By Matthew Chang

What does adequate legal representation for noncitizen criminal defendants look like? After the Supreme Court decided the landmark case of Padilla v. Kentucky, criminal defense attorneys became responsible for advising clients if and when there might be immigration consequences that accompany acceptance of a guilty plea deal, such as a potential risk of deportation. Currently, the criminal and immigration representation are completely divided. This Comment argues that the Padilla mandate alone, while important, fails to adequately provide noncitizen criminal defendants their Fifth Amendment Due Process Right and Sixth Amendment Right to Counsel. Using the Supreme Court’s legal analysis in Padilla and similar cases, I contend that the criminal and immigration divide is not so discrete. Inadequate representation in either criminal or immigration courts is considered a failure of the Fifth Amendment. Nevertheless, one way to rectify this constitutional shortcoming is to create and implement government-appointed counsel for all noncitizen criminal defendants facing criminal and removal proceedings. This Comment evaluates local, government-enacted immigration public defender programs that have experienced great success within California. Further, this Comment posits that to fully comply with the Fifth Amendment’s requirement of adequate representation, Congress must follow suit and expand quality legal access across the nation for noncitizens facing deportation proceedings, modeled after successful immigrant defender programs in California.

112 J. Crim. L. & Criminology Online 29 (2022).