Appellate Advocates Urges Passage of the Fair Courts for Immigrant New Yorkers Act

We need fair courts for immigrant New Yorkers – it’s long overdue

As defense attorneys and advocates for immigrant New Yorkers, we often speak to people who are shocked to learn that a plea deal they took has put them at risk of detention, deportation, and permanent exile from the United States. Often, this happens because their criminal defense attorney failed to advise them properly and because the judge in their case did not alert them that there could be immigration consequences before they entered their plea. 

However, there is an effective remedy to ensure that all immigrants are informed of these consequences. For the last three years, we have been working with advocates and legislators to guarantee all New Yorkers basic due process by passing the Fair Courts for Immigrant New Yorkers Act

The bill is urgently needed. While immigrants have a right to receive a notification from judges that there could be immigration consequences of their plea in felony cases, there is no standardized language. Immigration law is complex, constantly changing, and its application is highly individualized to a person’s circumstances. Judges often make statements from the bench that are incorrect or misleading, even conflicting with correct advice immigrants receive from their attorneys. Furthermore, the right currently does not extend to guilty pleas to misdemeanors and violations, which many people are surprised to learn often lead to detention and deportation. 

The Fair Courts bill, however, would enshrine a number of important changes, including standardizing the language judges use to alert immigrants, allowing a defendant additional time to get advice regarding possible immigration consequences, and mandating notification for all cases, including misdemeanors and violations. The bill also requires a remedy when judges fail to comply with the requirement. Fourteen other states already have laws in place that require a standard notification to protect immigrants’ due process rights in court. 

The Legislature knows how important this bill is. In fact, they’ve passed it in the last two sessions. But Gov. Hochul has vetoed it twice – denying justice for many. Now, as the legislative session in Albany has wrapped up, we are urgently calling on legislators to not forget passage of this bill and to demand that the governor sign it. 

The lives of so many people across the state hang in the balance. People like Oscar (who is using a pseudonym for this opinion piece), who has lived in the United States as a lawful permanent resident since he was a young child. He faced criminal charges and was offered a plea deal. In court, the judge said about his possible deportation, “if you can fight it, good for you.” Oscar figured that if the judge thought he could fight it, then he had an opportunity to stay in this country with his family. It was only after he accepted the deal that Oscar found out that his plea took away any possible defense against deportation. Oscar now lives in fear of being deported to a country of which he has no memory and where he doesn’t know anyone. 

Oscar and many other immigrant New Yorkers – especially Black and brown immigrant New Yorkers who are disproportionately impacted – should not be facing this devastating reality as a result of pleas they took without being properly notified of a potential immigration consequence. 

In 2010, the Supreme Court’s landmark decision, Padilla v. Kentucky, impacted millions of immigrants around the country by recognizing that immigrants facing criminal charges have a right under the Sixth Amendment to advice from their defense counsel about the immigration consequences of a guilty plea. 

In New York, we have worked for years to safeguard this constitutional right for immigrants facing charges in criminal courts, including the rights to effective assistance of counsel and due process. Central to these efforts are judges themselves, who – if they were to provide the clear and accurate notification that this bill requires – would play a fundamental role in ensuring that immigrants are alerted to get advice they are entitled to from their attorneys. 

But immigrant New Yorkers like Oscar aren’t getting those notifications and the consequences are dire – leading to painful family separations and permanent exile from their homes. 

We are long overdue to pass this bill, which would enshrine these constitutional rights and fundamental due process protections for all immigrant New Yorkers. A majority of our legislators in Albany understand this, which is why they already voted in favor of  the Fair Courts Act twice to ensure accountability for immigrant New Yorkers. 

The Legislature must pass this bill again this session and this time Governor Hochul must also recognize the constitutional rights of immigrant New Yorkers and sign the bill into law. 

Justice has been delayed for far too long. Now it is time to ensure fair courts for all New Yorkers.

Written by Marie Mark and Angad Singh. Mr. Singh is the Supervising Attorney for the Non-Citizen Post-Conviction Relief Practice at Appellate Advocates.