California Forum

Now immigrants are being harassed on the witness stand in California courtrooms

In this Feb. 7, 2017, photo released by U.S. Immigration and Customs Enforcement, foreign nationals are arrested during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles. Studies show immigrants, fearing deportation, are increasingly being targeted in courthouses and are afraid to testify in court. (Charles Reed/U.S. Immigration and Customs Enforcement via AP)
In this Feb. 7, 2017, photo released by U.S. Immigration and Customs Enforcement, foreign nationals are arrested during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles. Studies show immigrants, fearing deportation, are increasingly being targeted in courthouses and are afraid to testify in court. (Charles Reed/U.S. Immigration and Customs Enforcement via AP) AP

Public safety and the fair administration of justice require that everyone feels safe reporting crimes and testifying in court. Courts need to be safe zones, but with rhetoric coming out of Washington, D.C. that demonizes immigrants and threatens mass deportations, entering a courtroom is more daunting than ever. Public safety is suffering as a result.

This isn’t just theoretical. Last year a San Francisco woman witnessed her daughter fall victim to domestic violence. She reported the assault to the police, and the aggressor was arrested and prosecuted. The mother took the stand to testify against the man that had struck her daughter.

In 2017, the number of arrests or attempted arrests by ICE agents at all courthouses in New York increased by 900 percent. In California, the state’s top judge criticized federal immigration agents for using courthouses as ‘bait,’ and for ‘stalking’ immigrants who ‘pose no risk to public safety.’

In open court, the victim’s mother was questioned about her immigration status and whether she testified against the defendant to secure a special type of visa reserved for victims and witnesses who assist law enforcement. She testified that obtaining a visa was not the reason she had come forward, and a judge ruled that evidence related to her immigration status was irrelevant and could not be considered by the jury. But it was too late, the damage had been done.

The jury was unable to reach a verdict, and when prosecutors attempted to retry the case the mother – at the urging of her daughter – declined to testify a second time. She later said that the decision was partly due to the fear that her immigration status had been raised in a public courtroom.

As an undocumented immigrant, her fear was founded in fact.

The Immigrant Defense Project reported that in 2017, the number of arrests or attempted arrests by ICE agents at all courthouses in New York increased by 900 percent. In California, the state’s top judge criticized federal immigration agents for using courthouses as “bait,” and for “stalking” immigrants who “pose no risk to public safety.”

This heightening of enforcement priorities presents a clear threat to any undocumented immigrant who steps into a courthouse to hold a dangerous individual accountable.

Exploiting immigration status in an era in which ICE agents are in our courthouses boils down to an intimidation tactic. And in the above-described domestic violence case, like many others, the tactic works. Without a witness willing to testify, prosecutors were forced to dismiss the case, and a domestic abuser avoided consequences and returned to the community.

A 2017 report by the Pew Research Center found that 67 percent of Hispanic immigrants worry about deportation. If an undocumented immigrant believes that appearing in court may result in their immigration status becoming part of the public record, or that an ICE agent may be sitting in the courtroom and might arrest them before they even step out onto the street, they won’t show up.

Before the 2016 election, a study found that 70 percent of undocumented immigrants and 44 percent of all Latinos were less likely to contact law enforcement authorities if they were a victim of a crime for fear that police would ask them or people they know about their immigration status. After the election, it got even worse: During the first six months of Donald Trump’s tenure as president, as he filled the airwaves with anti-immigrant rhetoric, reporting of domestic violence among San Francisco’s Latino population dropped 18 percent compared to the same time period in 2016.

These stories, these statistics, and the era of immigration agents stalking undocumented immigrants in our courthouses are terrifying and make our communities less safe. That is why we partnered to propose Senate Bill 785, which prevents the disclosure of people’s immigration status in court when that status is irrelevant to the case.

Someone’s status should not be exploited at the expense of public safety, and we do not want witnesses and victims to be fearful that coming forward to report crimes or to testify in court will result in the reckless exposure of their immigration status.

Under SB 785, attorneys are prohibited from asking a witness about his or her immigration status unless the attorney first seeks a ruling from the judges (outside of a public courtroom) that the witness’s immigration status is relevant to the case. If the judge rules that immigration status is relevant and admissible, it can then be raised in open court.

But if a judge determines that immigration status has no bearing on the case – which is frequently the case – then it cannot be raised in open court, and it cannot be used to intimidate someone from coming forward and participating in our system of justice.

SB 785 does not dictate whether or not immigration status is admissible. Rather, it ensures that immigration status will be raised in open court only if a judge first decides that it is admissible.

SB 785 has already passed the California State Senate with bipartisan support. It is currently moving through the State Assembly. To protect public safety and the fair administration of justice, the Legislature needs to pass this important bill. Our courthouses should be places where we deliver justice to the people, not deliver people to federal immigration authorities.

California Sen. Scott Wiener, a Democrat, represents San Francisco and Northern San Mateo County. George Gascón is the district attorney of San Francisco. Reach them at senator.wiener@senate.ca.gov and george.gascon@sfgov.org.

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