Prosecutors Fight for Federal Deference on Deportation

(CN) – Federal prosecutors going back to 1942 took state determinations into account when deciding if criminal convictions against noncitizens should bear on their immigration status.

After U.S. Attorney General William Barr changed the protocol three months ago, proposing a rule that would allow the Justice Department to second-guess state determinations, more than 40 state and municipal elected prosecutors fired back on Friday.

“Overriding local prosecutorial determinations and attaching immigration consequences to convictions vacated for valid substantive or procedural reasons undermines transparency and a public sense of consistently applied legal principles, and therefore imperils public trust and perceptions of legitimacy,” the coalition wrote in a 32-page brief.

Led by Brooklyn District Attorney Eric Gonzalez, the prosecutors contend that Barr’s proposal threatens the “separate sovereigns” principle as well as the people of the states and cities they protect.
“By disregarding state and local decisions, the federal system may undermine the legitimacy of all justice system actors, and accordingly threaten public safety,” they wrote in their brief, represented by Matthew Biben with the firm Debevoise & Plimpton.

Gonzalez emphasized that local prosecutors are best-placed to judge their own cases.

“Justice requires a careful consideration of the facts of each case,” the Brooklyn DA said in a statement. “This type of evaluation is best done at the local level with a consideration of community needs, which is why Congress and the Board of Immigration Appeals has long deferred to the state’s discretion to make criminal justice decisions regarding criminal convictions and sentences — including decisions to modify those convictions and sentences.”

The Trump administration has been at odds, and in court, various times with local law enforcement in liberal jurisdictions over policies that are not in line with its immigration agenda. New York, Philadelphia, San Francisco and other cities have sued in the past for conditioning federal funding of local law enforcement on abandoning sanctuary-city policies that limit cooperation with Immigration and Customs Enforcement.

New fault lines have been emerging on the immigration consequences for noncitizens who are convicted of crimes that are later vacated.

Manhattan District Attorney Cyrus Vance has boasted of his Collateral Consequences Counsel, what he described as a “first in the nation” initiative created in April 2007 to assess the repercussions of plea and charging decisions for noncitizens.

“That could mean offering pleas to alternative, nondeportable charges,” Vance said in May 2017. “It could mean that we agree to seal a case early.”

Fair and Justice Prosecution, a network of local prosecutors, said that such considerations are essential for building trust in the justice system.

“Sometimes that duty includes revisiting old cases where incorrect, unjust or excessive sentences were imposed, and for immigrants, sometimes that means assessing whether penalties would inflict disproportionate harm on that individual, their family, and the community simply because of their immigration status,” the group’s executive director Miriam Krinsky said in a statement. “Any change to decades of immigration procedures and precedent would unduly limit the discretion of elected prosecutors and infringe on state and local rights.”

The 43 elected prosecutors sent their brief to the Justice Department’s Executive Office of Immigration Review, which did not immediately respond to a request for comment.

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