From [HERE] Since noncitizens can be deported after convictions on mere misdemeanors, they are entitled to have those charges decided in jury trials, New York’s highest court ruled 5-2 Tuesday.

The ruling stems from the 2012 prosecution of Saylor Suazo with numerous assault and harassment crimes. Suazo, who remained in the United States illegally after his visa expired, was accused of throwing the mother of his children to the floor, and then choking and beating her. A month later he was charged with criminal contempt after he violated a restraining order.

Before trial, prosecutors had the charges reduced to class-B misdemeanors, which are usually punishable by 90-day maximum sentences and qualify as petty crimes that can be tried summarily without a jury.

Suazo nevertheless could face deportation proceedings if convicted, but the trial judge disagreed that this entitled him to a jury trial.

After the bench trial concluded in 2012, Suazo was found guilty of the assault charge, as well as menacing, obstruction of breathing or blood circulation, and attempted criminal contempt.

A three-judge appellate panel affirmed the judgment, finding that deportation is a collateral consequence of conviction, but the New York Court of Appeals reversed 5-2 on Tuesday.

Writing for the majority, Judge Leslie Stein called it technically correct that deportation is a civil collateral consequence of a state conviction. She also noted, however, that deportation is practically inevitable when noncitizens face even class-B misdemeanors.

“Detention — which closely resembles criminal incarceration — may last several days, or it may last months or years,” Stein wrote.

“A noncitizen who is adjudicated deportable may first face additional detention, followed by the often-greater toll of separation from friends, family, home, and livelihood by actual forced removal from the country and return to a land to which that person may have no significant ties,” the 22-page opinion continues.

Stein wrote that Congress alone should decide whether federal and state criminal law convictions should carry the additional penalty of deportation.

The majority’s ruling cited federal deportation statistics since 1996 showing an increase in deportation in such cases.

In 2017, immigration officials issued more than 142,000 requests for other law enforcement agencies to detain noncitizens rather than release them from criminal custody, Stein wrote. “This connection between the criminal justice system and immigration removal cannot be denied,” she wrote.

As state courts begin now to weigh whether noncitizens are entitled to a jury trial, Stein added that defendants bear the burden of proving they are entitled to one.

Judges Michael Garcia and Rowan Wilson dissented separately from the majority.

In his dissent, Garcia wrote that the threat of deportation does not automatically transport petty crimes into serious ones covered by the Sixth Amendment, and that the U.S. Supreme Court must weigh in on the issue.

Garcia also noted the majority’s ruling carves out special treatment for deportation and could also lead to a right to jury trials in other class-B misdemeanor cases, such as those that result in the loss of public housing.

“It is doubtful that importing federal immigration law into the  penalty analysis was something the Supreme Court intended when it made the Sixth Amendment right to trial by jury for ‘serious’ offenses applicable to the states,” Garcia wrote. “In the end, the Supreme Court has the ultimate authority to settle this issue.”

Wilson meanwhile argued that deportation — though disruptive and severe — is insufficient to trigger the Sixth Amendment.

Attorney Mark Zeno of the Center for Appellate Litigation, who represented Suazo, praised the ruling and noted that the D.C. Circuit also has upheld the right to jury trials for noncitizens facing deportation.

A spokeswoman for the Bronx District Attorney Office meanwhile said that the ruling conflicts with U.S. Supreme Court precedent.

“We understand that while the Court of Appeals addresses the harsh realities presented by the possible consequence of deportation for noncitizens, its decision presents conflicts with existing Supreme Court precedent that must be resolved,” the spokeswoman said in a statement.

“This decision creates ramifications, including serious backlogs and disparities in the administration of justice, for the courts of this state. We are considering taking the case to the Supreme Court to address the crucial questions this decision presents.”