New City Attorney’s Office Policy Could Protect Some Criminals From Deportation

originally posted at 5:30 last night

Last month, City Attorney Pete Holmes quietly enacted a new policy which could shield immigrants—including undocumented immigrants—convicted of misdemeanor crimes from deportation. 

It’s a bit complicated, but in short: when someone is convicted of a gross misdemeanor, prosecutors used to request a 365-day sentence.

A 365-day sentence means the person convicted can be considered an “aggravated felon,” and their case can brought under review by Immigration and Customs Enforcement [ICE]. 

In order to protect their clients from falling into ICE’s hands, defense attorneys for immigrants would typically request a 364-day sentence, effectively throwing up a red flag to federal immigration officials to look at the case. 

City prosecutors will now request a maximum of 364 days in jail, so that ICE agents won’t be immediately tipped off that someone might have questionable immigration status. 

The city attorney’s office says they’re making the change to comply with laws that prohibit city employees—including police officers—from checking on someone’s immigration status, unless they’ve committed a felony, or have previously been deported.

“If it’s a person’s first time every committing a crime,” says Craig Sims, criminal chief in the city attorney’s office, “it may not be appropriate to ask the entire [sentence].” 

Sims says prosecutors have the discretion to make exceptions, but that ultimately, “it’s going to be up to the judge…to make the final decision” on sentencing. 

When asked whether he had spoken with immigration officials about the policy change, Sims said he had not. “We are of the belief that we are compliant with the Seattle Municipal Code,” Sims says. “If we receive any information that we are hindering ICE or any federal immigration laws…we will redress this issue.” 

ICE spokeswoman Lorie Dankers doesn’t believe the change will create more work for immigration enforcement officers. 

Dankers says ICE agents will continue to “go into jails to interview individuals who are foreign-born” to determine whether they should be deported. 

“We’ll continue to do the job we do. We can place ICE holds on people we think could be removed from the country,” she says. “It doesn’t really make our jobs more difficult.”

The obvious Minuteman talking point on the law change is that the City Attorney’s office is going out of its way to protect people who are in the country illegally from deportation. Holmes did not respond to several requests to preemptively respond to such complaints. Instead, his office prepared a press release on the issue:

As part of efforts to comply with the Seattle Municipal Code’s “don’t ask, don’t tell” ordinance regarding citizenship status – and to treat citizens and noncitizens equally in criminal prosecution – the City Attorney’s Office has begun asking the Seattle Municipal Court to impose 364-day total sentences, rather than 365-days sentences, in most gross misdemeanor cases.

 Although the law allows the office to seek sentences of up to one year in jail and/or up to a $5,000 fine for gross misdemeanors, prosecutors have typically sought 365-day sentences, with anywhere between zero and all 365 of those days suspended. In most cases, defendants are sentenced to serve far less than 365 days, with the balance of the 365-day sentence suspended, and the defendant only serves the balance of the suspended days if he or she violates conditions imposed by the court.

Under federal law, state and local criminal convictions and sentences can affect noncitizen defendants’ immigration status in various ways.  Federal immigration law counts the total sentence (including both days suspended and days actually served), meaning that a noncitizen defendant who is convicted of certain crimes and, for example, sentenced to serve five days in jail (with another 360 days suspended) would have a one-year sentence in the eyes of immigration law. Some deportation grounds are triggered not just by the type of crime, but also where the sentence imposed for the crime is one year or more (including suspended time).  This means that noncitizen defendants, many of whom are refugees and lawful permanent residents (green card holders), can face automatic deportation for gross misdemeanor offenses solely because they received 365-day suspended sentences.  This is true despite the fact that they may have served very little or, in some cases, no jail time for their sentence.  

A one-day difference in the amount of suspended jail time imposed by the court (364 days instead of 365 days) can avoid this outcome.  As such, defense attorneys often ask for a total sentence of 364 days, rather than 365 days, when their clients are noncitizens. Seattle Municipal Code 4.18.015 prohibits city employees from “inquir[ing] into the immigration status of any person, or engag[ing] in activities designed to ascertain the immigration status of any person.”  By asking for 364-day total sentences instead of 365-day sentences in most cases, the City Attorney’s Office will no longer put noncitizen defendants in a position of having to identify themselves as noncitizens by requesting 364 day sentences.

This policy will apply equally to citizen and noncitizen defendants.  In certain cases, primarily those instances where the offense is serious enough that CAO requests the maximum sentence of a full 365 days served in jail with none suspended, prosecutors will continue to ask for 365-day sentences for both citizen and noncitizen defendants.

This change in policy will not eliminate the immigration consequences of criminal convictions for all noncitizen defendants. The cases this new policy is likely to impact are those where (1) the defendant is in the United States legally or has an avenue for obtaining legal status and (2) a 365-day total sentence would be the sole factor triggering the defendant’s loss of legal immigration status or loss of the defendant’s avenue for obtaining legal status.  Certain crimes, such as most domestic violence offenses, render a noncitizen defendant deportable regardless of the sentence, and others, including many misdemeanor traffic offenses, do not necessarily render a noncitizen defendant deportable even if the sentence imposed is 365 days or more.

These changes are part of the City Attorney’s Office’s broader ongoing efforts to review and, where appropriate, revise its criminal sentencing recommendation policies to bring greater proportionality and fairness to misdemeanor prosecution in the City of Seattle.