Academic journal article Fordham Urban Law Journal

You Are the Last Lawyer They Will Ever See before Exile: Padilla V. Kentucky and One Indigent Defender Office's Account of Creating a Systematic Approach to Providing Immigration Advice in Times of Tight Budgets and High Caseloads

Academic journal article Fordham Urban Law Journal

You Are the Last Lawyer They Will Ever See before Exile: Padilla V. Kentucky and One Indigent Defender Office's Account of Creating a Systematic Approach to Providing Immigration Advice in Times of Tight Budgets and High Caseloads

Article excerpt

Introduction
  I. The Factual Background, by the Numbers
     A. Immigration Enforcement
     B. The Public Defender's Office
     C. Immigration Advice and PD-11
 II. Building a Better System Without New Funding
     A. Information Gathering Component
     B. Advice Component
     C. Staff Development Component
III. The Future
Conclusion

INTRODUCTION

The recent decision in Padilla v. Kentucky (1) reaffirmed what criminal defense lawyers have known for years: "It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation...." (2) This task is particularly daunting when faced with high caseloads and shrinking budgets. Public defenders must nevertheless find a way to ensure that every noncitizen client is properly advised under the standards of professionalism as reflected in Padilla. (3)

This Article shares the experience of one public defender's office regarding the intermediate steps it took to create a systematic approach to advising clients on the immigration consequences of their pleas. In sharing our experience, we do not purport to set forth the standard for all criminal defense lawyers or even other indigent defense lawyers. (4) As national immigration advocacy organizations have recognized in the wake of Padilla, "what works best for one office or program may not work best for another." (5) Our hope is that our experience can serve as a point of departure for other indigent defense offices in Florida and other states.

This Article expands on issues presented at the Padilla and the Future of the Defense Function conference, sponsored by the National Association of Criminal Defense Lawyers ("NACDL") and the National Legal Aid and Defender Association ("NLADA"), and cosponsored by the American Bar Association Criminal Justice Section Task Force on Comprehensive Representation. This Article provides an overview of how one Florida public defender's office is attempting to meet its professional and ethical obligations as reflected in Padilla, and also addresses the Padilla implications in Florida, where, every year, tens of thousands plead guilty or no contest in misdemeanor cases without adequate counsel.

I. THE FACTUAL BACKGROUND, BY THE NUMBERS

A. Immigration Enforcement

The level of federal immigration enforcement activity has increased radically in the past three years. Today, federal immigration enforcement activity prioritizes the removal of noncitizens with criminal convictions. The United States Immigration and Customs Enforcement agency ("ICE") boasts proudly that "[f]or two years running, ICE has removed more aliens than it did under the prior Administration." (6) Under the Obama Administration, ICE has removed more than one million noncitizens. (7) Allegedly, ICE has a quota of 404,000 people to remove during this year alone. (8) In the same vein, there are 300,000 open removal cases clogging immigration courts. (9) Currently, 34,000 people are being held in immigration detention facilities at a cost of $166 per person per day, for an approximate total of $5.5 million per day. (10) While removal is a civil sanction, the detention setting is that of a criminal proceeding. (11) The seemingly rapid-fire pace of removals and the significant detention population are likely due to the federal government's Secure Communities program.

Secure Communities is a "biometric information sharing capability" that works in tandem with local jail facilities' booking processes. (12) When a person is booked and fingerprinted into a state or county jail, the Secure Communities program operates to automatically and simultaneously check an arrestee's fingerprints against the Federal Bureau of Investigation's criminal history records as well as the Automated Biometric Identification System ("IDENT"), maintained by the Department of Homeland Security ("DHS"). (13) If the fingerprints match fingerprints in these systems, a notification to ICE is automatically generated and ICE takes enforcement action as it deems appropriate. …

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