Think Immigration: How Noncitizens Are Disadvantaged at Arraignments by “Neutral” Practices and Procedures

AILA welcomes this blog post from Diversity, Equity, and Inclusion Committee Law Student Scholarship recipient Asmaa Hamadan, part of a series intended to highlight the important ways in which diversity, equity, and inclusion inform immigration law and policy. More information about AILA’s DEI Committee and its important work is available on AILA’s website.

In the United States, people facing the criminal justice system have the right to be treated fairly and equally, as evidenced by the seemingly neutral language of our states’ criminal law and procedural statutes. Despite this presumption, noncitizens are burdened with navigating a system that treats them differently from U.S. citizens at the very early stages of a criminal law case—the arraignment stage. Because criminal law is governed by the state legislature, my focus will be specific to New York because my personal and academic experiences have been centered in New York.

In New York, people have a right to an arraignment proceeding, generally, within 48 hours of their arrest. An arraignment is essentially a session where an arrested person can see a judge to learn about the charges against them. Simultaneously, the court will determine whether the arrested person can or should be (1) released on their own recognizance (free to leave court), (2) placed under supervised release (conditions a person is placed under vary based on supervision level), or (3) not released with bail imposed. The purpose of this determination is to ensure the arrested person's return to court.

While this might sound reasonable on a surface level, the law, in practice, ultimately discriminates against noncitizens, along with many other marginalized groups of people. C.P.L. §510.10(1) provides the factors that a court weighs when making this determination, which include, but are not limited to:

1. The principal's activities and history;
2. . . . the charges facing the principal;
3. . . . criminal conviction record if any;
4. The principal's previous record with respect to flight to avoid criminal prosecution;
5. Any violation by the principal of an order of protection issued by any court.

I have experience interning with a public criminal defense organizations in NYC, and I witnessed time and time again that our noncitizen clients were deemed a “flight-risk,” despite some young clients having lived their whole life in New York City. As noncitizens, they seemed to be automatically considered a flight risk.

This assumption is further detrimental when coupled with the biased CJA (Criminal Justice Agency) report, which generates a score for the prosecutors and judges to consider when deciding an arrested person’s freedom. The CJA score considers whether a person has a phone number and how long they have resided at their current and previous addresses. This is very problematic, as it criminalizes poverty—a socioeconomic status that citizens and noncitizens face.

Many noncitizens struggle with obtaining stable housing, forcing them to reside at different addresses for less than two years at a time. The CJA scores them lower based on that, in addition to the noncitizen client’s immigration status.

This lower score, combined with the judge’s preconceived notions about who might be a “flight risk,” increases the likelihood of a more restrictive method, such as a high level of supervised release or bail, being set. Inevitably, this results in the pre-trial incarceration of many noncitizens, despite the principle of being presumed innocent until, and only if, proven guilty.

The system should be reformed to ensure that an individual’s situation is assessed holistically and not discriminate against noncitizens for factors they cannot change. While the criminal law rules and guidelines are crafted to sound neutral—providing a false sense of fairness and equality—the law in action proves otherwise, as non-citizens are burdened with biased assumptions that discriminate against them from the very first stage of their criminal law case—their arraignment proceeding.

About the Author:

Asmaa Hamdan (she/her)
Northeastern University School of Law
Class 2024

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