Academic journal article Harvard Law Review

"A Prison Is a Prison Is a Prison": Mandatory Immigration Detention and the Sixth Amendment Right to Counsel

Academic journal article Harvard Law Review

"A Prison Is a Prison Is a Prison": Mandatory Immigration Detention and the Sixth Amendment Right to Counsel

Article excerpt

INTRODUCTION

Roberto Cuellar-Gomez, a citizen of El Salvador, was admitted to the United States as a lawful permanent resident on April 4, 1992. (1) Nearly sixteen years later, on January 3, 2008, he was convicted, without the assistance of counsel, of misdemeanor possession of marijuana. (2) After a second conviction for marijuana possession eight months later, the Department of Homeland Security (DHS) concluded that Cuellar-Gomez had committed a "drug trafficking crime," and thus an "aggravated felony," within the meaning of the Immigration and Nationality Act (3) (INA), and initiated removal proceedings against him. (4)

Cuellar-Gomez's story highlights a unique problem facing noncitizens accused of minor crimes. Under longstanding Supreme Court precedent established in Scott v. Illinois, (5) criminal defendants are not entitled to invoke the Sixth Amendment's guarantee of the right to counsel when they are facing minor charges that do not carry the threat of jail time. (6) As a result, many states and municipalities do not provide counsel to indigent defendants in such circumstances. (7) But those same minor crimes can render a noncitizen deportable and subject to mandatory detention pending removal. (8) Because there is no constitutional right to counsel in immigration proceedings, (9) the end result is that noncitizens may be tried, convicted, confined in immigration detention facilities for months or years, and finally deported without the right to the assistance of counsel at any point.

Some commentators, noticing this problem, have argued that the Supreme Court's decision in Padilla v. Kentucky (10) implicitly altered this analysis. In Padilla, the Court held that the Sixth Amendment's guarantee of the effective assistance of counsel required an attorney representing a noncitizen to warn his client of the potential immigration consequences of a guilty plea. (11) In so holding, the Court rejected the view, previously universally accepted among lower federal courts, that a sharp distinction between the direct consequences of a criminal conviction and its collateral consequences (12) delineates the boundary of the Sixth Amendment. (13) Instead, the Court recognized that "deportation is an integral part--indeed, sometimes the most important part--of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." (14) Alice Clapman notes that Padilla is thus in tension with Scott's insistence on prison time as the only criminal penalty that matters for Sixth Amendment purposes. She argues that Padilla should prompt a reinterpretation of Scott according to which prison time is merely a "proxy for a deprivation so severe that it could only be imposed after a full adversarial process." (15) Professor John King would go even further, arguing that after Padilla, the right to counsel should extend to "any indigent facing criminal charges." (16)

This Note takes a different approach. While there can be little doubt that Padilla represents a watershed moment in the Court's Sixth Amendment jurisprudence, it is also not obvious that in laying down a rule governing standards for the effective assistance of counsel, the Court would have understood itself to be expanding the scope of the underlying right. Both the Supreme Court and lower courts have in some circumstances found a right to the effective assistance of counsel even in the absence of an underlying right to the appointment of counsel. (17) Standing alone, therefore, Padilla is unlikely to provide a solid foundation upon which to erect a universal right to the appointment of counsel for noncitizens facing criminal charges that may result in deportation. There is, however, another aspect of the modern immigration enforcement regime that arguably provides a sounder basis for such a right: mandatory detention. Because the INA mandates that nearly all noncitizens who are deportable because of criminal convictions--even for extremely minor crimes--be detained during the pendency of their deportation proceedings, those criminal convictions do, for all practical purposes, result in the "actual imprisonment" required by Scott. …

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