How Padilla has Helped Realize Gideon’s Promise
Three years ago, I went to a training sponsored by the Defending Immigrants Partnership (DIP) designed to help public defender organizations sort through the various models available to implement Padilla. The most effective option presented was to have a full-time immigration lawyer on staff. What we didn’t fully realize was that it takes more than a staff immigration lawyer to change the culture in the office. Like other major changes, it takes on-going education, letting down our guard relative to the immigration lawyers/issues, and the recognition that we still face obstacles after several years. That is the reason I look forward to NACDL’s midwinter meeting this week. DIP is co-sponsoring an immigration track, where public defenders and immigration lawyers can share ideas about how to better represent our clients facing potential immigration consequences.
We are fortunate to have an outstanding immigration lawyer, Kathy Moccio, on staff. Before she came on board, we had immigration training to try to teach us how to properly advise our clients. But the answers to many of our questions were, “It depends.” While most of us could figure out what an aggravated felony and a crime of moral turpitude were, the “it depends” stuff was a mystery. The truth is that immigration is a complicated, nuanced, specialized area of law. It is not enough to know how to define the various types of offenses under federal immigration law; the client’s status is a critical aspect of the equation. If we are serious about giving our clients accurate information, we need an immigration lawyer who knows what questions to ask.
We then confronted the problem of identifying clients with potential immigration issues without excessively burdening our already overworked lawyers. We were familiar with various screening forms, but they were complicated and time consuming. To avoid the consternation of implementing the use of “yet another form,” we designed a new one, which we called the “green sheet.” Beautiful in its simplicity, the one page form has only seven questions. We require our lawyers to use the form to screen every client on every case because we don’t want to profile our own clients. The first question asks where the client was born. If the answer is the United States, the lawyer simply records the response and puts the form in her file.
If the client was born someplace else, the lawyer asks the remaining six questions and emails the form to Kathy, or places it in her mailbox. Kathy will then talk to the client (with an interpreter, if needed) to obtain relevant information, as well as any helpful documentation. Ultimately, Kathy prepares a written summary of the potential immigration consequences of various dispositions to give to the lawyer. While the lawyer will try to negotiate a deal that protects the client’s immigration status, sometimes it just isn’t possible. In those situations, the best we can do is to provide our clients with the information they need to make an informed decision. After documenting the conversation with the client in the file, we can keep any damaging information out of our record. Assuring the bench that our files are properly documented has been critical in keeping the judges from making damaging inquiries on our records during a plea, sentencing, or other stage in litigation.
I mentioned that we require our lawyers to screen every client on every case, but this policy was not without controversy. While most of our lawyers welcomed the opportunity to give our clients accurate, detailed information some (often because of not recognizing the full impact of Padilla) did not. They perceived it as an unnecessary burden on top of their already overwhelming case loads.
During the past three years, three things have helped staff accept, and even embrace, the policy. The first hurdle was overcoming the suspicion some lawyers had that Kathy was there to second guess their decisions on cases. No lawyer wants to be told that she needs to get a disorderly conduct on the first degree criminal sexual assault charge to preserve her client’s ability to remain in the country. Or, at least, no lawyer wants to feel judged by an immigration lawyer because she was unable to get that plea offer. Because Kathy has worked really hard to understand the dynamics of what it “means” to be a public defender, she has earned the trust of our staff. That trust is critical to a healthy working relationship between the immigration lawyer and the public defender. We celebrate our successes as a team and we lament sadness as a team.
The second factor that has motivated some staff get on board is the consequence of not screening every client on every case. Some clients, whose cases were not properly screened, are coming back on new cases, which are screened. Other clients are making motions to set their convictions aside because they are now being exposed to immigration consequences they were never warned about. And judges have been willing to set those convictions aside because of ineffective assistance of counsel claims. Lawyers recognize that Padilla is not just an office policy or guideline. There are real consequences of not making immigration determinations and clients’ convictions/pleas have been set aside.
The most effective factor in changing the office culture has been to attach stories to our successes via staff email. For example, we represented a 17 year old juvenile in a delinquency proceeding who was brought to this country by his parents, who then abandoned him. Our client had been working hard to support his girlfriend and their infant (U.S. citizen) child. After the court appointed us to represent this young man, our lawyer referred the case to Kathy for screening. When Kathy realized the client qualified for legal status, she contacted an organization, with whom she worked hard to develop a partnership, to represent him in immigration court. They took his case and convinced immigration to recommend that our incredibly surprised and grateful client receive a green card. He is now legally allowed to work, to get a driver’s license, and to obtain educational benefits. And, perhaps most importantly, he can be a dad to his child without fear that he will be swept away and deported to country he’s never known.
Another success story came out of a referral on a felony probation violation. We were appointed to represent the client because he could no longer afford to pay his private lawyer. The client pled guilty to a felony drug case without being properly advised, by the private lawyer, that he would face deportation. To prepare properly for a motion to set aside the drug conviction, our lawyer had a paralegal find as much documentation on the original case as she could. After the paralegal discovered that the drugs were never tested by a lab and that they had been destroyed years ago, the prosecutor agreed to dismiss the case. The client is now able to stay in this country with his wife and children.
This last story demonstrates that, although the client’s circumstances may seem bleak; hard, tenacious work can still bring success. We were appointed to represent an undocumented single parent of three U.S. citizen children on a DWI charge. Although she was the victim of domestic assault, by the time we saw her she had an ICE hold and an order for deportation. We screened her, fought her DWI case, and found an immigration lawyer to represent her. She won status as a crime victim and was released by ICE. In other words, immigration dropped the hold and rescinded the deportation order. Since then, she has completed her GED and she cares for her granddaughter while her daughter attends college.
These are just three stories of clients for whom our staff have achieved terrific results. Hearing these successes week after week makes staff feel really good about what we do. And feeling good about making a difference is critical for public defenders too often beaten down by the daily tragedies to which they are exposed. Properly implementing Padilla can be a critical aspect of fulfilling Gideon’s Promise.