45 New Eng. L. Rev. 305 (2010-2011)
Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress

handle is hein.journals/newlr45 and id is 309 raw text is: Padilla v. Kentucky and the Evolving Right
to Deportation Counsel : Watershed or
Work-in-Progress?
DANIEL KANSTROOM*
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.

305

* Professor of Law and Director, International Human Rights Program, Boston College Law
School; LL.M., Harvard University; J.D., Northeastern University; B.A., State University of
New York at Binghamton.

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