In a year when the State Budget was paramount, the Washington State legislature took up several immigration related bills, some with no fiscal impact, and others with a major fiscal impact. As the Washington State Legislative term winds down, but goes into special session to finalize the budget, this post focuses on several bills during the term. Immigration advocates supported some bills and opposed others. So far, we have been successful with each, although the session is not yet over.
Reducing the Maximum Sentence for Gross Misdemeanors to 364 Days
Immigration attorneys, advocates and allies pushed for two key bills that were ultimately passed and will be or have been signed into law by the Governor. First, SB 5168 reduces the maximum penalty for gross misdemeanors from 365 days to 364 days. I testified as Chapter Chair in support of this bill on behalf of the American Immigration Lawyers Association Washington Chapter along with colleagues from Washington Defenders Association, OneAmerica, the Seattle City Attorney’s Office, Washington State Coalition Against Domestic Violence, and Washington Association of Criminal Defense Lawyers. There was no opposition testimony.
This bill originally stemmed from a series of incidents and policies enacted in several courts around the state where judges were routinely issuing 365-day sentences, even if suspended in whole or part without considering the impact of deportation on green card holders and others. An aggravated felon (even if convicted of a misdemeanor) is barred from most forms of relief from deportation and ability to return to the U.S. in the future. The majority of individuals (regardless of status) that receive jail sentences actually serve very little time in jail, if at all. But for immigrants, the maximum potential or actual sentence received, regardless if suspended, can make a big difference in ability to stay in the U.S. However, uniform application of 365-day sentence policies actually violate the gross misdemeanor sentencing statute and case law that requires a judge to use his or her discretion, considering a range of factors, to set proportionate sentences on an individualized basis. They can set a sentence anywhere in the range from zero to 365 days depending upon the facts in the case. The new provision with a potential maximum sentence of 364 days now makes the outcome of maximum sentencing determinations to have equal application to U.S. citizens and non-citizens alike. Furthermore, the statute does not change the role of immigration judges to make individual decisions about whether relief from removal is warranted. Washington Defenders Association took the lead in drafting the bill that was sponsored by Senators Prentice, Kline, Regala, Chase and Kohl-Welles. This bill has been signed by the Governor.
Consumer Protection for the Unauthorized Practice of Law in Immigration Services
The second bill, SB 5023, the Immigration Services Fraud Prevention Act, sponsored by Senators Prentice, McAuliffe, Litzow, Shin, Kline, Pflug, Fraser, Chase and Rockefeller, was recommended by the state’s Attorney General as a consumer protection bill to clamp down on the unauthorized practice of law by non-attorneys holding themselves out as registered Immigration Assistants, notario publicos, immigration consultants or some other immigration specialist. The Immigration Assistant bill enacted in 1989 has resulted in several high profile prosecutions under the Consumer Protection Act where several registered Immigration Assistants, including some disbarred attorneys acting as Immigration Assistants, were accused of providing legal advice and violating other provisions of the Immigration Assistant Act and/or the Consumer Protection Act. Although many cases end up settling, the Attorney General’s office has a substantial active investigation docket revealing many immigration consultants also never even registered as Immigration Assistants in the first place. Moreover, the State Department of Corporations has lacked the staff and funds to monitor the program. Under SB 5023 as finally passed by the legislature last week, the Immigration Assistant designation is removed. Non-attorneys will still be able to translate documents, help customers find supporting documents and scribe answers to questions on to forms, but they will not be permitted to perform the work of a licensed attorney as defined by the Supreme Court, such as advising about what category of immigration to file under, to deciding what form is appropriate or interpreting the meaning of questions or giving advice about how to answer questions on immigration forms. Existing Immigration Assistants and others who want to become authorized representatives, must register within six months under the federal scheme as persons authorized to represent individuals before the Department of Homeland Security and the Immigration Courts.
I testified as Chapter Chair in support of this bill on behalf of AILA, and was joined by the Attorney General, OneAmerica, the Latino/a Bar Association, the Northwest Immigrant Rights Project, and individual attorneys. We also attended several stakeholders meetings held by the House of Representatives. The bill became rather contentious at times, but ultimately passed with an amendment requiring the State Supreme Court to study the issue of non-lawyer services for immigrants. This bill has not yet been signed by the governor.
Immigration advocates also successfully opposed several anti-immigrant bills (although, as of this writing, the session is not technically over, so anything can still happen in the final days.) The State legislature tried several times in separate bills (e.g., SB 5138, SSB 5407, SB 5333, 5338, HB 1577) and in amendments to SB 5023 above to change the requirements for obtaining drivers licenses that would impact immigrants, in legal status or not. The House Transportation Committee held an open hearing that was well-attended by people on both sides. However, in the end, attempts to create a two-tier license system or to require citizenship or social security numbers to get drivers licenses were defeated. Again, AILA provided written statements in opposition to these bills as we tried to educate the legislature about how both citizenship and social security numbers are misleading about what an immigrant’s status and long-term right to be in the U.S. could be. There are a myriad of statuses as well as in-between statuses while applications are pending, often years at a time, when people may be in the U.S. with the knowledge and authority of the U.S. government. Further, there are several perfectly legal statuses where, for example, dependent spouses have valid visas but the category prohibits them from working. Social Security will not issue a number without a work permit in many of these situations, which would result in the person not being able to drive or get a Washington ID despite being here lawfully for several years. Some legislators, not really understanding how immigration law works, have demanded that licenses be given only to U.S. citizens, which would exclude all persons here legally with green cards and nonimmigrant visas.
We emphasized the need for public safety, immigrants’ need to feel safe reporting crimes, and the need for all motorists to carry insurance. Further, drivers’ licenses are about being qualified to drive safely, not about where the person is from. Residency is about how long a person has lived in the State, not what a person’s immigration or citizenship status is, and DOL recently clamped down on proof of residency. These bills ultimately died in committee or amendments were deemed in violation of subject matter rules.
Another bill, HB-1272, sought to make E-Verify mandatory by requiring the Employment Security Department to verify that workers referred to employers are authorized to work in the United States. This bill died in committee.
Funding for Social and Health Services for Immigrants
Of major significance are cuts to services for immigrants as part of the budget process. AILA runs a series of pro bono Citizenship Days with OneAmerica that the state has funded in part for the last three years. I was instrumental in developing our partnership with OneAmerica when I was Chair of AILA’s Citizenship Day Committee in 2008-09. Unfortunately, the budget bill this year has had at different times steep cuts to the citizenship integration program. Ironically, cuts to this program defeat the concerns of some legislators about the availability of low-cost and free legal services for immigrants, an issue we discussed during the Immigration Services Fraud Protection Act debate. The State should be supporting Citizenship Days, not seeking to eliminate them, since attorneys provide thousands of hours of free services throughout the state. The budget bill has not yet been approved as of today, as the legislature will be in special session next week to finalize the budget; so, we are hopeful funding for this program will be maintained in the end.
Other budget proposals have sought to seriously slash or eliminate funding for immigrants (whether or not legal) for health care, social services and citizenship for the elderly and disabled. Consequently, immigrants are facing a disproportionate impact from budget cuts regardless of whether they are here lawfully. Unfortunately, this means the more people without health care (including US citizens cut from the same programs), the greater the likelihood of contagious disease being spread in our communities, and more people using expensive emergency rooms as a last resort.
Not only did I learn a lot about how our State legislature works this past year, but I found it also to be a great opportunity with my colleagues to educate the legislature about how our immigration laws work and impact real people on a daily basis. Ironically, this year fewer states ended up passing restrictive immigration laws than in the prior year. With budget cuts being such a big concern in most states, they are finally getting it that immigration enforcement should be the domain of the federal government. In addition, state legislatures are learning that immigration law is very, very complex and that attempts to legislate against broad categories of people have unintended consequences. It also helps to finally have some good U.S. Supreme Court and a few Washington State Supreme Court opinions that finally recognize the harsh consequences of deportation on American families and communities. And, finally, I more fully appreciate the power of the pen, the phone, the car and collaboration across groups – lots of people writing letters, making calls and showing up to testify can make a difference. That’s democracy in action regardless of your viewpoint.