ILW.COM - the immigration portal Immigration Daily

Home Page

Advanced search

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network


Chinese Immig. Daily


Connect to us

Make us Homepage



The leading
immigration law
publisher - over
50000 pages of free

Immigration LLC.

< Back to current issue of Immigration Daily

Padilla And Immigration Enforcement

by Harry DeMell

The recent case of Padilla v Kentucky (Sup. Ct.) March 31, 2010 provides a lesson in the area of fair and efficient administration of law. By creating a situation where congress has created draconian solutions to our criminal alien problem, and where the administrative agencies have decided to be hyper vigilant in enforcing and interpreting these laws, they have pushed the judicial branch of our government to bring some sense to the system.

In Padilla the Supreme Court ruled in a seven to two decision that counsel in a criminal case must inform a client whether his plea carries a risk of deportation. This case changes criminal law and because it is retroactive will lead to many tens of thousands of cases being filed in every criminal and immigration court in this country. Those cases will lead to many thousands of appeals.

There is plenty of blame to go around.

The first blame goes to the criminal system. Overworked courts are as interested in numbers as in results. Defendants are encouraged to plead to crimes that they committed or not. Few have any real understanding of the gradations inherit in the criminal context. Often assigned counsel or retained counsel simply believes that their clients are guilty of "something" and want to take the easiest path. The easiest path for the lawyers or the courts can lead to exile for life for an alien defendant and separation from family. These families might be forced into public assistance and a cycle or further crime for other family members. Often prosecutors are more concerned for their political reputation as tough enforcers than in the proper administration of justice.

The second blame goes to Congress. The removal of judicial recommendations against deportation and the ratcheting up of the list of crimes for which there is no relief makes it impossible for judges at every level to administer justice. Congress has effectively removed the right of judges to judge. Why do we have judges if we deny them the right to judge and administer justice?

It is improper from an ethical standpoint and a functional one for congress to emasculate our courts in this manner. Congressmen like to return to their districts and talk tough but what they are really doing is creating an increasingly wooden system.

Blame also goes to the Immigration Court system for increasingly defining the law to call crimes "aggravated felonies" and to restrict the ability of their judges to grant relief in worthy cases. Too many criminal aliens are receiving notices to appear for crimes that should be left alone.

This is not to say that aliens do not deserve to be deported. Many do. But we need a system that can take into account individual issues and allow for more creative relief. One idea would be to give the ability to Immigration Courts to grant an adjournment in contemplation of dismissal. If the alien remains clean for a two year period the removal charges would be dismissed. Don't we trust our judges to grant this relief? In the highly overworked Immigration Court system this relief could lead to a drastic reduction in caseloads and allow those courts to focus on other matters.

The lesson to be learned from this is that a lack of fairness forced the hand of the United States Supreme Court. Now all courts, criminal and immigration, can expect a flood of litigation in this area further taking them away from the fair administration of justice.

Under the United States Constitution, the place where this should be fixed is in Congress. It should not wait for comprehensive immigration reform because that may never happen. The immigration bar along with the criminal bar needs to tackle this separately.

Copyright 2010, by Harry DeMell

About The Author

Harry DeMell is an attorney practicing exclusively in the area of visa, immigration and nationality law since 1977. He is a member of AILA and has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.