The Bronx District Attorney’s Office, led by Democrat Darcel Clark, trained prosecutors to offer plea deals in child sex cases that leave the victim’s age out of the offense, so noncitizen defendants can avoid deportation. The finding comes from an Oct. 26 House Judiciary Committee staff report. The report found that district attorneys in all five New York City boroughs weigh immigration consequences when charging noncitizens and negotiating pleas.
The report quotes a 2019 Bronx guide on “immigration-conscious plea bargaining.” For sexual offenses against minors, the guide tells assistant district attorneys to “[o]ffer something that does not have the child’s age as an element of the crime.”
The same materials tell prosecutors to “[k]eep the firearm out of the record of conviction” in weapons cases and to “[k]eep the domestic relationship out of the record of conviction” in domestic violence cases. In stalking cases, prosecutors were told to offer a charge without “repeated instances or an intent to instill fear.” The committee wrote that Clark’s office trains prosecutors to “conceal facts from the record of conviction.”
Bronx training materials from 2023 tell prosecutors to “strive to ensure that a conviction for certain offenses does not lead to unintended and severe consequences.”
Whether the victim’s age is an element of the offense can affect whether the conviction provides grounds for deportation. Federal immigration law lists “sexual abuse of a minor” as an aggravated felony, which makes a convicted alien removable. In 2017, the U.S. Supreme Court ruled unanimously that for statutory rape offenses, the federal definition “requires the age of the victim to be less than 16.”
Immigration courts assess the elements of the offense to which the defendant pleaded guilty, so a plea that leaves out the victim’s age can fall outside that category. An alien removed after an aggravated felony conviction is “permanently ineligible for a visa,” according to the State Department’s Foreign Affairs Manual, unless the Secretary of Homeland Security consents to a new application.
In Queens, District Attorney Melinda Katz told prosecutors to “exercise extreme caution” with noncitizen defendants and not to “get caught up in the label of [f]elonies, [m]isdemeanors.” Her office employs an immigration specialist who “helps Assistant District Attorneys navigate through plea options.”
