By David Brand
In response to the efforts of Queens immigrants’ rights advocates, all three Queens District Attorney candidates have taken a stand in support of an “immigration hardship” plea policy that would direct prosecutors to consider how various charges could impact a noncitizen defendant’s immigration status.
Borough President Melinda Katz, Councilmember Rory Lancman and retired Judge Gregory Lasak each told the Eagle that, if elected, they would direct assistant district attorneys to consider alternate charges that carry a similar penalty but have fewer repercussions for noncitizen defendants.
Immigration advocates have long called on prosecutors to use discretion when charging noncitizens — especially amid an immigration crackdown by the Donald Trump administration
“The immigration hardship plea policy is the minimum that any DA candidate running in a city like New York, and Queens specifically, needs to have,” said Murad Awawdeh, political director for the New York State Immigrant Action Fund. “It’s unconscionable for any candidate not to have an immigration hardship plea policy.”
Brooklyn District Attorney Eric Gonzalez announced a “case-by-case” policy for charging non-citizens in 2017.
Awawdeh said that prosecutors should consider alternative charges for offenses, especially misdemeanors, that carry the same punishment but do not have the same immigration status consequences.
“A lot of cases are low-level offenses and they may entail a minimal judgement, but the collateral consequence at the end of the day is that the immigration justice system takes over and deports the person,” Awawdeh said.
Some low level offenses, such as driving while ability impaired, typically result in small fines for U.S. citizens, but they nevertheless qualify as “crimes of moral turpitude” that can trigger deportation for non-citizens. Low-level marijuana offenses, which Katz and Lancman say they will not prosecute, can also lead to deportation.
Defense attorney Ali Najmi told Documented about a Deferred Action for Childhood Arrival recipient who was arrested for driving while intoxicated (DWI), but was offered a plea deal for Driving While Ability Impaired (DWAI), a violation. Najmi said he argued for a reckless driving charge, which carries a worse punishment than DWAI because it gives offenders a record but does not lead to suspension of DACA. The DA’s office initially refused, he said.
After several meetings with the Queens DA, the office offered a plea deal for reckless driving, but only if the defendant agreed to spend time at Rikers.
Lancman, the first candidate to announce his bid for DA in September, included the immigration hardship plea policy in a comprehensive list of reforms he said he would enact as DA.
"As district attorney, I won't feed Donald Trump's deportation machine by charging non-citizens with deportable offenses when alternative charges are available,” Lancman told the Eagle. “That's why I've successfully pushed the NYPD to reduce arrests for fare evasion, marijuana possession, and other low-level offenses better handled through civil enforcement.”
Days after Lasak announced his bid in October, he described his own commitment to the policy on Twitter in response to the story on Documented (full disclosure: the Documented article was written by Eagle managing editor David Brand).
Lasak expanded on that commitment in a statement to the Eagle on Friday
“As the next Queens District Attorney, I will implement an immigration plea policy which seriously considers the collateral immigration consequences for those charged with non-violent misdemeanor offenses so that a minor crime doesn't start a domino effect that results in an unnecessary deportation,” Lasak said. “And we’ll review any previous pleas that didn’t take those collateral consequences into account where deportations are occurring and renegotiate where appropriate."
Borough President Melinda Katz officially kicked off her candidacy at a rally in Forest Hills last Tuesday. Katz did not include the immigration hardship plea policy in her nine-point campaign platform, which includes enforcing hate crime laws and forming a “Conviction Integrity Unit” to review wrongful conviction complaints.
Katz told the Eagle that it is “vital for the district attorney to take in to account the consequences of the conviction that she is pursuing.”
“In many cases, when deportation is the end result of a conviction or plea bargain, the punishment simply does not fit the crime,” Katz said. “Collateral consequences of a criminal conviction can be a devastating ... I will seek immigrant-neutral pleas when compatible with public safety to prevent those collateral consequences and review cases that were adjudicated before I took office and are now causing immigrant consequences. It is imperative that our DA delivers fair justice for all."
At her rally last Tuesday, Katz also said she would oppose Immigration and Customs Enforcement agents in the criminal courthouse. According to an interactive map created by the Immigrant Defense Project, more than three dozen ICE arrests were reported in and around the courthouse between 2015 and June 27, 2018. In November, a passerby filmed ICE agents tackling and arresting a man as he walked toward the steps of the courthouse.
Unlike other local DAs, Queens DA Richard A. Brown has not publicly stated his opposition to ICE agents in and around the court.
Awawdeh said he is encouraged by Katz’ commitment to review charges in cases that happened before she potentially takes office.
But Najmi, the defense attorney who represents several immigrant clients in Queens Criminal Court, questioned why Katz did not announce her stance on an immigration hardship plea policy from the very beginning.
"I'm concerned that an immigration plea policy was not in her [Katz'] policy proposal book," Najmi said. "Whoever the next DA is is someone who has to institute an immigration hardship plea policy. That's what Queens needs."
Najmi said prosecutors often tell him that they consider every defendant the same, but he said, the charges for immigrants do not exist in a vacuum. By ignoring the risk for deportation associated with certain offenses, prosecutors do not treat defendants the same, Najmi said.
"I constantly deal with clients who are dealing with immigration consequences in Queens County. The ADAs will always say, 'We don't take immigration consequences into consideration. We treat all people the same,'" Najmi said. "And that has to change."