COVID-19 Update (11/2/2020): Pursuant to its guidance, ICE will continue arresting and detaining people in jails and elsewhere convicted or charged with criminal offenses. Given the heightened vulnerability of noncitizens in immigration detention to contracting COVID-19, it is imperative that defense counsel take all possible steps to reduce the risks that a noncitizen client will end up in detention. It is more important than ever to seek advice from WDA’s Immigration Project to assist in resolving criminal charges. For new best practices in representing noncitizen defendants in light of COVID-19, see our COVID-19 and Noncitizens practice advisory here.
Prohibitions on ICE Collaboration By Washington Sheriffs and Police: Under RCW 10.93.160, local sheriffs, police and jails are prohibited from most forms of collaboration with ICE and Border Patrol (CBP). These prohibitions include: no collection of immigration or citizenship status or place of birth; no jail interviews without written consent; and not providing ICE/CBP notification of release. Some but not all of the statutory prohibitions also apply to the Department of Corrections.These changes were part of the Keep Washington Working Act, effective May 21, 2019. The Act also mandated the Attorney General to publish model policies implementing these prohibitions and other new requirements by May 21, 2020. All law enforcement agencies (including jails) will be required to adopt the AG’s policies or state whey they are not and provide their alternative policies that reflect compliance with RCW 10.93.160.The goal of RCW 10.93.160’s prohibitions and requirements is to cut off the “jail to deportation pipeline” and stop local law enforcement collaboration with ICE and CBP. WDA’s Immigration Project is actively working with justice system stakeholders to get the laws implemented in counties and cities throughout Washington. If you would like to support implementation in your jurisdiction, please contact Annie Benson, WDA’s Senior Directing Attorney, at email@example.com
Prohibitions on ICE Collaboration by Courts and Prosecutors: Under the Court’s Open To All Act, discussed below, prosecutors, judges and court staff, are prohibited from inquiring into or collecting immigration and citizenship status or place of birth (except under limited circumstances) and are prohibited from sharing non-publicly availability personal information with ICE or CBP.In April 2020, the Washington Supreme Court amended RPC 4.4 to extend prohibitions on reporting third parties to federal immigration authorities to criminal proceedings. The change, led by community partners and supported by WDA & WACDL, was aimed at stopping prosecutors from reporting court date and other information to ICE and CBP.
Preventing ICE Arrests In Washington Courthouses: In March the legislature passed and the governor signed The Courts Open To All Act (effective 6/11/20). In April the Supreme Court adopted GR 38. The new law and rule take steps to prevent civil arrests of people coming and going to courthouses to participate in hearings, access services or conduct other business. ICE and CBP make civil arrests when the purpose is to deport a person. Both actions were in response to the dramatic increase in ICE and CBP courthouse arrests since early 2018 summarized here. Key provisions of the Courts Open to All Act:
Prohibits judges and prosecutors from asking, collecting immigration or citizenship status or place of birth and sharing personal and non-public information with federal immigration authorities.
Requires all federal and state (not local) law enforcement officers to provide identifying information and state purpose of their presence in, at or on court facilities (unless appearing to participate in proceedings).
Prohibits civil arrests of anyone going to, remaining at or returning from a court facility (w/o court order authorizing arrest that must be reviewed by designated judge at the courthouse prior to the arrest). This prohibition extends to within one mile of the court.