By Alina Das
Nearly two decades after a drug conviction threatened Vietnam veteran Jose Padilla– who also goes by Joe–with deportation, he was sworn into citizenship on March 19, 2019. As word spread, I happily relayed the news to my students at New York University School of Law. We had been studying Padilla v. Kentucky, Joe’s namesake, all semester. It was the backbone of my Immigration Penalties and Crimes seminar, a course designed to teach aspiring public defenders and deportation defense lawyers how to advocate for people at the intersection of immigration and criminal law. Before Padilla, millions had found themselves facing an inescapable arrest-to-deportation pipeline. Joe had given countless people a way out–and made our justice system better in the process.
As an immigrant rights attorney who began my career at the Immigrant Defense Project (IDP), I knew too well how easy it was for longtime residents like Joe to find themselves suddenly subject to permanent exile–i.e., deportation–based on an old criminal conviction. On the IDP hotline, I’d regularly speak to people who were shocked to learn that they were deportable. Their criminal defense attorneys, overworked and underresourced, were just not up to speed on the immigration consequences of criminal convictions. As a result, many people took guilty pleas based on bad advice.
Joe’s criminal defense attorney reassured him that his drug conviction would not jeopardize his green card. Because of the 1996 immigration laws, his criminal defense attorney’s assumptions were wrong. The laws tied the hands of immigration judges and blinded them to the plight of the individuals and families before them. It was a particularly harsh outcome for communities of color–burdened by the racial inequities of both the criminal and immigration systems. For Joe, it meant permanent deportation–what the Supreme Court has called the “loss of all that makes life worth living.”
By the time Joe’s case made it to the Supreme Court, I had begun teaching at NYU in the Immigrant Rights Clinic. I was in the classroom with my students the day that Padilla was announced from the bench–and saw the delighted faces of my colleagues at IDP a few rows across. None of us could believe what we were hearing: that the Supreme Court would finally recognize a Sixth Amendment right to immigration advice in criminal proceedings.
With no recognized right to government-appointed counsel in deportation cases, Padilla gave immigrants a fighting chance at a stage of the arrest-to-deportation pipeline when they had access to lawyers. A new legion of “Padilla attorneys” was born: specialists in criminal defense organizations, advising their colleagues on immigration consequences. Immigration lawyers would now be better equipped to limit the immigration consequences of their client’s past criminal convictions; a careful negotiation could turn certain deportation into an “immigration-safe” plea. That’s what I wanted out of my students, and Padilla gave them a path forward.
It was the sea-change we had all been fighting for. Of course, we knew all too well that the root of the problem ran deeper than bad advice in a criminal proceeding. No matter what had happened in his criminal case, Joe should have never faced the double punishment of deportation. That he stayed, and fought, and survived this grueling process is a testament to the resilience of so many like him who struggle under two unforgiving legal systems. The least we can do as lawyers is to honor his example by doing the same for our clients and working alongside them to get rid of the laws that allow these travesties of justice to happen in the first place.
Alina Das is a Professor of Clinical Law at the NYU School of Law. She co-teaches and co-directs the Immigrant Rights Clinic.