Seeking Fundamental Fairness in Immigration Reform

Although proposals for immigration reform have offered some promise of legalization for our country’s immigrants, they have often included provisions that undermine our nation’s values of fairness and due process. In particular, immigrants with prior contact in the criminal justice system are often vilified and excluded from reform efforts.

This has led past immigration reform proposals to often include provisions that exclude individuals with criminal records from being eligible to legalize, expand the mandatory deportation grounds for crimes for both undocumented and lawful permanent residents, and amplify the current immigration enforcement framework that relies on the criminal justice system.

The United States needs clear, fair guidelines for a path to citizenship. Without such guidelines, many immigrants who public defenders represent on a daily basis, will be inevitably excluded from being able to legalize their status. Our country also needs humane policies that take into account an individual’s circumstances and gives them a shot at a second chance despite the past mistake instead of a blanket rule excluding persons purely based on past misconduct.

Immigration reform that provides clear, fair guidelines will help criminal defense attorneys fulfill their constitutional duties to advise and defend their immigrant clients. In a landmark U.S. Supreme Court decision, Padilla v. Kentucky, decided in 2010, the Court ruled that the Sixth Amendment requires criminal defense counsel to advise and where possible defend against immigration penalties. The Court recognized that terribly severe immigration consequences were intimately intertwined with the criminal process.

In many cases, this second punishment is grossly disproportionate to the crimes themselves, and strikingly disparate from the consequences for citizens convicted of those same crimes. Even a single conviction for a minor offense may have devastating consequences including mandatory and extended immigration detention, mandatory deportation, permanent separation from family and community, and, in some cases, persecution or even death upon return to the country of origin.

The Defending Immigrants Partnership (DIP) is the only national collaborative devoted exclusively to protecting the rights of immigrants accused of crimes by providing advocacy and support within the criminal justice system. A joint initiative formed in 2002, DIP is staffed by the Immigrant Defense Project, the Immigrant Legal Resource Center and the National Immigration Project. These three organizations are national leaders in the complex area of the immigration consequences of criminal convictions.

A central piece of the work of the Partnership is working with criminal defense counsel to help them most effectively and competently represent immigrants facing criminal charges. DIP is supported by the Open Society Foundations and the Ford Foundation.

As the immigration reform debate continues, the Partnership organizations will utilize our strong connections to criminal and juvenile justice stakeholders, such as criminal defense organizations, prosecutors, criminal court judges, criminal and juvenile justice reform advocates, drug policy advocates, and law enforcement officers, to preserve due process rights and fundamental fairness for all immigrants.