Defending Criminal(ized) “Aliens” After Padilla: Toward a More Holistic Public Immigration Defense in the Era Of Crimmigration

Abstract

The unprecedented U.S. system of mass incarceration and the intensifying merging of criminal and immigration law have devastated individuals, families, and entire communities, especially poor communities of color. Noncitizens who come into contact with the criminal justice system are too often stripped of even the slightest chance of reintegration; returning home means removal to their countries of origin. Removal is often impossible to fight post conviction and is thereby virtually inevitable. And civil immigration legal service providers are not equipped to meet the immense need for immigration representation. Therefore, public defenders are usually the first and last line of legal defense for indigent noncitizens charged with crimes. Indeed, in light of recent U.S. Supreme Court decisions, including its groundbreaking decision in Padilla v. Kentucky requiring that counsel provide affirmative advice on the immigration consequences of criminal dispositions, public defenders must provide effective immigration defense. Padilla can be an opening for public defender offices committed to serving all their clients—citizens and noncitizens alike—to proactively fight for equality and racial justice and defend immigrants’ rights.

This Comment provides the first in-depth exploration of the holistic model of immigration defense within public defender offices. It does so by presenting case studies of two public defender organizations that have developed more holistic models: The Bronx Defenders (Bronx County, New York) and the Office of the Alameda County Public Defender (Alameda County, California). By introducing original information, the case studies emphasize insights and best practices both for immigration defense within public defender offices and for strategies to develop more holistic models. The holistic model of immigration defense is three-fold. First, immigration defense attorneys are embedded within the public defender office, working seamlessly alongside criminal defenders to avoid or mitigate negative immigration consequences. Second, offices provide full services, including direct representation in immigration court, to address clients’ underlying immigration needs. Third, offices organize and advocate for structural reform to roll back mass incarceration and sever the criminal-immigration link. Ultimately, this Comment argues for public defender offices to launch and build more holistic immigration practices.

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By uclalaw