A coalition of Tennessee immigrants’ rights activists issued a report alleging discriminatory targeting of immigrants in Bedford County, a rural county south of Nashville. Sarah White & Salmun Kazerounian, The Forgotten Constitution: Racial Profiling and Immigration Enforcement in Bedford County, Tennessee (Sept. 2011). The report’s authors assert that “To be an immigrant or refugee in Bedford County is to be treated with suspicion or outright hostility by one’s own government, whose offices still exhibit vestiges of the overt racial apartheid of years past.” White & Kazerounian at 5.
This assertion is based on a number of recent policing trends. “[A] disproportionate number of Latino drivers were arrested for traffic violations,” the report explains. White & Kazerounian at 6. Once arrested, “[i]mmigrants are more likely to be held for long periods of time for minor traffic violations and to be held unlawfully without bond or after posting bond as a ‘courtesy’ for ICE when there is no ICE detainer.” White & Kazerounian at 8. This despite the fact that, the report explains, Tennessee’s constitution recognizes a right to bail and no state or federal statute or regulation requires a “courtesy” call to ICE. White & Kazerounian at 8-9.
One finding of particular interest to me that highlights the divide that often exists between constitutional law and practice is the report’s statement that “[i]mmigrant criminal defendants assigned to the public defender are often not advised of the immigration consequences of a criminal conviction pursuant to Padilla [v. Kentucky].” White & Kazerounian at 10. As regular crImmigration.com readers know, Padilla recognized that the Sixth Amendment right to counsel requires criminal defense attorneys to advise non-citizen clients about the possibility of deportation prior to entering a guilty plea.
Though the report does not explain why public defenders are not advising clients about immigration consequences, one possible explanation that jumps into my mind (admittedly I have no specific knowledge of Bedford County) is that the public defenders in this rural area do not have the resources necessary to become familiar with the nuances of immigration law about which Padilla requires they advise their clients. Unlike defenders in metropolitan areas, small-town criminal defense attorneys often lack the ability to hire someone whose job it is to either identify adverse immigration consequences or train other attorneys to recognize these pitfalls.
Similarly, rural attorneys lack the continuing legal education resources that many lawyers in urban areas use to maintain abreast of the latest developments in an area of law. This is particularly important for an area of law like crImmigration that changes constantly.
Unfortunately, many state courts have had difficulty putting Padilla into effect, as I discussed in When State Courts Meet Padilla in the Loyola Journal of Public Interest Law, an article cited by the Iowa Court of Appeals. It seems to me that the only way to solve this problem is by devoting additional resources to training the various actors involved in criminal prosecutions—prosecutors, defense attorneys (appointed, retained, and public defenders), and judges (including law clerks)—about the crime-based grounds of removal. When State Courts Meet Padilla at 329-330. Until that happens, my fear is that Padilla’s promise will remain unrealized.
Thanks to Professor Fran Ansley (University of Tennessee) for bringing this wonderful report to my attention.