Surprise Veto Upended Immigrant Rights Bill Sought Over a Decade

Legislators wanted to make judges warn defendants about deportation risks. They say Kathy Hochul’s veto left them blindsided.

Chris Gelardi   ·   January 6, 2023
Ultimately, the governors staff decided not to engage in those conversations and try to address concerns and instead veto it. | Ajay Suresh

A now-vetoed bill would have required judges to issue specific warnings to defendants about the possible immigration consequences — including detention and deportation — that they face if they plead guilty to or are convicted of a crime.

The legislation, sponsored by Senator Brian Kavanagh and Assemblymember Catalina Cruz, would have obligated judges to inform all defendants before accepting a plea deal: “If you are not a citizen of the United States, you may become deportable … based on a conviction by plea or verdict.” State lawmakers had long sought to establish such a standard: They introduced a version of the bill during every legislative session since 2009.

The bill passed both legislative chambers by early June, but following Albany custom, legislative leadership waited for the greenlight from Governor Kathy Hochul to send it to her desk, which took another six months. District attorneys raised concerns about the bill, and legislators had expected to negotiate tweaks. But rather than adjusting the legislation, Hochul vetoed it outright.

“There were discussions about ways we might clarify the bill for a chapter amendment,” Kavanagh told New York Focus. “Ultimately, the governor’s staff decided not to engage in those conversations and try to address concerns and instead veto it.”

The bill was one of hundreds that made their way to Hochul’s desk in December — part of New York’s chaotic annual tradition of taking final action on most of what state lawmakers have passed in the final weeks of the year. Hochul vetoed 165 bills in total, the second most in nearly a decade and a half.

In a statement, Kavanagh and Cruz wrote that their “attempts to negotiate in good faith … fell on deaf ears.”

New York has required some form of judicial deportation warning for certain criminal defendants since 2013, when the state’s highest court ruled that judges overseeing felony proceedings must notify all defendants before they accept a plea bargain that conviction can carry immigration consequences. Though intended to ensure that immigrants don’t get blindsided by deportation orders, immigrant and defendant rights groups say the decision was inadequate.

For one, it didn’t apply to misdemeanors. Recipients of Deferred Action for Childhood Arrivals (DACA) protected status become deportable if they’re convicted of three or more misdemeanors. And conviction of crimes as minor as drug possession can render legal permanent residents deportable and refugees ineligible for asylum.

And it didn’t tell judges what to say when offering their warnings. As a result, courtroom advisories can vary widely. Since the intersection of criminal law and immigration law are notoriously confusing, ad hoc, and ever-changing, criminal judges can easily give defendants misinformed advice — a problem that Kavanagh and Cruz’s mandate of specific language was supposed to address.

“You see judges basically go rogue and say all sorts of crazy things in court,” said Yasmine Farhang, advocacy director for the Immigrant Defense Project.

Hochul thought the bill’s language went too far. In her veto memo, she wrote that “clear due process protections for noncitizens are already in place,” calling the legislation’s requirement to provide a specific, consistent warning — and not to say anything else about immigration consequences — “rigid” and expressing concern that it “prohibits a court from using its discretion.”

These “hyper-technical requirements would result in the vacatur of otherwise lawful convictions where defendants were fully aware of the immigration consequences of their actions,” she wrote.

Backers say the goal of the bill was precisely to limit courts’ discretion around the warnings, since when given free rein, judges often give incorrect or misleading information.

In an August letter to Hochul, the Immigrant Defense Project and 11 defense organizations highlighted case transcripts where judges incorrectly told defendants that they “will” be deported if they’re convicted, or that they “may not rely” on their lawyers’ immigration advice, even though defense attorneys are supposed to take immigration consequences into account when advising their clients.

The state and New York City bar associations have echoed those concerns. In letters expressing support for the legislation, they cited “inconsistent,” “unreliable,” and “questionable” statements from judges.

“The goal is to make sure that if that draconian step [deportation] is potentially on the table, that the defendant in these cases who’s making the choice of whether to plea has full awareness of that,” said Kavanagh.

“A colloquy in criminal court is far from a new concept, and in this case it is the very lack of standardized language from the court that triggers many of the issues we see today,” said Farhang. “To us, the concern about ‘rigidity’ is simply a pretext for resisting expanding due process for immigrant New Yorkers.”

Hochul’s veto came as a surprise to the bill’s organizers. They thought they could make headway in preliminary conversations, but they stalled early — interrupting efforts to address workable issues brought up by the bill’s biggest detractors: prosecutors.

In a letter to Hochul sent the day before the Immigrant Defense Project’s, the District Attorneys Association of the State of New York (DAASNY) urged Hochul to veto the bill. DAASNY raised several concerns, but its chief issue centered on the bill’s potential to offer retroactive appeals: If enacted as passed, it would have provided defendants going back to 2013 the opportunity to appeal their convictions if they weren’t warned about possible immigration consequences — even if the court’s actions aligned with the previous requirements.

“Tens of thousands of felony and misdemeanor guilty pleas … would be subject to vacatur,” the letter said.

According to Farhang, advocates drafted an amendment to limit the retroactivity in line with DAASNY’s concerns.

DAASNY’s letter also expressed concern about US citizens abusing the bill to try to vacate convictions, even though the bill asserted that vacaturs could only happen if the conviction had “potential or actual immigration consequences” for the defendant. “We happily offered [another] amendment to make that crystal clear, since obviously that was never our intention,” said Farhang.

New York Focus asked DAASNY if any amendments would have sufficiently addressed the association’s problems with the bill. “Our letter sets forth our concerns and we have nothing more to add,” Morgan Bitton, DAASNY’s executive director, wrote in an email.

Hochul’s office did not respond to requests for comment.

Kavanagh said that he was surprised by the governor’s veto. “I think that this governor really is committed to justice and to making sure that people have their rights protected in this state,” he said. “I think vetoing this bill was inconsistent with that commitment.”

“We did get to the point of trying to understand what the specific concerns were, and talking about what kind of language would be necessary to address those concerns,” said Kavanagh. “And at some point that negotiation broke down in the governor’s office.”

It was one of the many casualties of New York’s annual end-of-session mania, where a flurry of signings, vetoes, and backchannel negotiations can leave legislators and advocates in the dark — and often caught off guard when the governor rejects their bills.

“Is this how democracy works in New York?” Farhang posed.

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal-legal system. His work has appeared in more than a dozen other outlets, most frequently The Nation, The Intercept, and The Appeal. He is a past recipient of awards from Columbia… more
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