Our organization, the Immigrant Defense Project works to fight the human rights crisis of  mass detention and deportation of immigrants in the United States. Since the last major immigration law reform, the criminal legal system has become an increasing driver of immigrant detention and deportation. Under current immigration law, a wide range of convictions can result in deportation, including mandatory deportation for convictions for which a person did not serve any jail time. In addition, state criminal legal systems are used as an immigration policing mechanism, resulting in the deportation of people never convicted of any crime. 

In the 2010 case, Padilla v. Kentucky, the Supreme Court recognized that given the entwinement of the criminal and immigration systems, the U.S. Constitution requires defense attorneys incorporate immigration penalties into their advice to and negotiation on behalf of non-citizen clients. The law determining these penalties is immensely technical and complicated, creating a challenge for public defenders who already face increasing complexity within the criminal law. Public defenders have used a number of service provision protocols to try to meet their obligation but these systems are understudied. Without updated information about what is needed to ensure public defenders can meet their constitutional obligation to noncitizen clients, the advocates doing this work are less able to present a compelling case to ensure the work is adequately resourced. This contributes to the likelihood that immigrants who have contact with the criminal legal system, particularly those poor non-white immigrants likely to rely on public defenders, will face deportation. 

In 2009, IDP and the New York State Defender Association published a report on setting up an immigrant service plan in a public defender office. However, this report has not been updated despite the fact that there have been numerous developments impacting the work since then.  Next year marks the 15th anniversary of Padilla v. Kentucky which presents an opportunity to update this report. Similar to the National Public Defense Workload Study Report, published last year, which revises the standards for modern criminal defense practice, we hope to create an advocacy tool that can help public defenders advocate for resources to serve noncitizen clients in need of immigration advice. 

There are three potential activities that could help us achieve this goal:

This project will be a success if we are able to provide updated guidance to the field about how public defenders are currently providing mandated advice to and negotiation for noncitizens and articulate actionable strategies for ensuring all noncitizens have access to criminal defense that minimizes the likelihood of deportation at the level of the individual defender office and more broadly.