Next DA can do more for immigrants, advocates and attorneys say
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Legal Aid attorneys hold signs at a rally protesting ICE presence in courts. Photo courtesy of IDP
By Phineas Rueckert
It may be another few weeks before we find out who wins the Democratic primary for Queens District Attorney, but expectations are already high for the policies the future DA will implement.
While the seven candidates — and ultimately, six, after Councilmember Rory Lancman dropped out of the race to endorse Queens Borough President Melinda Katz — all ran progressive platforms, they differentiated themselves along a spectrum of views on a number of key party issues, including ending cash bail, closing Rikers Island and decriminalizing sex work.
At times, policy seemed to take a backseat in the race, as candidates sparred over management experience and personality. Now, as the Board of Elections recount kicks into overdrive, political maneuvering has again taken precedence over coverage of the issues.
Nonetheless, whoever ends up taking the position inherits a DA’s office that, immigration lawyers told the Eagle, lags behind neighboring boroughs on a spate of progressive issues, including immigration.
“To me, it’s actually shocking,” said Ioana Calin, a criminal and immigration law attorney at the Legal Aid Society. “We live in Queens — the world’s borough, where about half our residents are immigrants — and to work with this community and to serve this community and yet not effectively serve half of this community, it just doesn’t make sense.”
The Queens DA’s Office adamantly opposes this analysis, and says they have implemented several policies with immigrants in mind.
ICE presence outside courthouses fosters fear
As soon as they interact with the criminal justice system as defendants charged with crimes, noncitizens can open themselves up to the possibility of deportation proceedings. The next DA, lawyers said, can do more to protect immigrants on their way to and from the courthouse.
“I think the big thing would be preventing ICE from coming to our courts and lingering around the courts trying to arrest people,” said Joshua Epstein, a supervising immigration attorney at Queens Law Associates. “What we see is ICE coming into the courts, identifying people, then leaving the court and apprehending them right outside.”
Unlike DAs in the Bronx, Brooklyn and Manhattan, the Queens DA’s office has not publicly supported the Protect Our Courts Act, which would amend the state Civil Rights Law to prevent civil arrests by immigration agents for noncitizens “going to, remaining at or returning from” court.
A spokesperson for Acting Queens District Attorney John Ryan told the Eagle that “the issue is does New York State have the authority to prevent federal agents from carrying out their duties.”
“I remain unconvinced that New York has the power to do that,” the spokesperson said, on behalf of Ryan.
Queens had the second highest number of ICE arrests outside of courthouses in 2018 after Brooklyn — a 1,700 percent increase since 2016, according to a report by the Immigrant Defense Project. While an Office of Court Administration directive requires ICE to present a judicial warrant in order to make an arrest inside a courthouse, ICE agents are still allowed to linger outside of courts without consequences. There, they are able to detain immigrants appearing at court hearings, even for civil cases.
OCA told the Eagle last month that there have been six ICE arrests inside courthouses statewide this year, including one in Queens. The ICE agents had a warrant in each occasion, an OCA spokesperson said.
Fear of ICE presence at or around courthouses, Epstein said, can also prevent noncitizen defendants from defending themselves in court.
“A lot of clients will want to just plea their cases out as soon as possible, even upon arraignment, because they don’t want to have to come back to court for fear that ICE will be there on their next arraignment date,” he said. “When, if they fought their case, they could possibly get their case dismissed or come up with a better outcome.”
ICE AGENTS ARREST A MAN OUTSIDE THE QUEENS CRIMINAL COURTHOUSE IN JANUARY. PHOTO COURTESY OF QUEENS LAW ASSOCIATES
Collateral consequences
Within the DAs office, too, collateral consequences, such as deportation, should be taken into account when prosecuting noncitizens, both lawyers said. Their concerns reflect the perspective of defense attorneys and advocates throughout the borough.
“Before 2016, it appears that the DA’s office was more willing to take collateral consequences of noncitizens into consideration or they were more amenable to working out pleas around those issues,” Calin, at Legal Aid, said. “If a citizen goes to prison or takes a certain plea then they have to deal with whatever consequences come from that, which are severe in and of themselves: loss of freedom, loss of employment, loss of housing.”
“For a noncitizen, it’s all that plus potential permanent expulsion from the country,” she added.
The spokesperson from the DA’s office disagreed with that assessment.
“We endeavor to treat every defendant regardless of immigration status equally,” the spokesperson said. “Lawyers, however, frequently ask that we treat non-citizens better than citizens.”
“That is something we decline to do,” the spokesperson continued. “When a lawyer is willing to enter into good faith negotiations we endeavor to come up with a disposition that addresses their concerns and one we would also be willing to offer to a citizen as well. There are times that this can be done and unfortunately times when it cannot.”
The DA’s office also noted that it established an Office of Immigrant Affairs in 2015. The initiative, which helps undocumented victims of crimes obtain legal status through a process called u-visa certification, serves victims of crimes, not suspects.
“With close to half the Queens population being foreign born, we assume our defendant population is of similar ratio. We face the immigration issues of defendants probably more than just about any other prosecutor’s office in the nation,” the spokesperson said.
“To my knowledge, we are the only office in the State of New York, if not the entire country, that serves every defendant arraigned in the county a notice pursuant to the Treaty of Vienna, an international treaty that offers foreign nationals the assistance of their government when they are the subject of arrest in a foreign country,” the spokesperson continued. “More than 100 nations, including the United States, are parties to this treaty and depending on the country involved, notification may be mandatory, or only upon request of the defendant and counsel to request that we act pursuant to this treaty.”
Calin called for the next DA to focus on advancing “no plea” diversion programs for noncitizens, which would reorient them toward community-based alternative-to-incarceration programs without first pleading to a crime. A criminal record, even some misdemeanors, can expose immigrants to the possibility of deportation proceedings.
She added that she would like to see the next Queens DA decline to prosecute sex workers and low-level marijuana offenses, which can have disproportionately harsh consequences — namely, deportation — for noncitizens.
Existing plea policies in the DA’s office also affect noncitizens more than citizens, Epstein said. This includes the “No Plea Policy,” which requires defendants to negotiate plea deals before indictment and was put into place more than 20 years ago under late Queens DA Richard Brown. This policy, Epstein said, makes it harder for noncitizens to reduce their sentences and can force them to take unfavorable plea bargains.
He added that the Queens DA could also be more flexible when it comes to granting certain legal motions for noncitizens, such as postponing court dates in order to facilitate family visits.
“There are a variety of requests that we’ll make to the DA’s office based on someone’s immigration status,” Epstein said. “Depending on the situation, it can be a bit of a challenge to get our requests approved. That could be, for instance, if we want to advance a ceiling on an ATD or have a different kind of charge added to a complaint based on the facts. Those are scenarios that we would like to see fixed to help immigrants.”
Looking ahead
Any change in the DA’s office, both Calin and Epstein said, could make a sizeable impact for immigrant and noncitizen communities in Queens.
Early on the campaign trail, Queens Borough President Melinda Katz, Councilmember Rory Lancman and former judge Gregory Lasak called for an immigration hardship plea policy that would require prosecutors to take into account immigration consequences when considering charges.
“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,” Katz said in a statement to the Eagle in December. “It is imperative that our DA delivers fair justice for all."
Murad Awawdeh, political director for the New York State Immigrant Action Fund, told the Eagle that an immigration hardship plea policy was “the minimum that any DA candidate running in a city like New York, and Queens specifically, needs to have.”
“It’s unconscionable for any candidate not to have an immigration hardship plea policy,” she said.
Public defender Tiffany Cabán, who entered the race in January and finds herself 16 votes behind Katz heading into a countywide recount, distinguished herself on immigration policy by calling for the prosecution of ICE agents.
Calin declined to weigh in on which candidate she preferred in the race, but she said she looked forward to seeing what policies they implement in regard to immigrants.
“I’m not going to comment on any of the candidates specifically, but it appears from the possibilities there are of who might win the DA’s office, it seems that they all have a platform that includes some sort of reform geared toward noncitizen and immigrant communities,” Calin said. “I’m hopeful that it’s not just lip service, that whoever gets to the DAs office will implement meaningful changes.”
Still, she said, it would not be easy.
“I’m sure it’s going to be hard because there is clearly this deep-seated culture in the DA’s office to not do that,” she added.
