The Impact of Immigration Representation on the Quality of Representation

Since the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996), there has been an increased awareness of the need for attorneys to provide legal advice to non-citizens concerning the immigration consequences of a criminal disposition. However, the landscape of providing criminal defense representation to noncitizens dramatically changed when the United States Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that defense counsel has an affirmative duty to advise noncitizen clients as to potential immigration consequences of a guilty plea. Absent such advice, a noncitizen client may raise a claim of ineffective assistance of counsel. In so holding, the Court correctly 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 specific crimes." Padilla v Kentucky, 130 S. Ct. at 1480.

Identifying the Problem

The impact of drastic immigration consequences remains a reality for every noncitizen convicted of a crime. “Non-U.S. citizens, even those in the United States legally, are being removed from the country in record numbers, in many cases for the slightest infractions and often with little or no chance to appeal.” American Justice Through Immigrants' Eyes, American Bar Association, Commission on Immigration, at v. (2004). For noncitizen clients, immigration concerns may impact decisions at all stages of the criminal proceeding from bail applications and plea negotiations to sentencing outcomes and post-conviction relief. Even a relatively minor misdemeanor conviction or pre-sentence diversion alternative may prove detrimental to an immigrant seeking to sustain valid immigration status in the United States. Moreover, in most instances, “[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” Padilla v Kentucky at 1483. For this reason, providing immigration advice to a noncitizen client throughout a criminal proceeding is essential to ensure effective and quality representation.

Providing the Solution to Quality Representation

In keeping with its mission to improve the quality of services provided pursuant to article eighteen-B of the county law, the Indigent Legal Services Board has authorized a competitive grant to support innovative and cost-effective solutions that will promote the development of regional immigration resources. These immigration resources are intended to enhance the provision of indigent legal services by ensuring attorney compliance with the requirements set forth in Padilla v. Kentucky.

To achieve this goal, the Office of Indigent Legal Services supports the development of immigration legal assistance and training intended to improve the overall quality of mandated representation of noncitizens. In addition, this competitive grant will support the establishment of an effective regional protocol that will ensure sustainable Padilla-compliant representation. County governments are encouraged to consult with indigent legal services providers and to submit proposals that incorporate prevailing professional norms and best practices for representing noncitizen clients in criminal and family court proceedings. Requests for proposals in support of this initiative are expected to be issued by the end of 2013.

Promoting Best Practices and Standards of Quality Representation

All clients accused of a crime are entitled to competent legal representation. For noncitizen clients, competent representation includes accurate legal advice as to the potential immigration consequences that may result from a criminal conviction or a family court disposition. In an effort to ensure quality representation, the Office of Indigent Legal Services seeks to develop best practices that will support statewide compliance with requirements set forth in Padilla v. Kentucky and are expected to incorporate many of the well-established recommendations as outlined below.

Standards and Criteria for the Provision of Mandated Representation in Cases Involving a Conflict of Interest, approved by the Indigent Legal Services Board on June 8, 2012.

New York State Bar Association Revised Standards for Providing Mandated Representation (revised 2010)

American Bar Association (ABA) Standards for Criminal Justice, Pleas of Guilty (3d ed. 1999)

National Legal Aid and Defender Association (NLADA) Performance Guidelines for Criminal Representation (1995)

ACCD Best Practices Committee: Assisting Clients with Immigration and Other Civil Consequences (March 7, 2012)

American Bar Association/ National Legal Aid & Defender Association - Post Conviction Relief and Immigration Proceedings: Padilla v. Kentucky and Other Relevant Post Conviction Remedies for Noncitizens (2011 Equal Justice Conference)

New York State Defenders Association, Client Advisory Board: Client-Centered Representation Standards (July 25, 2005)

Helpful Immigration Resources

NON-GOVERNMENTAL ORGANIZATIONS (NGO)

New York State Defenders Association – Criminal Defense Immigration Project (CDIP)

Immigrant Defense Project (IDP)

Defending Immigrants Partnership (DIP)

National Immigration Project (NIP)

Immigrant Legal Resource Center (ILRC)

New York Immigration Coalition (NYIC)

American Immigration Lawyers Association (AILA)

U.S. GOVERNMENT

U.S. Immigration and Customs Enforcement (ICE) - Provides ICE mission statement, ICE Fact Sheets; information on federal government policies and practices and news articles

U.S. Customs and Border Protection (CBP) & U.S. Border Patrol - Provides CBP and US Border Patrol mission statements, information on policies and practices and news articles

US Department of Justice, Executive Office For Immigration Review (EOIR) - Lists Immigration Courts nationwide, immigration decisions, Court Practice Manual, listing of Free Legal Services, immigration court forms and information on accessing the EOIR immigration court hotline.

U.S. Department of State - Provides applications, instructions and forms for the processing of immigration visas abroad

U.S. Citizenship and Immigration Services (USCIS) - Provides USCIS applications, instructions and forms and federal government updates on the processing of immigration applications within the United States.

ICE Detainee Locator – Provides the location of an individual detained in federal immigration custody within the United States.