As a lawyer in Chile, I work in a legal clinic that provides services to immigrants. After working as a legal intern for the National Immigrant Justice Center for the past five months, I believe that despite some imperfections, there is one important area where the U.S. immigration system can serve as a model for my country: the recognition that everyone, including immigrants, have a right to effective assistance of counsel.
In Chile, our clients do not have the chance, promised by the U.S. Supreme Court’s 2010 ruling in Padilla v. Kentucky, to receive advice about the immigration consequences of criminal guilty pleas. They also do not have opportunities to rectify their situations if they are not properly advised.
Because of Padilla’s potential to serve as a model for protecting immigrant rights internationally, it is critical that it is implemented in the U.S. justice system in a meaningful way. Unfortunately, during my time at NIJC I have seen how the system still has plenty of room for people to fall through the cracks.
Pedro* came to the U.S. from Cuba in 2008, and lived here as a lawful permanent resident until his arrest by immigration authorities earlier this year. For the past three years, he had been studying and working to help his mother.
Pedro was accused of battery following a fight outside a bar where someone was hit on the back of his head. He maintains that he was not the perpetrator, but that he struggled when he was questioned by police because he speaks limited English. He was arrested and released the next morning. When it eventually came time to consider a plea agreement, he kept in mind his private attorney’s advice: If he signed the agreement, after three years of good behavior the conviction would be erased from his record. Pedro was willing to comply. He had never been in legal trouble before and he thought that it would be easy to spend three years obeying the law. Pedro signed the agreement and went home thinking that his nightmare was over. But a few days later, ICE agents knocked on his door to arrest him. The crime to which he had pleaded guilty made him removable from the United States. Nobody had mentioned that important consequence to him.
The Supreme Court ruled in Padilla that the adequate assistance of counsel in defending against a pending criminal prosecution requires advising on the immigration consequences for noncitizen defendants. As a matter of federal law, 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 certain crimes. When the deportation consequence is clear, the Court found, the duty to give correct advice is equally clear.
This decision was a successful result of strategic litigation and human rights advocacy. The Padilla case recognized a fundamental right, particularly for immigrants: the right to an effective defense in a criminal prosecution.
But, as Pedro’s story shows, there is still a long way to go to ensure that all criminal defense attorneys understand their obligation to provide appropriate immigration advice. Re-opening a criminal case to invalidate a plea agreement based on ineffective counsel is a long process and, in most cases, not an affordable option for immigrants in detention centers. Receiving accurate advice the first time is of paramount importance. Pedro, realizing the financial bars and unable to give up more of his life in immigration custody for an uncertain result, accepted a deportation order from the immigration judge.
NIJC’s Defenders Initiative trains and provides individual phone and email case consultations to state and federal criminal defense attorneys nationwide who have questions about their client’s immigration consequences. I hope Chile can work toward this good example of recognition for the rights of immigrants.
Macarena Rodriguez Atero is an intern with the National Immigrant Justice Center’s detention project.
*Name has been changed to protect individual's privacy.
Photo credit: Horia Varlan/Creative Commons