Amid heightened fears in the immigrant community in the United States over President Trump’s draconian immigration policy, Acting Brooklyn District Attorney Eric Gonzalez on Monday announced that his office is implementing a new policy aimed at minimizing collateral immigration consequences of criminal convictions, particularly for misdemeanor and other low-level offenses.
Gonzalez said his office has hired two immigration attorneys to train all staff on immigration issues and to advise prosecutors when making plea offers and sentencing recommendations on cases of non-citizen defendants “in an effort to avoid disproportionate collateral consequences, such as deportation, while maintaining public safety.
“I am committed to equal and fair justice for all Brooklyn residents – citizens, lawful residents and undocumented immigrants alike,” he said. “Now, more than ever, we must ensure that a conviction, especially for a minor offense, does not lead to unintended and severe consequences like deportation, which can be unfair, tear families apart and destabilize our communities and businesses.
“In Brooklyn, we have been proactive in protecting immigrants from fraud and hate crimes; and now, with the unprecedented hiring of immigration attorneys and the implementation of this policy, we continue to lead on this important issue,” Gonzalez.
He stressed that his office is “not seeking to frustrate the federal government’s function of protecting our country by removing non-citizens whose illegal acts have caused real harm and endangered others.”
Rather, he said his goal is to enhance public safety and fairness in the criminal justice system, adding that this policy complements but does not compromise, this goal.
“We will not stop prosecuting crimes, but we are determined to see that case outcomes are proportionate to the offense as well as fair and just for everyone,” Gonzalez said.
The New York Immigration Coalition Executive Director Steven Choi congratulated Gonzalez on this “significant initiative.
“This is an important step to protect Brooklyn’s large and diverse immigrant population,” he said. “Misdemeanors and low-level offenses often trap immigrants who are unfamiliar with the legal process – and potentially expose them to harsh ‘double punishment’ of being deported and ripped from their families.
“The New York Immigration Coalition looks forward to the program’s success and eventual expansion,” Choi added. “After all, this is our New York, one that fights for justice of all people.”
The acting district attorney said that non-citizen defendants may face harsh immigration penalties as a result of criminal convictions, even for minor offenses.
He also said lawful residents (green card holders or students, workers, visitors, refugees and asylees with valid visas) can face deportation, detention during removal proceedings, bars to re-admittance into the country and negative effects on applications for permanent residency or citizenship.
Gonzalez said a conviction for undocumented immigrants can make them a priority for deportation enforcement or eliminate the possibility of the cancellation of removal proceedings that might be otherwise available based on length of stay, marriage, extreme hardship and other factors.
According to federal law, four factors primarily affect how a conviction impacts a defendant’s immigration consequences.
Firstly, Nature of the crime. Certain offenses, like those involving a controlled substance, domestic violence, firearms, crimes against a child and crimes of moral turpitude, are prioritized and can be determinative on how a state offense is treated for immigration purposes.
For instance: some state misdemeanors, like possession of marijuana and petit larceny, are considered felonies for immigration purposes, while trespass and unauthorized use of a vehicle are not, Gonzalez said.
Secondly, Length of sentence. Certain misdemeanor dispositions are tantamount to aggravated felonies for immigration purposes.
Thirdly, the length of the defendant’s stay in the United States, and fourthly, whether the defendant has prior convictions and the nature of such convictions, Gonzalez said.
He said the policy complements current practices pursuant to New York City’s status as a sanctuary city, under which his office does not share immigration status of victims and witnesses with federal authorities and encourages all residents to report crimes and cooperate with investigations without fear of reprisals.
Gonzalez said the Brooklyn District Attorney’s Office has “done much to prevent immigrants from becoming victims of crime and to assist those who become victims.”
He said that includes “well-attended” immigration forums in several communities that are now being held on a monthly basis; “an active Hate Crimes Unit and a robust Immigrant Fraud Unit that is specifically tasked with investigating crimes against immigrants; a regular review of U-Visa applications of witnesses and victims; a culturally diverse team of counselors in the Victims Services Unit; and more.”
The office has also been responsive to defense attorneys’ requests to take immigration status of their clients into account when offering or reviewing dispositions, Gonzalez said.
He said that while these efforts have been important, “prosecutors must do more and take a more proactive role in making sure that a conviction for a minor offense does not lead to a severe and unjust outcome.”