Advocates Call for Rehabilitation, Not Deportation...

NEW YORK, NY (06/05/2007)(readMedia)-- Immigrant rights groups and criminal justice organizations expressed support for the recommendations of the Association of the Bar of the City of New York in its report today on the immigration consequences of participation in diversion programs, which provide rehabilitation as an alternative to incarceration. Due to a disconnect between local diversion program policies (which require a defendant to plead guilty to participate in most programs) and technical provisions in immigration law, immigrants who successfully complete court-ordered rehabilitation programs—and earn the dismissal of their criminal charges—may still be deportable on criminal grounds. Often, these immigrants are unaware that their participation in these programs may result in their deportation and other negative immigration consequences.

The City Bar report calls for a stronger state advisory law that will require courts to advise immigrants in all cases of the immigration consequences of their guilty pleas. The City Bar report also calls for a change in local diversion program policies, so that defendants can participate in these programs without having to enter a guilty plea. The report is the first of its kind to focus on the deportation consequences of the city’s diversion programs for immigrant New Yorkers.

Advocates who work with immigrants in the city’s criminal justice system have long been concerned about these issues. “We have seen this problem often. Immigrant defendants who are required to plead guilty as a pre-condition to enter a treatment program are faced with a Hobson's choice,” said Harvey Weinig, Senior Director of Court Advocacy of the Fortune Society. “If they do not plead guilty and are forced to trial, in all likelihood they will be sentenced to jail if found guilty and deported at the end of their sentence.  If they plead guilty, enter and successfully complete a treatment program, they still face the real possibility of deportation.”

Other cities and states have strong advisory statutes that warn defendants of immigration consequences of guilty pleas in all cases and have innovative diversion programs that permit defendants to enter rehabilitation programs instead of incarceration without having to plead guilty first.

“It’s unfortunate that in a city like New York, which prides itself on being immigrant-friendly, non-citizen legal residents can’t avail themselves of the rehabilitative services available in the myriad treatment courts that have been established city-wide,” said Ward J. Oliver, Staff Attorney with the Legal Aid Society’s Immigration Law Unit. “The policy of requiring participants to plead guilty before they can participate in a program means that even after successful completion, the initial plea will be considered a ‘conviction’ under the Immigration and Nationality Act. For the immigrant, success can mean no criminal record in New York State, but mandatory deportation from the United States.”

New York City is home to 1,446,918 immigrants, approximately forty-nine percent of whom have resided in the United States for at least fifteen years. Many of these immigrants—including lawful permanent residents and refugees—may be subject to deportation for even a minor interaction with the criminal justice system. It costs approximately $2,885 per month to detain a person in an immigration prison pending deportation—which can take months or even years. Once a person is deported, additional costs accrue due to family separation, as the deportee’s spouse, parents, and children struggle to support themselves after losing a care-taker and wage-earner. Some deportees face dangerous conditions in the country of deportation, due to poor medical treatment, civil unrest, and persecution.

Given the stakes involved, advocates question the purpose of deporting individuals on criminal grounds when they have successfully undergone rehabilitation programs and received a dismissal of their charges.  “We have worked with prosecutors to defer prosecution rather than requiring the client to plead guilty in a small number of test cases,” said Lisa Schreibersdorf, Executive Director of Brooklyn Defender Services. “We support greater use of this strategy.  Legal immigrants who acknowledge their problems and seek help by way of drug or mental health treatment should have every chance to resume a productive life with their families in this country.”

Support for these alternatives is growing as more people in the criminal justice system become aware of the problem. “Many different players in the criminal justice system—immigrant defendants, defense attorneys, prosecutors and judges alike—have expressed concerns about the impact of current criminal justice policies on immigrant communities in New York City,” said Alina Das, a Soros Justice Fellow with the New York State Defenders Association Immigrant Defense Project and a member of the City Bar’s Criminal Justice Operations Committee. “Criminal justice policies that unintentionally lead to the deportation of individuals who have successfully completed rehabilitation programs undermine the criminal justice system’s goal of creating stronger and safer communities in the U.S. The time is ripe for change and we hope that the City Bar’s recommendations will be implemented.”

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