De Facto Immigration Courts

Abstract

In Padilla v. Kentucky, the Supreme Court recognized a noncitizen defendant’s right to be informed by her attorney of any downstream immigration consequences that might flow from a proposed plea deal. In establishing this important right, the Court recognized a stark reality: that in many instances, a noncitizen’s only meaningful opportunity to avoid removal arises in upstream criminal proceedings. This Article traces out the implications of a world where criminal courts (especially at the state level) operate as de facto immigration courts. This Article aims to do three things. First, it shows that local prosecutors operate as gatekeepers in the world of de facto immigration courts, a point the Court recognizes in Padilla and other cases. Second, it explains that prosecutors can exercise their gatekeeping power to deviate from or completely unsettle federal immigration enforcement priorities, a quality that distinguishes them from other local actors participating in immigration enforcement. Third and finally, the Article explores how Congress and the Court might accommodate this nascent reality.