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Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress?

22 Pages Posted: 19 Aug 2011  

Daniel Kanstroom

Boston College - Law School

Date Written: August 18, 2011

Abstract

Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proceedings.

Keywords: Jose Padilla, Sixth Amendment, Padilla v. Kentucky, deportation, immigration law

Suggested Citation

Kanstroom, Daniel, Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? (August 18, 2011). New England Law Review, Vol. 45, p. 101, 2011; Boston College Law School Legal Studies Research Paper No. 236. Available at SSRN: https://ssrn.com/abstract=1911918

Daniel Kanstroom (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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