New York's top court has just ruled that an immigrant has a right to a jury trial for criminal charges that could lead to his or her deportation, even if those charges are classified as petty misdemeanors. This may well have some significant implications for immigration enforcement.
The case revolves around a defendant named Saylor Suazo, charged with assault and other crimes over an incident where he's accused of attacking and strangling the mother of his children, and then later with criminal contempt for ignoring a court order to stay away from her.
Prosecutors in Bronx dropped the charges down to misdemeanors with a potential three-month sentence. This meant Suazo faced a bench trial and couldn't demand to be heard by a jury under New York City's laws. But under federal law, due the nature of the charges, if he were convicted he would most certainly be deported back to his home country. So, given the seriousness of the consequences, does that mean he's entitled under the Sixth Amendment to a trial by jury?
In a 5-2 decision, the New York Court of Appeals ruled that he is, overturning a decision by a lower court. The conflict at the heart of the case is whether deportation should itself be seen under the law as a form of punishment or penalty or as a "collateral consequence" of a crime, as prosecutors argued.
The majority ruled that deportation was indeed, a type of punishment, and a severe one at that. Therefore those who face deportation as a result of a conviction are entitled to a jury trial. Writing for the majority, Judge Leslie Stein noted:
There can be no serious dispute that, if deemed a penalty for Sixth Amendment purposes, deportation or removal is a penalty of the utmost severity. The deportation process generally involves detention by federal immigration authorities until administrative or judicial review prompts either the detainee's release or an adjudication that the detainee is deportable. Detention—which closely resembles criminal incarceration—may last several days, or it may last months or years…A noncitizen who is adjudicated deportable may first face additional detention, followed by the often-greater toll of separation from friends, family, home, and livelihood by actual forced removal from the country and return to a land to which that person may have no significant ties.
To be very clear here, this ruling should not be interpreted to mean that the court believes Suazo couldn't or shouldn't be deported for his crimes. Rather, the court is saying that deportation is truly a type of penalty that includes lengthy incarceration and separation from family. Since this punishment is much more severe than what would normally happen for a petty crime conviction, Suazo is entitled to a jury trial under the Sixth Amendment.
Suazo is not exactly the best poster boy to show how "petty" crime punishments are anything but when you're an immigrant in the United States. The case, though, highlights a significant nightmarish component of how the criminal justice system works for immigrants. This gap in due process protections has created a regime in which any interactions with the criminal justice system can be fraught with perils for immigrants, even in minor cases. Cases that would result in a slap in a wrist for most Americans can demolish immigrant families, even those here legally.
We see many, many cases of immigration officials attempting to deport immigrants for minor crimes. The tactic is what helped give rise to "sanctuary cities" in the first place, where local authorities won't cooperate with immigration officials rooting out illegal immigrants unless they're convicted of serious crimes. The American Immigration Council noted in a report from 2015 that the people who are classified as "criminal aliens" for deportation are often not the threats most Americans assume them to be. One-third of them had committed crimes relating only to the immigration process itself (like not being here legally). Another 15 percent had committed only drug crimes that include simple possession, and another 15 percent committed criminal traffic offenses (though that can include some serious cases like hit-and-run convictions). Every year the federal government attempts to remove thousands of immigrants for what are often relatively minor crimes or misdemeanors that have light penalties.
And note the year on that report—2015. The statistics actually originate from fiscal year 2013. While President Trump's hostility toward immigration is notable, he's merely a symptom, not a cause of this problem. It's a problem that has been growing since the passage of the Immigration Reform and Control Act of 1986, which led to the push to root out and deport immigrants with criminal convictions. The same report by the American Immigration Council notes that this push to find people to deport prompts ethnic profiling and to head into heavily Latino communities to arrest as many people as possible for petty crimes (including citizens) to find candidates for deportation.
If prosecutors were required to hear each of these cases in front of a jury before they could deport somebody, this could potentially lead to a dramatic change in immigration enforcement for the better. There could potentially be less of an emphasis on trying to deport every potential case and a focus on those whose crimes indicate they are not good citizens. That might actually mean that defendants like Suazo actually wouldn't get a light touch given the details of the case, and it's easy to see the possibility of a jury agreeing with the prosecution here. But if police and prosecutors have to panel a jury for every criminal case that involves potential deportation, it may incentivize them to use more scalpels and fewer shotguns when dealing with immigrants who run afoul of the law.
That assumes this ruling stands. It seems very, very likely that the Supreme Court is going to be asked to weigh in on this. Indeed, dissenting Judge Michael Garcia notes that the Supreme Court probably did not consider immigration law in its previous precedents establishing lines between what counts as a "petty" crime that didn't mandate a jury trial and what counts as "serious." He says, in his dissent, that he wants the Supreme Court to take up this case. The second dissenting judge, Rowan Wilson, takes it even further, noting that deportations have always been handled as administrative hearings, and if the logic of this ruling holds true, the entire system by which illegal aliens are removed is itself unconstitutional due to the lack of jury trials.
Read the New York ruling here. The District of Columbia Court of Appeals in June came to a similar (and similarly divided) conclusion in June that immigrants facing deportations as a result of criminal convictions can demand jury trials in misdemeanor cases. Read here.