The Washington State Supreme Court recently ordered the creation of a new rule of evidence to become effective on September 1, 2018. Generally, in both civil and criminal cases “evidence of a party’s or a witness’s immigration status shall not be admissible.” In civil and criminal cases there is an exception when “immigration status is an essential fact.” In criminal cases, evidence of immigration status may also be introduced to prove “bias or prejudice of a party or witness.” One challenge in applying this rule may be that “immigration status” is not really a “fact” but rather a “conclusion of law.” Moreover, it’s a conclusion of law that, until now, was drawn exclusively by the federal government.
The Washington State Supreme Court did not define “immigration status” for purposes of its rule. Despite using the term “immigration status” multiple times, the Immigration and Nationality Act does not define it either. Title 8 of the Code of Federal Regulations defines “lawful immigration status” (for the sole purpose of determining eligibility to adjust to permanent resident status) as limited to the following (8 CFR § 245.1(d)(1)):
- lawful permanent resident,
- non-immigrant status as defined in INA § 101(a)(15),
- refugee status under INA § 207,
- asylee status under INA § 208,
- unexpired parole status,
- nurses who had been in H-1 status for at least 3 years prior to September 1, 1989 and filed an application to adjust status on or before October 17, 1991 (and met certain other requirements) (see Pub. Law 101-238).
A USCIS policy memo from 2009 lists similar types of lawful non-immigrant status. As the examples in this memo illustrate, a person’s immigration status is a conclusion drawn by applying the law to the facts in each case:
Example 1: An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. The alien remains in the United States after the From I-94 expires. The alien’s status becomes unlawful, and she begins to accrue unlawful presence, on January 2, 2009. On May 10, 2009, the alien properly files an application for adjustment of status. The filing of the adjustment application stops the accrual of unlawful presence. But it does not “restore” the alien to a substantively lawful immigration status. She is still amenable to removal as a deportable alien under section 237(a)(1)(C) of the Act because she has remained after the expiration of her nonimmigrant admission.
Example 2: An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. On October 5, 2008, he properly files an application for adjustment of status. He does not, however, file any application to extend his nonimmigrant stay, which expires on January 1, 2009. The adjustment of status application is still pending on January 2, 2009. On January 2, 2009, he becomes subject to removal as a deportable alien under section 237(a)(1)(C) of the Act because he has remained after the expiration of his nonimmigrant admission. For purposes of future inadmissibility, however, the pending adjustment application protects him from the accrual of unlawful presence.
Example 3: An alien is admitted for “duration of status” as an F-1 nonimmigrant student. One year later, the alien drops out of school, and remains in the United States for one year after dropping out. The alien’s status became unlawful when she dropped out of school. Neither USCIS nor an IJ ever makes a finding that the alien was out of status; therefore, she never accrues any unlawful presence for purposes of section 212(a)(9)(B) of the Act. … The alien eventually leaves the United States and returns lawfully as a nonimmigrant. While in nonimmigrant status, a Form I-140 is approved and the alien applies for adjustment of status. Because the alien failed to maintain a lawful status for more than 180 days during her prior sojourn, she is ineligible for adjustment under section 245(c)(2) of the Act, and section 245(k) of the Act does not relieve her of this ineligibility. Under section 245(k) of the Act, the alien is still eligible for adjustment, since the prior failure to maintain status does not apply to make the alien ineligible under section 245(c) of the Act. Also, the alien did not accrue unlawful presence despite the prior unlawful status, and so the alien is not inadmissible under section 212(a)(9)(B) of the Act.
Example 4: The alien is admitted as a lawful nonimmigrant, and, while still in status, applies for adjustment of status on the basis of an approved I-140. While the Form I-485 is pending, the aliens’ EAD expires, and the alien fails to apply for a new EAD. Nevertheless, the alien continues to work after the EAD expires. The period of unauthorized employment exceeds 180 days. The alien would not be inadmissible under section 212(a)(9)(B) of the Act, since the pendency of the I-485 stopped the accrual of unlawful presence. Also, there has been no “departure” to trigger section 212(a)(9)(B) of the Act. Section 245(k) of the Act does not relieve the alien of ineligibility under section 245(c)(2) of the Act since the alien engaged in unauthorized employment for more than 180 days.
Since immigration status can only be determined by applying law to facts, it is a legal conclusion. As “evidence” concerns the existence of facts, rather than the validity of a conclusion, Washington’s new evidence rule may cause its courts significant challenges in determining whether something is “evidence of” immigration status or “evidence of” something else.
Challenges in applying the rule
Example: Possession of an I-94 card
In Example 1 above, the I-94 card is evidence of the fact that the alien entered the geographic territory of the United States on a certain date after inspection at a port of entry. Applying the law to this fact leads to the conclusion that this alien was “admitted” to the United States in a certain non-immigrant status (see INA 101(a)(13)(A)). The I-94 card is also evidence of another fact: the date that this alien’s lawful non-immigrant status in the United States will expire (unless she departs or takes affirmative steps to extend her status). When two more facts arise – the date of expiry of the I-94 card, and the presence of the alien in the United States on that date – the law can be applied to determine that the alien is in unlawful immigration status.
But not everyone is issued an I-94 card when they cross the border. Citizens and permanent residents do not receive this document, nor do people who enter without inspection. Even lawful non-immigrants are occasionally admitted to the United States without receiving an I-94 card. Testimony that a person did not receive an I-94 card when he or she crossed the border could therefore be evidence of (a) U.S. citizenship, (b) lawful permanent residence, or (c) sneaking across the border. If the evidence supports the existence of two or more possible facts, from which opposite conclusions about immigration status can be drawn, does that make it “evidence of… immigration status?”
Example: Completion of Form I-9 and supporting documentation
Every US employer must ensure that Form I-9 is completed for each of its employees. The process of completing form I-9 requires the employer to inspect supporting documentation provided by each employee. Supporting documentation may include a work visa or employment authorization document, or it may simply include a driver’s license and unrestricted social security card. This documentary evidence, and the complete I-9 tends to prove at least two facts: (1) a person’s identity, and (2) that the government has concluded that the same person is authorized to work in the United States.
A complete Form I-9 is not necessarily “evidence of immigration status” because the supporting documentation may only establish identity and work authorization. On the other hand, the supporting documentation may include a green card, which would support the conclusion that its holder was in the US in permanent resident status. Complicating matters, an employment authorization document may be issued to the spouse of a US citizen who has a pending application to adjust status even if this person is not in lawful non-immigrant status (see Example 1, above, and 8 CFR § 274a.12(c)(9)). Is this person’s Form I-9 and supporting documents evidence of immigration status, or lack thereof?
Washington State Courts will soon be required to make legal conclusions about a person’s immigration status. The challenges discussed here are two very simple examples that potentially import the complexity of immigration law into Washington State Court cases. Routine records required by federal law, that may be used to establish simple facts such as a person’s whereabouts on a certain day, may now be the subject of evidentiary hearings. Resolving the issues presented in these hearings will likely require thorough briefing on immigration law even in the simplest cases. In more complex cases, the immigration issues could become overwhelming.