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


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.

About the Author

Andrés Dae Keun Kwon is a 2016 graduate of the Epstein Program in Public Interest Law and Policy at UCLA School of Law, where he served as Senior Editor of the UCLA Law Review (Volume 63). As recent immigrants from Argentina, Andrés and his family struggled to access effective counsel to navigate a complex, punitive criminal-immigration legal system he now seeks to transform. During his second year of law school, he initiated an effort to strengthen the representation of poor immigrants charged with crimes in Southern California. Starting in September 2016, Andrés will continue to advance this effort as the Equal Justice Works Emerson Fellow at the ACLU of Southern California.

By uclalaw