There's No Such Thing As a Low-Level Arrest When You're Undocumented

Loitering arrests increased more than 180 percent between January and October over the same period last year, even as arrests for other prostitution-related charges declined.

The percentage of arrestees who are undocumented, or trans, is impossible to know. Out of nine clients the Brooklyn Law School clinic has picked up this fall, five are undocumented transgender women. “An unjustified arrest can end in the deportation of trans women who have fled their countries due to violence,” said Bianey Garcia, an organizer with the Trans Immigrant Project at Make the Road New York, who lives and works in Jackson Heights.

Since 2014, the New York Police Department has refused to hold non-citizens in custody for Immigration and Customs Enforcement, with some exceptions. The city says this lack of overt cooperation makes New York a Sanctuary City. However, arrests still channel New Yorkers into a database that ICE can access.

In Jessica’s case, her lawyers argued successfully for the loitering charge to be dismissed and sealed: a protection against deportation. But even a sealed case complicates her chances of getting asylum or a green card. When applying for immigration relief, “we have to report all arrests, and we have to explain all arrests,”says Carmen Maria Rey, an immigration attorney with the Brooklyn Law School clinic. In Jessica’s case, “one of the things we’d have to provide would be the police reports.”

Under Section 212 of the Immigration and Nationality Act, a person is ineligible for documented status if they have “engaged in prostitution within ten years of the date of application.” Though Jessica can still apply for asylum or a visa, the system is more sympathetic towards victims of human trafficking. “It would be different if [Jessica] herself identified as a victim of human trafficking, which she doesn’t,” Mogulescu said.

---

Attorneys and advocates say multiple factors may have contributed to the recent spike in loitering arrests, including community complaints about street prostitution, and arrests as a pretense for questioning about community-level crime.

There are assumptions about what trans people do. About how women should look, about how women should behave, about an area of the city.

According to Jessica, on the night of her arrest police asked her to share information about drug deals in the precinct, and other women with open warrants. “I don’t want to say nothing because I’m scared,” she recalled. “They want me to work with them.” Mogulescu told Jezebel that she has heard similar accounts from several trans clients, and that “these loitering arrests are a pretense for other information.” The NYPD did not immediately comment on the allegation.

The increase in arrests may also be the result of more sex workers on the street. Since the federal government’s seizure last spring of Backpage.com, a main online hub for sex workers to find clients, sex worker advocacy groups have seen a surge in street traffic, says Kate D’Adamo, a sex worker advocate and healthcare consultant for nonprofits. “A lot of girls, they can’t work online anymore and that was an easy way to work,” Jessica told Jezebel. “Now they have to go outside.”

---

Asked about the increase in loitering arrests, NYPD Lieutenant John Grimpel stated that, “precinct Commanding Officers take community quality of life complaints seriously, and those complaints, including those of street prostitution, are strictly enforced by precinct personnel.”

Last fall, Manhattan Senator Brad Hoylman and Assemblywoman Amy Paulin, whose district includes New Rochelle and White Plains, introduced legislation that would strike the loitering statute from the criminal code. Freshman Brooklyn Senator Julia Salazar made headlines this summer for adopting a sex worker rights platform, which includes the bill. (Bushwick’s 83rd Precinct, in Salazar’s district, is one of five precincts that accounted for nearly 70 percent of these arrests between 2012 and 2015.)

“I think that the goal should be decriminalization [of sex work]. In the meantime we have to stop this charge,” Salazar told a packed room of supporters in July.

Newly-elected Democratic State Senator Jessica Ramos, whose district includes Jackson Heights, told Jezebel that she is also supportive of Hoylman’s bill. The loitering charge is “no different than terrible policing policies, like Stop and Frisk, and only targets the most vulnerable populations in my district,” she added. Her predecessor, the late state Senator Jose Peralta, was more concerned with community complaints about prostitution. “When it comes to the police officers doing their job and eliminating the prostitution, we respect that,” he told The Cut earlier this year.

“I will say that I am optimistic and hopeful that this legislative session can usher in some change,” Mogulescu told Documented last month. “This is a simple legislative fix. It’s a problematic law, it’s abused, [and] we have a well-documented history at this point of how this law is used, and to what end.”

Meanwhile, Jessica hopes that her lawyers will be able to help her get a green card. She speaks English, Spanish, and Korean, and dreams of getting a job at a hospital, providing translation services to patients.

“My mom came here because she wanted a better life,” she explained. “I don’t want to go back there. It’s too dangerous, and too much discrimination. Most of the trans girls I know, they come here [to the United States] to stay.”

Emma Whitford is a freelance journalist based in Brooklyn.