To the Public Defender: Why Every Public Defender Needs Immigration Attorneys

April 20, 2016

Guest blogger: Erin Caliri, third-year law student, University of San Francisco

Overworked and under-serving the immigrant population. These are critiques directed at public defenders. Public defenders—who represent the indigent, including indigent noncitizens who get caught up in the criminal system in the United States.

The consequences are greater for noncitizens in the criminal system. Criminal dispositions can lead to deportation or mandatory detention. With the fear of deportation, the fear of losing their families, and the fear of never returning to their home in the United States, the immigration consequences for an immigrant go way further than a criminal penalty.

Public defenders have the duty to investigate, advise, and defend clients who are not citizens of the United States. In 2010, the Supreme Court arrived at this holding in Padilla v. Kentucky. This includes going further than just asking, “Where were you born?” But pushes the attorney to ask about familial status, years in the United States, naturalization, etc. If the client is not a citizen, the defense attorney must then advise the client of immigration consequences. The advice doesn’t stop there but then turns to finding alternative non-deportable options for the client. At that point, zealous advocacy is required by the attorney. The main goal becomes keeping your client in the country with no immigration consequences.

Public defenders have a duty, and the duty must be exercised. The burden defense attorneys have to investigate, advise, and zealously defend clients who are not citizens is not impossible. It is not even unrealistic. The times it becomes overwhelming are the times that employing immigration counsel in a permanent or part-time capacity becomes necessary. The more lawyers the better. Immigration law is complicated. That is why an immigration attorney is necessary to navigate the intricacies of immigration law as well as give full attention and focus on preserving the goal of the client in not facing immigration consequences.

With the help of the Immigrant Legal Resource Center and easily attainable immigration-criminal resources, the task for a public defender representing an immigrant in a criminal matter is not as daunting as it seems. However, with the caseload of public defenders, sometimes being hundreds at a time, immigrant clients can get glossed over. This is a problem—especially when these are the cases that should get prioritized due to the conviction consequences that apply to noncitizens.

In 2015, the ACLU brought a lawsuit against Fresno County’s public defense system for denying thousands of defendants their constitutional right to adequate representation. According to the ACLU complaint, in Fresno County, 60 public defenders work 42,000 cases every year. The ACLU also claimed that minorities make up about 70 percent of those arrested in Fresno—and immigrants are often instructed to plead guilty without being told how it might affect their immigration status. Fresno County does not employ in-house immigration counsel to help noncitizens navigate their criminal case.

On their own, public defender offices have to allocate funding in order to create an in-house immigration attorney position. This is extremely difficult for public defender offices that are already short on funds and need to hire more public defenders to begin with. The push for the employment of immigration attorneys needs to fall on the County. San Francisco is only one of a few counties in Northern California that hires a full-time immigration specialist in their public defender’s office. According to the U.S. Census in 2014, nearly 36 percent of San Francisco residents are foreign born. Additionally, approximately 7 percent of the 23,000 clients served annually by the San Francisco Public Defender’s Office are undocumented. That is 1 immigration attorney for about 161 people. Despite the clear need to hire more immigration attorneys, San Francisco Public Defender’s Office does not get additional city funding to create more positions.

Even though San Francisco only has one attorney designated for all criminal and immigration cases, one is a start. We must urge other counties, like Fresno County, to make a position for one additional attorney to ease the intersection of immigration and criminal cases. This will help prioritize the need and address the risk that immigrants face in the criminal system. The public defender’s office can be there to further assist their client by providing the best defense without sacrificing immigration consequences in the process. As attorneys we must work together. We must forge a relationship that collaborates and incorporates a holistic approach to representation.