A central focus of our work is helping the criminal bar provide noncitizen defendants with effective counsel to avoid and minimize the immigration consequences of their criminal dispositions. Especially in the wake of the monumental Supreme Court decision of Padilla v. Kentucky, which holds that every noncitizen defendant in the United States is constitutionally entitled to be advised of the immigration consequences of a criminal disposition, we (and our other partners through the Defending Immigrants Partnership) are responding to high demand for requests for trainings, mentorship, printed materials, and technical support. We are also working with national criminal defender organizations to further education on this issue and to monitor cases addressing the scope of Padilla in post-conviction relief cases. And we are continuing to strengthen relationships between criminal justice and immigrant advocacy efforts to enhance partnerships to fight back against the targeting and scapegoating of immigrants with criminal records.
To get advice on criminal-immigration issues or to request trainings or other support, please call our hotline at 212.725.6422.
The Defending Immigrants Partnership (DIP) is an unprecedented collaboration between the Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, and the Immigrant Legal Resource Center — the country’s foremost immigration advocacy and defense organizations with expertise in the immigration consequences of crime and national, regional, and local indigent defense organizations. The mission of DIP, the only national collaborative devoted to fostering changed perceptions and effective practices within the criminal justice system, is to ensure high-quality legal representation for indigent immigrant clients in criminal and civil matters.
Since 2002, DIP has provided defenders the means to make systemic improvements in their representation of noncitizen clients. DIP has trained thousands of indigent defenders on criminal defense of immigrants; created user-friendly written materials available on-line; created various office models or “protocols” for how defender offices with limited resources can set up structures so that they can provide this advice; trained and mentored attorneys to serve as in-house immigration experts at defender organizations across the country; written and distributed timely practice advisories on key cases; analyzed and advised on the immigration consequences of thousands of individual criminal cases; and most recently, quickly sprung into action to educate the criminal defense community about the meaning of and responsibilities of Padilla.
To learn more about DIP, please visit www.defendingimmigrants.org.
Padilla Post-Conviction Relief
IDP has been working to ensure that Padilla is interpreted fairly such that non-citizen defendants receive the full benefit of their Sixth Amendment rights. Global issues that arise regularly in Padilla post-conviction relief cases include the following: 1) retroactivity; 2) scope of counsel’s duty; and 3) establishing prejudice flowing from the incompetent representation. For more information, see our Padilla Post-Conviction Relief page. New York and other post-conviction relief practitioners and litigants are encouraged to contact IDP Staff Attorney Dawn Seibert for litigation support and technical assistance. **Coming soon: model New York CPL § 440 materials (to challenge New York State convictions).**
Resources Designed Especially for Criminal Defenders
Representing Immigrant Defendants in New York, 5th Edition
Over 20 percent of New York State residents are foreign-born, according to the U.S. Census, and many are noncitizens who may be easily subject to detention and deportation for criminal convictions. Through a well-organized explanation and analysis of the relevant law – along with our renowned two-page “Immigration Consequences of Crimes Summary Checklist” and 12 appendices for quick reference – the 2011 edition of our manual offers detailed, practical, straightforward, and up-to-date information to help defense attorneys:
- Comply with Padilla obligations when representing noncitizen clients
- Identify potential immigration consequences of specific New York dispositions
- Strategize ways to avoid adverse immigration consequences in criminal cases.
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Practice Advisory: Duty of Criminal Defense Counsel: Representing an Immigrant Defendant after Padilla v. Kentucky (April 9, 2010, appendices updated January 2012):
This practice advisory, prepared by the IDP for the Defending Immigrants Partnership, provides initial guidance on the duty of criminal defense counsel representing an immigrant defendant after the Supreme Court’s Sixth Amendment right to counsel decision in Padilla v. Kentucky (U.S. March 31, 2010). In this decision, the Court held that, in light of the severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a non-citizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a non-citizen may raise a claim of ineffective assistance of counsel.
A Guide for New York State Criminal Defense Lawyers: How Mellouli v. Lynch Impacts Controlled Substance Cases for Your Immigrant Clients.
On June 1, 2015, the United States Supreme Court vacated the deportation order of an immigrant convicted in Kansas for possession of drug paraphernalia—in his case, a sock containing four unidentified pills. In Mellouli v. Lynch, the Court held that where the government seeks to deport an immigrant for a drug paraphernalia conviction, the government must tie the conviction to a substance listed on the federal controlled substance schedules. IDP has issued a short practice advisory that explains the Mellouli decision’s broader implications for immigrants charged in New York State with a wide range of controlled substance and drug offenses (simple possession, possession with intent to distribute, distribution, sale, certain medical offenses) under Article 220 of the New York Penal Law (“NYPL”).
Practice Advisory for Criminal Defense Lawyers re: Attorney General Holder April 10, 2015 Order in Matter of Silva-Trevino.
On April 10, 2015, U.S. Attorney General Eric Holder signed an order that should be good news for immigrants accused of certain crimes and their criminal defense lawyers: Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015) (Silva-Trevino II). The Attorney General’s order vacates a November 7, 2008 opinion of former Attorney General Michael Mukasey that allowed immigration judges to consider evidence outside the record of conviction in order to determine whether a noncitizen was removable from the United States on the basis of a conviction for a “crime involving moral turpitude.” Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (Silva-Trevino I). Silva-Trevino I had the effect of hampering the ability of defense lawyers to give reliable advice regarding the immigration consequences of a negotiated plea to certain criminal charges, as the opinion allowed a later immigration adjudicator to consider evidence of the underlying facts outside what is established by the criminal disposition and record of conviction. However, Silva-Trevino II should give defense lawyers enhanced ability to provide reliable advice regarding the immigration consequences of guilty pleas to certain charges, as well as greater ability to limit those consequences by controlling what is in the record of conviction. IDP, the National Immigration Project of the National Lawyers Guild and the Cardozo School of Law Immigration Justice Clinic have prepared a practice advisory for criminal defense lawyers regarding the Silva-Trevino II order here.
Practice Advisory for 2013 NYC Detainer Policy (Local Laws 2013/021 and 2013/022)
IDP has issued a practice advisory for criminal defense attorneys regarding New York City’s 2013 detainer laws (Local Laws 2013/021 and 2013/022). This advisory provides guidance as to which immigration detainers the New York Police Department and the NYC Department of Corrections will not honor, thereby preventing certain non-citizens from being transferred to immigration detention. IDP also includes bail payment and plea decision tips for criminal defense attorneys within this advisory.
Practice Advisory on ICE’s “Secure Communities” in NYC
On May 15, 2012, ICE activated its “Secure Communities” program throughout New York State. As the implementation of this program may drastically alter the decision of noncitizen clients at arraignments, IDP has issued a practice advisory for criminal defense attorneys. “Secure Communities” (S-Comm) is an Immigration and Customs Enforcement (ICE) agency program that requires state and local law enforcement agencies to automatically forward the fingerprints of all people arrested through immigration databases at booking. ICE then coordinates with local law enforcement to target people suspected of immigration violations for detention and deportation.
Protocol for the Development of a Public Defender Immigrant Service Plan:
This protocol can be used by public defender offices for development of a plan to serve the special needs of their immigrant clients. This document includes appendices on contact lists of criminal-immigration experts by defender office; sample forms, letters, updates, and trainings; and other tools.
Immigration Consequences of Convictions Checklist
This two-page checklist summarizes the criminal offenses that might have immigration consequences for immigrant defendants.
Quick Reference Charts for Immigration Consequences of Criminal Offenses:
These charts list common criminal offenses, and whether they might trigger an immigration ground of removability (and thereby subject an immigrant to deportation).
Aggravated Felony Case Law Determinations
This chart contains sample aggravated felony case law determinations to help you determine whether a specific criminal offense (felony or misdemeanor) may be deemed an “aggravated felony” for immigration law purposes.
Practical Tips to Avoid Aggravated Felonies:
This advisory, produced by Bronx Defenders, suggests strategies during a criminal proceeding to minimize the risk that a criminal conviction will be deemed an aggravated felony under immigration law.
“Particularly Serious Crimes” Bars on Asylum and Withholding of Removal:
This chart assists practitioners in determining whether an offense may be deemed a particularly serious crime, and thereby bar certain persecution-based relief from removal. It also includes a table of case law determinations.
Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients (Jan. 31, 2011)
This advisory for criminal defense attorneys, prepared by IDP and the Neighborhood Defender Service of Harlem and updated by the Immigration & Human Rights Clinic of the David A. Clarke School of Law at the University of the District of Columbia, gives a brief overview of new developments in the “categorical approach” that immigration courts use to determine the immigration effects of a conviction and offers concrete practice tips for defense counsel in light of these changes.
Tooby’s Guide to Criminal Immigration Law:
How Criminal and Immigration Counsel Can Work Together in Criminal Cases: This 230 page volume, being offered for downloading free of charge by the Law Offices of Norton Tooby, includes strategies for avoiding deportation at each stage of a criminal case: investigation, consultation, plea, sentence, post-conviction relief.
Tips on How to Work With an Immigration Lawyer to Best Protect Your Non-Citizen Defendant Client
Written in 2004 by Manuel D. Vargas. Download here.
New York State Releases Data on Child Endangerment Arrests and Prosecutions
In response to a request for information filed by the Immigrant Defense Project (“IDP”), the New York State Division of Criminal Justice Services has released data regarding arrests and prosecutions under Section 260.10(1) of the New York Penal Law (“NYPL”), endangering the welfare of a child, a level-A misdemeanor. The data sets document arrests, dispositions, and sentences imposed; race of defendant arrestees; jail terms; and lengths of probation. The information is for years 1990 through 2015. For questions and inquiries about the data request, please contact IDP at 212-725-6422 or firstname.lastname@example.org.