New York’s highest court boldly ruled Tuesday that deportation may be a more severe consequence than even a few months behind bars.
The divided decision created a situation in which two individuals charged with the same low-level offense have vastly different trial rights — a noncitizen is entitled to a jury trial, while a U.S. citizen is not.
The case involved Saylor Suazo, an immigrant with an expired visa. For Suazo, who faced a maximum of six months in jail on misdemeanor domestic violence charges, the possibility of being deported to Honduras was more severe than any penalty the state could impose, his attorney argued.
Suazo asked for a trial by jury, rather than a judge. The request was denied, and Suazo was found guilty.
“Deportation would be a life-changing event for him,” said attorney Mark Zeno, who represented Suazo on his appeal. “When juxtaposing the penalties — 90 days in jail versus permanent removal — there really is no comparison.”
Suazo’s argument hinged on whether the Sixth Amendment, which guarantees the right to trial by jury for “serious” offenses but not “petty” ones, applied in his case.
The distinction is subjective, yet the difference is significant. According to Zeno, a person is very likely to be convicted after a trial in front of a judge and more likely to be acquitted with a jury,
The Supreme Court has often looked to an offense’s penalty when defining its seriousness, generally drawing a line at crimes that carry a sentence greater than six months.
Although the vast majority of states afford jury trials to those facing any jail time whatsoever, New York City denies jury trials for Class B misdemeanors, which carry a possible sentence of at least six months in jail. (The rule, however, does not apply in the rest of the state.)
Zeno argued, “Deportation has become an inseparable consequence of a criminal conviction for immigrants because of the enforcement priorities of ICE in recent years.”
The New York State Court of Appeals agreed, overturning Suazo’s conviction.
In the decision, Judge Leslie Stein, writing for a 5-to-2 majority, said “the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty.”
The ruling reflects a sensitivity to undocumented immigrants. Particularly under the Trump administration, which has prioritized swift deportation and hard-line immigration politics, the possibility of federal immigration consequences vastly outweighs any minor criminal penalties for those at risk of removal.
Whether a crime is “deportable,” though broadly spelled out by statute, is specific to an individual’s immigration status. Now, if defendants ask for a jury trial, the criminal court judge will have to investigate the particular circumstances to determine whether they are entitled to one.
In June, the D.C. Court of Appeals reached a similar conclusion.
“The law kind of loses coherence when the court reaches a result like this. It seems to be a departure to the whole idea of ‘petty’ offenses to say that it’s ‘petty’ unless a noncitizen committed it,” said former New York Court of Appeals judge Robert Smith.
The reality for prosecutors in the era of “Making a Murderer” is that many jurors are skeptical of what police say. Trials are referendums on law enforcement, and, as attorney Zeno said, in New York City an individual is more likely to be acquitted of a misdemeanor if a jury votes on the verdict.
“Deportation is a very serious thing. But there are a lot of serious things in the world,” Smith said. “We don’t have jury trials for all of them.”
Bronx District Attorney Darcel Clark said her office is considering taking the case to the Supreme Court, the New York Law Journal reported.
“We understand that while the Court of Appeals addresses the harsh realities presented by the possible consequence of deportation for noncitizens, the decision conflicts with existing Supreme Court precedent,” Clark told the journal.
Smith also expressed concern that Tuesday’s decision is destined to cause administrative problems and backlog in lower city courts and that it could lead to courts unfairly administering justice.
With his conviction reversed, Suazo will receive what he was asking for all along — a second chance at trial with a jury of his peers.
To Smith, his former colleagues are debating an academic question: Suazo argued that he faced deportation because of the conviction. “They seem to think it doesn’t matter that he was deportable anyway,” he said.