My name is Kathy Santamaria Mendez, and I am a Salvadoran-Honduran immigrant in the United States. I came to the United States with my family from El Salvador when I was two years old, originally as tourists, but life had other plans for us, and we ended up staying in the United States permanently. Even though I grew up in the United States and consider this country my home, I always grew up knowing that I am also a foreigner to this land, and even more complicated, that I am also a foreigner to El Salvador because I did not grow up there, and that has caused a disconnect with my roots. This complex situation of not feeling like you completely belong to any country is a daily experience for thousands of immigrants in the United States, many of whom came to the United States as young children and have known no other country. Each immigrant experience is different, and while I do not hope to use my experience to speak for all immigrants, I do hope to use my experience, and the experiences of loved ones, to shed light on a critical issue that has impacted my family, my friends, and many other community members around me—it is also one of the issues that pushed me to seek a career in law.

This paper will discuss the problems that arise when a noncitizen finds themselves in a situation where a criminal law violation could lead them to a life-altering consequence of being removed from the United States. This is a reality that many immigrants face yearly, even those that, like me, grew up in the United States and know no other home. I believe our immigration system needs deep reform and that noncitizens deserve better. I have seen these issues far too often in my personal life, such as when my uncle was removed from the United States after unknowingly pleading guilty to theft, which led to his removal and the separation of a family. Other times include my friends who are living in the United States with temporary protection and have had this protection stripped away because they plead guilty to charges with no assistance from an attorney that could have advised them differently. I hope to bring awareness to this issue—among the many other issues in immigration law—and push other community members to also challenge and demand a change in immigration policy.

Whenever facing the possibility of becoming a defendant in a criminal case, most people are made aware of their Sixth Amendment right to counsel, which is meant to serve as a protection to the rights and freedoms guaranteed to us by The United States Constitution. The Sixth Amendment’s Right to Counsel Clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right to…have the Assistance of Counsel for his defence [sic].”

Since the 1930s, the U.S. Supreme Court has both expanded and limited the Sixth Amendment’s Right to Counsel Clause, with the final interpretation occurring in Scott v. Illinois, where the Court found that this right applies only to those in criminal proceedings where there is a possibility of incarceration. In Scott’s dissent, the dissenting judges pointed out that using this standard, “denies the right to counsel in criminal prosecutions to accuseds [sic] who suffer the severe consequences of prosecution other than imprisonment.” One of the severe consequences faced by many in criminal proceedings is the possibility of deportation.

When Scott was decided in 1979, there were fewer offenses that triggered deportation, those grounds have drastically changed and expanded through the passing of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA, or “the Act”) and now includes more grounds of deportability than ever before. With these drastic changes and the negative effects courts were seeing for noncitizen criminal defendants, the Supreme Court of the United States decided in Padilla v. Kentucky that deportation is a “penalty” intimately intertwined with criminal convictions even if it is carried out by a different governmental agency.

This paper breaks down immigration law and its connection with criminal law and argues why the Sixth Amendment right to counsel should attach to all misdemeanor cases even if the charge does not include a possibility of incarceration for noncitizen defendants. By taking the holding in Padilla, this paper will examine how guaranteeing the right to counsel in all misdemeanor cases will ensure that noncitizen criminal defendants’ constitutional rights to liberty are protected.