Acting Brooklyn D.A. Eric Gonzalez (David Handschuh/NYLJ)
The Brooklyn District Attorney’s Office is enacting a new policy to limit immigration consequences for defendants it prosecutes for low-level offenses.
As part of the new policy, announced Monday, to reach “immigration-neutral” disposition of cases, it has hired two immigration attorneys to train prosecutors and to work on cases that prosecutors have flagged as having potential immigration consequences.
Prosecutors also will have a greater role determining defendants’ immigration statuses and ensuring that defense attorneys are aware what, if any, immigration consequences their clients are facing.
Robin Nichinsky, supervising attorney and co-director of the Center for Appellate Litigation’s Immigrant Justice Project, said in an email that the policy is a “heartening step forward.”
“We have seen firsthand how unforeseen immigration consequences have ruined lives and torn families apart,” she said. “We hope other district attorney offices will implement similar measures in the future.”
Acting Brooklyn District Attorney Eric Gonzalez acknowledged in Monday’s announcement of the policy that violent felonies will inevitably come with immigration consequences, which he said are “often appropriate.”
A defendant can be made deportable if they are convicted of violent crimes, crimes against a child and domestic violence, as well as “crimes of moral turpitude,” a catchall term that in New York can run the gamut from fifth-degree criminal possession of stolen property to first-degree assault.
Prosecutors will seek to pursue charges that fit alleged crimes but do not put them at risk for removal. A defendant who was caught shoplifting, for example, could be charged instead with disorderly conduct as opposed to petit larceny, which is considered a crime of moral turpitude.
But given the complexities of how immigration consequences apply in some convictions, Gonzalez said there cannot be a blanket guideline for preventing immigration consequences and that the office will look at situations on a case-by-case basis.
“I want to emphasize that our office is not seeking to frustrate the federal government’s function of protecting our country by removing noncitizens whose illegal acts have caused real harm and endangered others,” he said. “Rather, our goal is to enhance public safety and fairness in the criminal justice system and this policy complements, but does not compromise, this goal.”
Elizabeth Crotty, a partner at Crotty Saland whose firm has worked with foreign nationals facing immigration consequences, said that while the Brooklyn DA has been at the “forefront” of making positive reforms—she cited its policy of not going after low-level marijuana possession cases—the new policy essentially memorializes a longtime practice of the office in which it seeks adjournments in contemplation of dismissal for first arrests of low-level offenders.
Crotty also noted that awareness of immigration effects of criminal cases is no new topic, citing the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky, 559 U.S. 356, in which the court said that defense attorneys must advise noncitizen clients about the immigration effects of pleading guilty.
“Now what you have is a president threatening to not let people in and deport them based on a shoplifting case,” she said.
The rollout of the new policy comes just as clashes between local leaders and federal officials regarding the “sanctuary city” policies that New York City and other cities follow has heated up.
On Friday, the Justice Department sent letters to New York City and eight other so-called sanctuary cities ordering them to prove that they are in compliance with 8 U.S.C. §1373, which generally prohibits state and local governments from restricting information about someone’s immigration status from immigration authorities.
The department also issued a release stating that New York City “continues to see gang murder after gang murder—a possible consequence of its ‘soft on crime’ policies—and that federal aid from the department might be withheld from cities that are found not be in compliance with the statute.
President Donald Trump issued a similar threat in January via an executive order.