Download Advisory Opinion 13-2006 PDF
Clarification on offenders who are undocumented immigrants.
Requested by: Washington
Issued on: 01-08-2007
Issued by: Richard L. Masters, Legal Counsel
Pursuant to Commission Rule 6.101(c) the State of Washington is requesting an opinion regarding Commission Rule 3.101 as it relates to undocumented immigrants. Washington asks the following:
Considering these questions in order:
1) If an offender seeking to transfer under ICAOS is an undocumented immigrant, does this status make the offender ineligible for transfer?
First, an undocumented immigrant who meets the definition of “Offender” under Article II of the Compact and Rule 1.101 of the ICAOS Rules and seeks to transfer under the Compact and its rules is subject to the jurisdiction of the Compact. While such person’s status as an “undocumented” immigrant would not necessarily disqualify an immigrant from transferring under the Compact, the applicable rules may result in the transfer’s denial due to the immigrant’s inability to meet eligibility criteria. For example, under Rule 3.101 it must be established that the immigrant is a “resident” of the state to which transfer is sought or that the immigrant has “resident family” in the receiving state. If the immigrant has not lived in the receiving state for the required one year period or the receiving state is not the principal place of residence, or cannot establish that family members have resided in the receiving state for the required time period, obviously the offender would not be eligible for transfer under the mandatory transfer requirements of Rule 3.101.
Similarly, the immigrant’s status as “undocumented” could disqualify such a person from being eligible for transfer under Rule 3.101 if this status renders the immigrant not in “substantial compliance” with the terms of supervision in the sending state as required under Rule 3.101(c). Since the definition of “substantial compliance” under Rule 1.101 means that the offender is in sufficient compliance with the terms and conditions of supervision in the sending state to prevent revocation proceedings, if the sending state revokes an immigrant’s parole or probation as the result of being undocumented, then such a person is disqualified from transfer under Compact Rule 3.101. It may seem anomalous that an undocumented immigrant whose status as such constitutes a per se violation of federal law could ever be considered to be in “substantial compliance” with the terms of supervision. As defined in Rule 1.101 and applied in Rule 3.101 (c), “substantial compliance” requires this result if the sending state does not revoke probation or parole when an offender is an undocumented immigrant.
2) What if the offender is released to supervision under a court order to obey all laws, and the state of being undocumented may violate this condition?
The second question assumes that an undocumented immigrant, with a condition of supervision to obey all laws, is placed under supervision notwithstanding their status as an undocumented immigrant, and then asks if the status of being undocumented violates this condition. This is a decision that must be made by the court, which is responsible for the initial decision as to whether or not the offender is entitled to be released to the community under supervision. If the sentencing court determines that the immigrant’s status is that of being undocumented, and therefore presumably in violation of federal law, it is difficult to understand why such court would release the offender to supervision in the community. However, if the court is aware of this status and nevertheless releases the offender to supervision, then it is logical to proceed with determining whether the offender qualifies for transfer under the provisions of Rule 3.101.
3) If an offender who was transferred to Washington has a parole condition that requires the offender to obey all laws, does the offender’s status as an undocumented immigrant render the offender in violation of this condition? If so, is it a significant violation that could result in retaking by the sending state from Washington?
The third question raises the issue of whether the offender transferred to Washington with a parole condition requiring compliance with all laws is in violation of that condition as a result of being undocumented and, if so, whether this constitutes a “significant violation,” which could result in the sending state retaking the offender
Rule 5.101(a) specifies that retaking by the sending state is at the sole discretion of the sending state. Exceptions to this Rule are pending felony or violent crime charges or convictions, offender engages in behavior requiring retaking, or the offender absconds from supervision. See ICAOS rules, 5.101-1, 5.102, 5.103 and 5.103-1. Further, if an offender is transferred under the ‘discretionary transfer’ provisions of Rule 3.101-2, the receiving state may add a condition to that acceptance requiring the offender to be retaken upon determination that the offender is undocumented.
In summary the advisory opinion concludes:
Click terms below to reveal definitions used in this rule.
Offender – means an adult placed under, or made subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies, and who is required to request transfer of supervision under the provisions of the Interstate Compact for Adult Offender Supervision.
Substantial Compliance– means that an offender is sufficiently in compliance with the terms and conditions of his or her supervision so as not to result in initiation of revocation of supervision proceedings by the sending state.
ICAOS Advisory Opinion
7-2004 [determining “substantial compliance” when there are pending charges in a receiving state]