By Jason Cruz
Northwest Asian Weekly
This past May, the Seattle City Attorney’s office instituted a policy intended to protect noncitizen immigrants from deportation for misdemeanor offenses.
Prosecuting attorneys for the city are requesting that the court sentence a defendant to a maximum of 364 days in jail for a gross misdemeanor instead of 365 days. This sentencing policy shields noncitizen defendants from the possibility of being deported on a single charge because receiving a sentence of 365 days or more, even if a defendant does not spend a day in jail, triggers an automatic notice to the Immigration and Naturalization Services (INS), which can lead to deportation proceedings.
The policy’s goals
The purpose of the policy is to “treat citizens and noncitizens equally in criminal prosecution,” according to a city press release.
“We implemented our new sentencing policy to comply with SMC 4.18.015, Seattle’s ‘don’t ask, don’t tell ordinance,’ ” explained John Schochet, who serves as special counsel and policy adviser to the city attorney.
The ordinance 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 a 364-day total sentence instead of a 365-day sentence, in most cases, the city attorney’s office will no longer put noncitizen defendants in a position of having to identify themselves as noncitizens.”
“One [365-day] charge could result in many immigrants being deported,” said Shankar Narayan of the American Civil Liberties Union (ACLU). The ACLU was one of several groups pleased that the city attorney implemented the new policy.
Another group, the Northwest Immigrants Rights Project (NWIRP), believes that the city policy is “a positive development” and “a step in the right direction,” according to its executive director, Jorge Barron.
The NWIRP represents the interests of low-income immigrants by pursuing and defending their legal status.
Barron indicated that there have been many immigrants from Asian communities who were unaware of the potential consequences when they met with their attorneys and accepted sentences that put their stay in the United States in jeopardy.
“We (ACLU) did talk to Pete Holmes (elected city attorney) and felt it was a due process issue that was involved,” said Narayan. The stance of the ACLU is that in the case of gross misdemeanor, deportation is a punishment that exceeds the crime.
Outreach and education
The new sentencing policy can help relations between authorities and immigrant communities. “This is an important step forward,” Narayan said. “We want people to interact with police.” The ACLU believes that this policy will instill trust in the police, which will help with serving the community and police investigations.
However, there is some confusion regarding implementation of the sentencing policy.
Attorneys in criminal defense and immigration law have e-mail listserves that inform them of the policies.
However, some in practice believe that most defense attorneys are not aware that sentences of a year or more for gross misdemeanors can result in the INS initiating deportation proceedings.
“A lot of them don’t know,” said Patrick Cantor, an immigration attorney with Buttar and Cantor law firm.
Cantor has experienced instances where attorneys did not know the consequences of a noncitizen receiving a sentence of 365 days in jail. He has represented clients in deportation hearings who were fined as little as $25 and received a 365-day suspended sentence (no time in jail) but were still subject to deportation.
New policy meets some resistance
While advocacy groups approve of the sentencing measure, there are opponents.
“We’ve received some negative feedback from people who are under the mistaken impression that our 364-day policy is an effort to shield undocumented immigrants from federal immigration authorities,” said Schochet. “It’s not. The policy is designed to protect legal immigrants from losing their status for certain misdemeanor convictions. People have generally been supportive once they understand that this is about legal immigrants, not undocumented immigrants.”
Schochet added, “Judge [Edsonya] Charles of the Seattle Municipal Court mistakenly believed that we were asking the court to adopt a ‘blanket policy.’ We didn’t. Our office makes a sentencing recommendation in every criminal case where there’s a conviction or a guilty plea. What we’re doing is reducing our recommendation of suspended days by one day in most cases.”
Proponents of the policy may lobby other offices for similar sentencing guidelines. Barron stated that the NWIRP will lobby for an extension of the policy. “We are working on other prosecutorial offices in getting them to adopt a [similar] 364-day rule.”
“In district courts, you have to negotiate with the prosecuting attorney to receive a sentence of 364 days,” said criminal defense attorney Jennifer Cruz. “Even in those cases, the judge ultimately decides the sentence of 364 or 365 days.” Cruz recalls representing an individual from the Philippines in a shoplifting case where a deal with the prosecutor was made to recommend a 364-day sentence, but the judge ultimately decided to hand down a sentence of 365 days. As a result, the defendant was subject to deportation to the Philippines. ♦
Jason Cruz can be reached at email@example.com.