Barring a Good Reason, Attorneys Can No Longer Mention Immigration Status

How the state Supreme Court decided immigration status was "generally inadmissible," and what's next.

By Hayat Norimine November 28, 2017

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"Are you currently a citizen of the United States?" 

On February 21, 2006, construction worker Alex Salas faced that question in a deposition after he sued High-Tech Erectors, the company who erected the scaffold he was standing on when he fell 20 feet and suffered 10 fractures, resulting in 13 surgeries. When the defense counsel outed him as undocumented before the first trial, the court argued it was relevant because his legal standing raised the question of whether he, if there were compensation, should be paid in U.S. dollars or pesos.

Starting in September 2018, attorneys can no longer ask someone in court about immigration status unless it's an essential fact. Earlier this month the Supreme Court adopted a new rule of evidence—known as ER 413—that left the burden on whoever is introducing immigration status to prove it's relevant to the case. 

Advocacy groups have been fighting for this rule since Salas lost in 2006, the concern being that undocumented immigrants underreport crime. That concern has grown with the federal government ramping up its search for undocumented immigrants, despite Seattle's sanctuary city status.

Just earlier this month, city council members reported three Immigrations and Customs Enforcement agents unsuccessfully tried to access a South Park apartment building to detain someone. And U.S. attorney general Jeff Sessions also sent letters to Seattle and King County officials warning letters about cooperating with ICE on information about immigrants. 

"This work started way earlier precisely for this kind of moment in time, where bias is really rampant and it's rampant in every part of our society," city council member Lorena González told PubliCola.

But a big question remains: Will this rule make a difference?

González, who was president of the Latino Bar Association, has represented immigrants as an attorney that ranged from wage theft to discrimination. And she says she would have to warn people on the negative consequences of bringing a lawsuit forward.

"We do think it has an impact," says David Martin, King County senior deputy prosecuting attorney. "It’s an access to justice question. People need to feel like they can come to a courthouse and get relief."

Proponents of the new rule often compared ER 413 to the federal rape shield law, which was created when law enforcement found rape survivors underreported the crime. And they still do, even with the law in place. 

"This is basically tailored the same way, and the rationale for both of those rules is the same—to get people to report crimes," Gonzaga University law professor Ann Murphy told PubliCola. "In general, are undocumented people likely to come forward and report things? No. Will this change it? Hopefully, but probably not to a grand extent."

Attorneys, especially criminal defense lawyers, often ask about immigration status. It's a common practice to introduce bias against an accuser or witness to reduce the credibility of that person in the eyes of some members of the jury. It also introduces motive for immigrants to lie: Victims of crime who are undocumented can apply for a visa that allows them to stay legally if they cooperate with law enforcement.

In Salas's case, according to the Supreme Court, it ultimately led to an unusual decision: The jury found the company was negligent—labor practice required that ladders have grips on them, and that's why Salas fell—but Salas wouldn't receive any compensation. 

When defense attorneys questioned Salas, he had been in the country since 1989 and, according to the Washington Supreme Court later, his chances of getting deported were "extremely low." He had no criminal history, and he had three children who were U.S. citizens. Nonetheless the jury knew he overstayed his visa.

To win an appeal, Salas had to prove that not only was the information introduced, but that bias affected the decision. And he did. When the Washington Supreme Court threw out the ruling four years later, Salas's case went back to the King County Supreme Court. This time the jury didn't know he was undocumented. And this time, he received $2.6 million. 

Attorney general Bob Ferguson and King County prosecuting attorney Dan Satterberg both wrote letters supporting the new rule. "It's a no-brainer," UW immigration law professor Angelica Cházaro told PubliCola

Nobody wrote against the rule for civil cases, but some opposed imposing the rule in criminal cases. Several opponents, like the ACLU, argued that the rule wasn't necessary. They also cited too much of a burden on the defense and the U-visa—which can be granted to victims of crime—as motive for immigrants to potentially lie in court just for permanent residency.

"We continue to view the criminal subsection of ER 413 as an unnecessary and superfluous procedural vehicle that creates too great a risk of impingement on defendants’ constitutional rights," the ACLU wrote. "Every criminal defendant has a constitutional right to confront the state’s witnesses—including the right to a full and fair opportunity to expose an adverse witness’s bias, prejudice, and/or motivation to lie."

Undocumented immigrants who cooperate with law enforcement are entitled to federal protection: The U-visa protects immigrants from deportation and can make them eligible to apply for a green card.

They are hard to get. King County itself in 2016 approved 55 out of 61 U-visas requested, but those visas must then get approved at the federal level. There's been high demand and few visas to give out: The U.S. grants only 10,000 U-visas every year, and NPR reported last year a backlog of 64,000 applications. 

Law enforcement agencies also use their discretion and can reject someone from a U-visa is they believe a testimony was false, says Seattle immigration attorney Jeff Goldman. In Pierce County Sheriff's Department has developed a reputation among immigration lawyers for routinely declining to offer them, according to The News Tribune

"I haven’t seen anything that shows me that there’s a correlation between offering a visa and someone willing to perjure themselves in a court of law," González said. 

Ultimately the state's Supreme Court—which has developed a reputation for being one of the more liberal supreme courts in the country, and unusually has a majority of women—became the first known to have made immigration status "generally inadmissible" for criminal cases.

Could that rule be adopted by other courts, and extend beyond Washington state? Murphy says she thinks it's a possibility in other more liberal states, like California, Oregon or New York. 

"The issue really may be distilled into the question of whether protection of immigrants is worth the procedural hurdles for proponents of the evidence," Murphy wrote to the court. "I believe it is."

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