncitizen from the nation to a single moment in time: the moment of the crime that makes the noncitizen eligible for deportation or incarceration for an immigration-related offense. This extraordinary focus on the moment of the crime conflicts with the fundamental notion of the individual as a collection of many moments composing our experiences, relationships, and circumstances. It frames out circumstances, conduct, experiences, or relationships that tell a different story about the individual, closing off the potential for redemption and disregarding the collateral effects on the people and communities with ties to the noncitizen. This Article critiques crimmigration law’s uniquely cabined approach to the temporal aspects of decisions about membership. It explores how crimmigration law wastes the potential for time to usefully evaluate a noncitizen’s connection to the community, the advisability of expulsion, and the potential for inclusion. By establishing permanent expulsion as the default consequence, crimmigration law ignores the potential for reintroduction into the community that criminal sentencing and relief from deportation contemplate. Instead, it combines and heightens the exclusionary power of criminal and immigration law. Focus on that moment has the effect of flattening the hierarchy of immigration status—from permanent resident to unauthorized migrant—that has traditionally informed the level of constitutional and statutory rights granted to individual noncitizens. The Article explores solutions to this temporal stasis, examining the benefits and costs of resurrecting a statute of limitations for crimmigration law.

Local Immigration Prosecution: A Study of Arizona Before SB 1070

Arizona’s Senate Bill 1070 has focused attention on whether federal law preempts the prosecution of state immigration crime in local criminal courts. Absent from the current discussion, however, is an appreciation of how Arizona’s existing body of criminal immigration law—passed well before SB 1070 and currently in force in the state—functions on the ground to regulate migration. Drawing on statistical data, prosecution policies, trial-level court records, and interviews with stakeholders, this Article is the first to investigate the practice of local immigration prosecution. It does so in the hotbed of immigration enforcement—Maricopa County, Arizona—through a detailed case study of the implementation of a 2005 Arizona alien smuggling law. Specifically, this Article reveals four key aspects of the national immigration system that have shifted in the face of state criminalization: the functional definition of immigration crime, the breadth of state immigration enforcement authority, the allocation of federal resources for criminal prosecution, and the exercise of executive control over immigration policy. Through this analysis, this Article shows how Arizona, despite the formal prohibition on state and local immigration regulation, has redefined and restructured the federal system for punishing immigration crime. In so doing, this Article fosters a richer and more accurate understanding of the role of the local prosecutor in immigration federalism.

The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil–Criminal Line

This Article starts by analyzing the conventional wisdom, crystallized in the Ninth Circuit’s 1983 decision in Gonzales v. City of Peoria, that state and local law enforcement officers do not require express federal authorization to make arrests for criminal violations of federal immigration law. This view, I explain, is based on overreliance on the line between civil and criminal. Even if a state or local arrest for an immigration crime still leaves federal prosecutors with substantial discretion not to bring criminal charges, it is highly likely that the federal government will force arrestees to leave the United States through the civil removal system, where much less discretion has been exercised. In immigration law, the discretion to arrest has been the discretion that matters. As long as this remains true, state and local arrest authority for immigration crimes reflects assumptions that have the potential to supersede much federal control over immigration enforcement. This consequence of state and local arrests assumes great practical importance when the lessons from Gonzales are applied to federal programs—such as § 287(g) agreements and Secure Communities—in which state and local nonimmigration arrests expose noncitizens to federal immigration enforcement. Though federal decisionmakers may exercise greater and more regularized discretion in response to a larger state and local role, such federal discretion will be fundamentally reactive. Any federal policy that allows state and local governments to be gatekeepers—to permit state and local priorities to decide which noncitizens will be exposed to federal immigration enforcement—risks abdication of federal authority over immigration.

Moving Toward Subfederal Involvement in Federal Immigration Law

In Chamber of Commerce v. Whiting, the U.S. Supreme Court decided that state governments could mandate compulsory enrollment in the otherwise voluntary federal E-Verify program. Though it deals primarily with employment of unauthorized workers, this case raises broader questions of the role of federalism in the current immigration regime. State and local entities continue to engage in immigration regulation because of their dissatisfaction with the federal approach and because of the impacts felt at the community levels. Looking to both the history of subfederal predominance and the current de facto tolerance of subfederal involvement provide perspective on the benefits of a system that contemplates a larger subfederal role. Using that as a launching point, this Comment proposes a new juridical approach in the hopes of allowing for greater subfederal involvement while protecting federal and individual interests.