For the Defense - Volume 1, Issue 3 - 2016 - 21
Broadening Our Interpretation
of Padilla Will Promote More
Immigration-Neutral Plea
Agreements
Wana Saadzoi
IN
the aftermath of the 9/11 bombings,
the Department of Homeland Security
(DHS) started aggressive deportation
of individuals who did not have lawful status in
the United States. The increase in deportation of
noncitizens was intended to protect national security. DHS believes its most important mission is to
remove aliens quickly with criminal convictions.
While DHS zealously expels noncitizens so
that Americans may have an immediate sense of
security, immigration attorneys believe that federal initiatives to secure our porous borders are
slowly tearing apart our society. For example, U.S.
born children are increasingly finding themselves
separated from an undocumented parent that
has been deported because of a conviction for a
nonviolent offense such as DUI or theft.
There was a glimmer of hope for immigration
attorneys in 2010 when the U.S. Supreme Court
decision in Padilla v. Kentucky1 obligated criminal
defense attorneys to advise noncitizens about
the risk of deportation before a guilty plea. The
immigration law community immediately interpreted the holding in Padilla as a reminder that
criminal defense attorneys must advise clients of
the potential for deportation.
This viewpoint advanced the position that the
Padilla decision's singular goal was to promote the
effective assistance of counsel by criminal defense
attorneys representing noncitizens in criminal
courts. Unfortunately, this narrow interpretation of Padilla did not significantly improve the
excessive penalty of deportation for noncitizens
convicted of nonviolent crimes in state court.2
Looking ahead, there must be meaningful
institutional change in both the defense as well
as the prosecution of noncitizens to promote
outcomes proportionate to the charged offenses.
The legal community must adopt a more practical
interpretation of Padilla that includes the duty of
prosecutors to pursue immigration-neutral plea
agreements in the interest of justice.
The Devil is in the Details
In 2015, U.S. Immigration Customs and Enforcement
(ICE) reported removing 139,368 criminals. This
represented 59% of total ICE removals. Whereas,
in 2008, only 31% of total ICE removals were convicted criminals.3
At first glance, these statistics suggest that ICE
is successfully performing the task of deporting
dangerous foreign nationals unlawfully present
in the United States. However, the data presented
by ICE does not distinguish between violent
crimes and nonviolent crimes such as driving
offenses and theft.
Instead, ICE removals are generally categorized by the following three different levels of
enforcement priorities as established by the DHS
Secretary Jeh Charles Johnson in his November 20,
Vol. 1, Issue 3 | For The Defense
21
Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016
Contents
For the Defense - Volume 1, Issue 3 - 2016 - 1
For the Defense - Volume 1, Issue 3 - 2016 - 2
For the Defense - Volume 1, Issue 3 - 2016 - Contents
For the Defense - Volume 1, Issue 3 - 2016 - 4
For the Defense - Volume 1, Issue 3 - 2016 - 5
For the Defense - Volume 1, Issue 3 - 2016 - 6
For the Defense - Volume 1, Issue 3 - 2016 - 7
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