Scholars Sidebar: Can immigration attorney be appointed in fed criminal case?

A new article by a Justice Department trial attorney suggests that it may be possible for immigration counsel to be appointed in the federal prosecution of a noncitizen defendant. Scott R. Grubman, I Want My (Immigration) Lawyer! The Necessity of Court-Appointed Immigration Counsel in Criminal Prosecutions After Padilla v. Kentucky, 12 Nev. L. J. 364 (2012). Grubman clearly explains that the views expressed in the article are his alone and not those of the Justice Department.

According to Grubman, the federal Criminal Justice Act may provide a route for a criminal defense attorney to request appointment of counsel with special knowledge of immigration law. Better known as the federal statute governing appointment of criminal defense counsel to indigent defendants facing federal charges, the CJA allows indigent defendants to request “services [that] are necessary and that the person is financially unable to obtain.” 18 U.S.C. § 3006A(e)(1).

Is immigration law expertise one of these “services”? Grubman argues that it is. Grubman at 388. For support he points to a Massachusetts federal district court decision, United States v. Alves, 317 F. Supp. 2d 65 (D. Mass. 2004), that “interpreted the CJA as possibly requiring funding for the services of an immigration attorney in certain circumstances.” Grubman at 386.

If the immigration questions are “extremely difficult,” appointment may be permissible, the court explained. By “extremely difficult” the court seems to mean that the immigration law implication is beyond the wherewithal of a reasonable attorney’s research abilities. Grubman at 387 n.244. “If,” the Alves court wrote, “CJA counsel has a defendant where it cannot be discerned, despite CJA counsel’s diligent research efforts, what effect a conviction will have on the defendant’s immigration status, then a case can be made that prior authorization to obtain assistance from an immigration attorney should be granted.” Grubman at 387 n.244 (quoting Alves, 317 F. Supp. 2d at 67-68). It’s worth noting that the court declined to appoint immigration counsel. Grubman at 387.

I haven’t heard of too many people trying to use the CJA in this way. Given that Grubman identifies a case where the court did not appoint immigration counsel and none where the court did appoint immigration counsel, I’m assuming he wasn’t able to find any stronger support. The only other case I’ve seen along these lines is an unpublished Southern District of Texas order denying a request to appoint counsel to make a Padilla-based ineffective assistance of counsel claim in a state court. United States v. García, 2011 WL 2313212 (S.D. Tex. 2011) (Kazen, J.). Clearly García presents a very different situation than what Grubman suggests. It’s an interesting proposition and I would love to hear from anyone who has had any experience trying to use the CJA how Grubman suggests.