Since President Donald Trump issued two executive orders designed to speed up and vastly expand the deportation process, the NYPD and City Hall have continued to deny the role that quality-of-life, or “Broken Windows” policing — issuing criminal charges or summonses for low-level offenses — has had in helping the federal government deport New Yorkers.
“If you get arrested for turnstile jumping, you’re not getting deported because of the arrest,” NYPD Deputy Commissioner Lawrence Byrne told reporters recently.
“We’re never going to turn people over on quality-of-life offenses, which is what the vast majority of crime is,” Mayor Bill de Blasio said on WNYC last Friday. “That’s the bottom line that people need to understand to begin with. Those would be the things that are ludicrous to deport someone over.”
While these statements are narrowly true (the NYPD will not directly hand you over to ICE for a minor offense) they fail to address the fundamental question of whether New Yorkers are being deported on the basis of the NYPD’s quality-of-life policing.
The answer to that question is yes, as the following stories of actual New Yorkers thrown into deportation proceedings makes clear.
On April 16th, 2015, Mark Henry had just come back from taking his daughter to Disney World for her tenth birthday when Immigration and Customs Enforcement agents arrested him at his Brooklyn home in the middle of the night.
Henry, whose real name is being withheld for fear of government reprisal, had been a green card holder for over 15 years. His three daughters, two of whom are attending New York City public schools, are all citizens, as are two of his sisters.
The 33-year-old was facing deportation to Jamaica because of two misdemeanor marijuana possession convictions from 2009 and 2011 given to him by the NYPD, according to his deportation order, which was provided to the Voice by his lawyers at Brooklyn Defenders. In that three year span, the NYPD made more than 136,000 arrests for misdemeanor marijuana possession, despite the fact that the New York state legislature decriminalized marijuana possession in 1977. During Henry’s subsequent deportation proceedings, no other charges against him were mentioned.
Below is Henry’s Notice To Appear, which ICE used to justify his arrest and removal:
Thanks to the city’s 2014 detainer law, the NYPD can’t hand you over to ICE based on a misdemeanor pot possession or turnstile jumping charge. Yet those same misdemeanors made immigrants targets for deportation under the Obama administration for years. Under the Trump regime, a simple criminal charge, or even an arrest that results in no criminal charge, makes nearly every undocumented immigrant a deportation priority. For green card holders, low-level charges will continue to make them a priority for removal under Trump.
“The statement that theft of services is not going to get you deported is not only false, but hides the fact that there are all these other low-level crimes that are getting people criminal records and rend them from their families,” said Scott Hechinger, Senior Staff Attorney at the Brooklyn Defenders.
Minor offenses such as turnstile jumping (otherwise known as theft of services), marijuana possession, possession of a crack pipe, trespassing, or possession of stolen or counterfeit goods, are considered “Crimes Involving Moral Turpitude,” according to the Immigration and Nationality Act, which can make someone, like Henry deportable, even if they’re a green card holder, officially known as Legal Permanent Residents. (This practice was supported by a 2000 Second Circuit Court decision made by Judge Sonia Sotomayor.)
The Voice has also obtained the Notice to Appear of a Legal Permanent Resident from the Bronx, who faced deportation to Colombia for a single marijuana violation — not even a misdemeanor — given to them in Suffolk County. They were arrested by ICE in their Bronx home in November 2012.
“I have clients who have been deported for violations, for low-level offenses, that were certainly the result of Broken Windows policing, including theft of services,” said Conor Gleason, Supervising Immigration Attorney at the Bronx Defenders.
In explaining their reasoning, the NYPD says that per a directive released to officers in 2014, only recidivists, not first-time offenders, are arrested for low-level crimes.
“The first three times you jump a turnstile, you get a civil summons, so ICE has no record of you,” said Byrne at a press conference last week. “The fourth or the tenth time you jump a turnstile, you’re getting arrested for the misdemeanor of theft of services and getting fingerprinted and ICE becomes aware of you only then.”
However, immigrations attorneys have told the Voice that they frequently defend clients who have been charged with a misdemeanor for committing a low-level offense for the first time, and others who have been deported solely on low-level charges that the NYPD has given them.
“People are arrested the first time they’ve ever jumped a turnstile, the first time they’re ever caught smoking marijuana, arrested the first time they’ve ever been found for trespassing,” says Hechinger. “It’s a fact that they are arresting these people.”
According to Legal Aid, one of many public defender agencies in the city, 946 of its clients had been arrested for the top charge of “Theft of Services” (turnstile jumping) from January 1st of 2017 until the end of February; 621 of those individuals were being charged solely with “Theft of Services,” meaning that the only reason they were in court that day was because of that low-level arrest, and not any outstanding warrants or other previous charges.
Asked for proof that the NYPD did not make arrests for first-time, low level offenses, the department sent the Voice the text of the 2014 policy guideline.
While lawyers argued his case, Henry sat in detention for seven months. Thanks to the Brooklyn Defenders’ participation in the New York Immigrant Family Unity Project, which provides free legal representation to immigrants facing deportation, Henry has been spared deportation, for now. However he is still at risk of being arrested again by ICE under the revised implementation guidelines. The NYIFUP program is one of only two in the nation.
Many other immigrant New Yorkers have not been so lucky, especially as the Obama administration prioritized the removal of those with criminal records. These following stories come from the attorneys at Brooklyn Defenders and Bronx Defenders, which both participate in NYIFUP.
Last year in Brooklyn, a street vendor in his fifties, who had been a Legal Permanent Resident for over thirty years, was arrested by ICE in a home raid based on two misdemeanor offenses given to him by the NYPD over the past ten years. One was for petit larceny and the other for criminal possession of stolen property. Those types of charges are popular among street vendors, who cannot often vouch for their supply chains, and targeted by the NYPD as part of Broken Windows. The man was put into deportation proceedings to Ecuador, a place he had not lived since he was a teenager.
A green card holder from Guyana, who came to the country legally in 2006, is currently in removal proceedings after an arrest by ICE last year based solely on a single turnstile jumping conviction given to him by New York City from when he was 16 years old. A Brooklyn resident, the man now has an immigration court date set for April to determine his fate.
In the Bronx, a man in his forties, who had been a Legal Permanent Resident since the late nineties, was deported in 2015 for two unlawful marijuana possession violations — not even misdemeanors — from 2007 and 2009, both given to him by the NYPD.
A man who got his green card in the mid-2000’s, whose mother and father were also green card holders, fell victim to the opioid epidemic, leading to a string of petit larcenies convictions in New York City, and was ultimately removed back to his country of origin in 2014.
Also in the Bronx, a Legal Permanent Resident since 1969 had a string of mental health issues and ended up homeless. They were arrested several times for jumping the turnstile. Based on these arrests, he was detained by ICE in 2016 and is currently in deportation proceedings.
“So are these people really those we want immigration to be focusing on?” Hechinger says of those being flagged by ICE for Broken Windows offenses. “Are these the people we want out of our country?”
For the Mayor Bill de Blasio, the answer appears to be an emphatic “yes.”
“Nothing going on now is changing our resolve to enforce quality of life policing,” the mayor told reporters last week. “If ICE pursues someone, unfortunately, we don’t always agree with them, but they’re going to do what they’re going to do.”