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Collateral Consequences: Brooklyn DA Seeks to Protect Immigrant Defendants from Deportation

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By Kate Ryan

Eric Gonzalez, the newly elected district attorney of Brooklyn, has a vast squad of 500 assistant prosecutors serving his borough. But this April, while serving as acting D.A., he made two important new hires: immigration attorneys. 

Gonzalez decided there was an urgent need to educate his prosecutors about the added threats immigrants face when they come in contact with the criminal justice system.  The new hires, both of whom are experts in the field of immigration law, are now training assistant D.A's to tailor criminal charges and plea bargains to avoid placing immigrant defendants in jeopardy of deportation.  

Those so-called ‘collateral consequences’ of criminal charges, Gonzalez said, means that undocumented immigrants can face the threat of deportation for low-level misdemeanor offenses or even violations. The threat also extends to those holding green cards, students on visas and others on the path to citizenship, he said.

“Many people plead guilty without any idea that this is going to cause them a tremendous and disproportionate consequence,” said Gonzalez. 

The DA’s focus on immigration is a marked change for a top prosecutor whose chief focus is usually protecting public safety and obtaining criminal convictions.

“You have to step out of your comfort zone,” Gonzalez said. “We need to make sure that immigrant communities are not isolated and don’t go back into the shadows.  It does not serve the interest of justice or public safety.”

The two lawyers are David Satnarine, a former presidential management fellow at the Department of Homeland Security, and Danny Alicea, former attorney at the non-profit organization Immigration Equality. So far, they have consulted on some 200 cases handled by Brooklyn prosecutors, according to Gonzalez’s office. The pair also help address immigration issues for the Appeals Bureau, which handles post-conviction relief.

“They're the real deal,” said Scott Hechinger, a senior staff attorney and director of policy at Brooklyn Defenders, who usually finds himself on the other side of the table from the DA’s office. “They care, and they offer a degree of expertise to the office that was missing before and that they have now.”

Since the DA’s initiative, conversations between prosecutors and defense attorneys on immigration-tied cases have been more collaborative than adversarial, he said.

“My experience has been, in all misdemeanor cases, a willingness and great flexibility in coming up with a disposition that is going to be safe, immigration-safe,” said Hechinger. 

In many cases, he said, attorneys have been able to negotiate misdemeanor cases down to violations that do not jeopardize the immigration status of the defendant and do not jeopardize public safety. 

For instance,  in a recent case when a green-card holder was arrested for striking a child with a cell phone charger, the defendant was originally charged with endangering the welfare of a child, an abuse crime that made her deportable. But the DA’s office offered a plea of fourth degree criminal mischief as an alternative, said an office spokesperson.

Both crimes are “A” misdemeanors, the most serious class of misdemeanor crimes, ensuring the defendant’s punishment was not lessened under criminal law. But the new charge, since it was not in the category of abuse, would protect the Brooklyn resident from being deported in the future. The case is still pending.

Camille Mackler, director of legal policy at  the New York Immigration Coalition, said it is significant to hear a law enforcement official like Gonzalez call for protection of immigrants. The policy is a “huge shift” for Brooklyn, Mackler said.

Gonzalez, who joined the Brooklyn office in 1995 as an assistant district attorney, said that as a young prosecutor there was little discussion of immigration consequences. That began to change in the last few years, he said.

One of those episodes arose when Gonzalez, then an assistant D.A., watched as a man named William Hurtado took the stand against two known gang members accused of murder in 2012. His testimony was a “real act of courage,” said Gonzalez.

Hurtado, an Ecuadorian cab driver, came to the United States in 2002 to escape the threat of violence himself, but after his testimony he was forced to relocate with his family due to death threats.

“This is exactly the type of person that we need in Brooklyn,” said Gonzalez in an interview shortly after his election last month.  “Someone who, on at least two occasions has shown his bravery (and) has put himself at risk.”

Even more courageous, Gonzalez noted, was Hurtado’s decision to call 911. At the time he spoke to police and prosecutors about the murder, Hurtado was an undocumented immigrant with a harassment charge on his record that made the threat of deportation even larger. and he had missed a 2005 hearing in immigration court – a violation that placed him on ICE’s radar. The harassment charge was later dismissed. Gonzalez said it was a “fundamental fairness issue” that Hurtado should have to live in fear.

In 2015, Gonzalez worked as a top aide to his predecessor, the late Ken Thompson, on a program dubbed “Begin Again.” The pair worked with district attorneys across the city to vacate over half a million decade-old summonses, for low level crimes such as violating the open container law or riding a bike on the sidewalk. Most cases would have resulted in a fine, not time served. But many of the summonses, Gonzalez said, were for undocumented people too scared to come to court.

That fear, said Gonzalez, has greatly increased in recent months. Since President Trump’s inauguration, prosecutors and defense lawyers alike have been disturbed by an increased ICE presence in Brooklyn courts. In a number of recent incidents, immigrants charged with a crime have been detained by ICE agents observing courtroom proceedings. 

“I find it unacceptable that ICE can come in and remove a defendant who has not been convicted of a crime, before their case has been resolved,” said Gonzalez.  “In a lot of cases it frustrates fundamental due process.”  

Following the seizure by ICE agents of a defendant in a domestic violence case in a Brooklyn court on November 28, Gonzalez chimed in on the same side as public defenders who had formed an impromptu picket line outside the courthouse. “I join with our public defenders in calling on ICE to reconsider their misguided policy and stop conducting raids in courthouses,” Gonzalez tweeted.

Gonzalez said most judges have been supportive of his immigration initiative. But Hechinger said that some judges still insist that a defendant’s immigration status be put on the record when pleas are recorded. 

As part of his efforts, Gonzalez has been holding monthly forums with community members to spread the word about the complex legal issues confronting immigrants. Last week, he spoke at the Islamic Center of Bay Ridge, where he encouraged people to immediately relay any immigration concerns to defense attorneys.  

DAs outside of New York are taking note. Prosecutors from Baltimore, Los Angeles, and Chicago have reached out to Gonzalez to talk about similar programs in their jurisdictions, according to his office. 

Hechinger, the public defender, hopes to see more action locally.

"All borough DA's offices should be taking immigration consequences extremely seriously, given that we in New York City and in New York State pride ourselves on being a sanctuary and given the unique power of prosecutors to determine each and every point of a criminal case,” said Hechinger.

As for William Hurtado, after years of monthly check-ins with immigration authorities, he was abruptly detained when he appeared at federal immigration offices in June.  He was held for more than five months until his release in November.  Gonzalez, who wrote on behalf of his former witness to immigration authorities, thinks Hurtado has a good chance of winning his immigration case. He said there is more at stake than just one man’s fight to avoid deportation.

“If we lose the good will of the people we serve, public safety will be jeopardized,” said Gonzalez.  

Part of NYC/45: Tracking the Trump Effect in New YorkA team of students at the CUNY Graduate School of Journalism investigate the impact of President Trump’s policies on his home state and town.

 


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