Posts Tagged ‘Washington State’

Washington State Department of Licesning On Use of Facial Recognition Technology

Tuesday, July 9th, 2019 by W. Scott Railton

The Washington Post and New York Times recently ran stories concerning the use of facial technology to identify persons via the state driver’s license databases.  Washington State’s Department of Licensing has issued a press release, basically suggesting this is, dare I say, fake news. Here is what the Department of Licensing says:

DOL statement regarding facial recognition technology
July 8, 2019

July 8, 2019 For Immediate Release.

News Reports – ICE and the FBI using facial recognition technology to scan state driver’s license databases.

Statement from Department of Licensing Director Teresa Berntsen:

“National news reports about federal law enforcement and immigration officials’ use of state facial recognition databases has led to a high level of misunderstanding and confusion about how our state Department of Licensing protects this data. Our DOL has implemented strict standards to ensure data is not released to any law enforcement entity for immigration purposes or without a judicial court order or subpoena. There is no external access to the Facial Recognition System. System access is limited to very few specially trained DOL staff. We take very seriously our responsibility to protect the data and information of all Washingtonians.”


The Washington Post reported ICE and the FBI using facial recognition technology to scan state driver’s license databases, including photos of legal residents and citizens. The Department of Licensing does not provide access to our Facial Recognition System to local, state, or federal law enforcement entities. They must provide the agency with a court order signed by a judge.

The New York Times states “agents authorized administrative subpoenas of the Department of Licensing to conduct a facial recognition scan of all photos of license applicants, though it was unclear whether the state carried out the searches.” The agency received 53 requests through court order or subpoena since 2013. Thirteen of those were federal requests. None have been received from 2017 to present. The remaining 40 were from local and state law enforcement entities.

Federal requests include:

One – U.S. Department of Justice
Two – Federal Bureau of Investigation
Four – Department of Homeland Security/Immigrations and Customs Enforcement
Six – U.S. Drug Enforcement Administration

If a match was found through any request during this time, DOL would provide limited identity information.

DOL’s Use of Facial Recognition Technology

KUOW ran the headline “ICE uses Washington driver’s licenses to hunt immigrants for deportation, researchers say.” This is incorrect. No entity has access to DOL’s facial recognition system. They would provide a photo and DOL would conduct the research.
Law enforcement entities have no access to “mine” DOL’s state driver’s license databases using facial recognition technology.
As of January 2018, all requests must be court ordered.

DOL’s Facial Recognition Process

After receiving a court-ordered subpoena, DOL performs a search by comparing the photo provided by a law enforcement entity with DOL’s database. If a match occurs between the photo provided by the entity with a photo in DOL’s database, DOL provides the individual’s first, middle, and last name, date of birth, and ID or driver license number.
The Department of Licensing does the research. There is no direct external access to the facial recognition system. System access is limited to very few specially trained DOL staff.

Immigration and Citizenship Status

The Department of Licensing does not collect information regarding a person’s immigration or citizenship status.
The Department of Licensing does not collect place of birth.
The Department of Licensing does not provide Social Security numbers.

Governor’s Executive Orders

The Department of Licensing is committed to following the Governor’s Executive Order 17-01 Reaffirming Washington’s commitment to Tolerance, Diversity and inclusiveness.
We fully comply with Executive Order 16-01, Privacy Protection and Transparency in State Government. We only collect information that is necessary to perform our agency duties to establish identification and driving privileges.

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CBP Addresses Canada’s Legalization Of Marijuana And Crossing The U.S. Border

Wednesday, October 10th, 2018 by W. Scott Railton

U.S. Customs and Border Protection published a statement regarding Canada’s legalization of marijuana and crossing the border, which is available at its website.

Most notable:  CBP affirmatively says that persons working in the legalized industry in Canada, without attachment to the U.S. industry, will still be admissible.  See the paragraph I’ve highlighted in bold italics below. Prior public statements by CBP leadership strongly suggested this would not be the case, which seemed counter to the plain language of the Immigration and Nationality Act. I personally questioned such a policy in a story published last month by the Dow Jones’ publication, Market Watch.

I think CBP has it right now, as far as the Immigration and Nationality Act goes. There are many finer legal points though that come into play, when making actual inadmissibility decisions.

Perhaps most importantly, there still is a real need for Congress to take a longer look at the cannabis issue overall, since over half the states have a form of legalization. Until they do, the border will continue to be a hard line on cannabis, drawn between states and provinces which have legalized the substance.

Here is the CBP’s Statement in full, updated on 10/9/18:

CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border
Release Date:
September 21, 2018

UPDATED: 10/09/2018

U.S. Customs and Border Protection enforces the laws of the United States and U.S. laws will not change following Canada’s legalization of marijuana. Requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.

CBP officers are thoroughly trained on admissibility factors and the Immigration and Nationality Act, which broadly governs the admissibility of travelers into the United States. Determinations about admissibility and whether any regulatory or criminal enforcement is appropriate are made by a CBP officer based on the facts and circumstances known to the officer at the time.

Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States.

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.

CBP officers are the nation’s first line of defense in preventing the illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP officers will continue to enforce that law.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
Last modified:
October 9, 2018

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J-1 Conrad Waiver Slots for Physicians Opens On October 1st

Wednesday, September 19th, 2018 by W. Scott Railton

On October 1st, Health Departments around the country will begin accepting J-1 waiver applications under the Conrad program. Each state is allotted 30 spots, with the majority going to primary care physicians, who agree to work for three years in a health professional shortage area. In turn, their two year foreign residency requirement is waived. We routinely prepare these applications.

Rules vary state to state, although the federal government has minimum requirements. Washington State, where we are located, historically takes between six and twelve months to fill all of its spots. However, last year Oregon, which also used to be slow to fill, filled their spots in record time. Some states receive more than 30 applications on the first day the window opens.

Here are a few of the key rules for Washington State:

  • Up to ten sponsorships are available for Specialists between October 1st to March 31st. Last year, more than 10 applications were submitted during this period, but spots were still left available after March 31st. This has historically been true too.
  • Washington State also allows 10 non-designated FLEX waivers per year, with these slots opening on January 15th.
  • Washington State limits employers to only three waivers, prior to June 1st of the fiscal year.
  • Applicants, including integrated health care systems in a single HPSA, are limited to a.) two sponsorships per practice location; b.) one hospitalist sponsorship per hospital; c.) no more than three sponsorships total across all practice locations in the HPSA between October 1st and May 31st; d.) and no more than three FLEX spots by a an applicant for a single county.
  • Sponsors must show at least 15% of total patient visits are for Medicaid or other low income patients. This is up from the former 10% figure.
  • The process also requires that sponsors show at least six months of qualifying recruitment in the past 12 months in Washington State.

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Washington State Passes State Version of DREAM Act

Wednesday, February 19th, 2014 by W. Scott Railton

The Washington State Legislature passed its State version of a DREAM Act this week, which is intended to create opportunity for certain undocumented students through the increased availability of state-based need grants. According to the Seattle P-I, this was the first major bipartisan bill to pass the legislature this year. The bill will be signed into law by Governor Inslee, who stated via Twitter that he is “Proud to give fair access and financial support to aspiring Washington students.” The passage of the bill has been more than 6 years in the making.

Senate Bill 6523 expands the availability of state need grants to:

• Any person who has completed the full senior year of high school and obtained a high school diploma, either at a Washington State public high school or an approved private high school, or a person who has received the equivalent of a diploma;

• Who has lived in Washington State for at least three years immediately before receiving the diploma or its equivalent;

• Who has continuously lived in Washington State after receiving the diploma or its equivalent and until such time as the individual is admitted to an eligible institution of higher education and has been granted deferred action for childhood arrival status (DACA) pursuant to federal rules.

The act itself says that is it to be known and cited as the Real Hope Act, and includes an appropriation of $5 million.

The concept behind the law is that hardworking students should be provided with opportunity, which is good for all. More than 15 states have now passed variations of their own DREAM act. Washington State will be the fourth state, along with New Mexico, California and Texas, to allow financial aid to undocumented students. Washington State includes the grant of DACA status as a prerequisite to receiving aid, and so the underlying requirements and costs of the DACA program will qualify eligibility.

Besides creating opportunity for education, this law also shows the growing reach of President Obama’s DACA program, which has been implemented without the vote of Congress.  The President said in his recent State of the Union address that he would act where Congress does not, to meet the immediate needs of the U.S. people.  Washington’s Dream Act is yet another case where a state government took action to deal with the on-the-ground realities of Congress’ inaction on immigration reform.

National politics aside, this law feels like a win for Washington’s young people and the economy, and is great to see the State Legislature support this bill in bipartisan fashion..

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Immigration and the Legalization of Marijuana in Washington State and Colorado

Tuesday, December 17th, 2013 by W. Scott Railton

Washington State voters passed Initiative 502 in 2012, legalizing the use of marijuana products for adults 21 and over. Colorado voters approved Amendment 64 to its Constitution in 2012. These interesting developments have received widespread media attention. In turn, we’ve been getting a lot of questions on how these laws will impact U.S. immigration and the border, since marijuana possession and other related offenses are still illegal under federal law. In fact, I was recently quoted in a Canadian Press article on this subject, and then interviewed on Vancouver’s CKNW’s morning show (Listen to the full interview below).

Beware. There are plenty of reasons to believe that federal law will continue to trump state law when it comes to immigration and marijuana, at least in the short term. Marijuana continues to be listed as a controlled substance under the U.S.’s Controlled Substances Act, and the illegal use of controlled substances continues to be prohibited under the U.S. Immigration and Nationality Act. Initial indications from U.S. Customs and Border Protection are that the officers at the border will continue to enforce the federal laws over Washington and Colorado’s experiments in legalization.

Immigration and marijuana don’t mix well. U.S. immigration law is particularly strict in regards to narcotics, and there is a long history of federal cases related to marijuana use. Probably the most famous case was in 1973 when John Lennon was ordered to be deported for a past marijuana conviction in England. He won that case, but only after a long court battle. The cause of deportation order was supposedly a pretext for Lennon’s removal, as his activist efforts were unpopular in certain quarters. In 2006, the battle was memorialized in the movie The U.S. v. John Lennon.

Under current law, a person can be found inadmissible to the United States for (1) a conviction related to marijuana, (2) for simply admitting to committing the essential elements of any marijuana related offense; (3) for reason to believe a person is trafficker of controlled substances; (4) or for being a drug abuser.  This is a non-exhaustive list, but it is particularly noteworthy that a conviction isn’t required to bar admission. Once a person is deemed inadmissible, they’ll likely need to seek a waiver, which is expensive and time-consuming to obtain.

Conversations with border officers may go down any number of ways, and of course will be steered by the officers. Some may take an interest in the issue, and some may not. There is always a human element involved when seeking admission. However, lying to a border officer can have serious consequences, as misrepresentation is a basis for inadmissibility and immediate expedited removal.

Now, if an officer at the border knows that a person intends to engage in a violation of the Controlled Substances Act, they can find that person inadmissible at that time, for seeking to enter for an illegitimate purpose. Such a finding would not necessarily necessitate future waivers, though it could, if, for example, the agency decided to require a person to prove they are not a drug abuser. Hopefully U.S. Customs and Border Protection adopts a transparent and uniform approach, as these state laws are sure to confuse people.

Other issues are bound to come up too. For example, a violation of the Controlled Substances Act could impact all sorts of future immigration-related applications, such as trusted traveler applications (e.g. NEXUS), permanent residence applications, and naturalization applications. Foreign investors risk running afoul federal controlled substance trafficking laws if they get involved in financing marijuana businesses. This in turn could have serious immigration implications for both the investors and their families.

Time will tell how this all plays out. The U.S. Attorney General has issued at least three separate memos to its attorneys on how to address state legalization of marijuana cases in the medical and recreational contexts. In brief, these memos encourage prosecutorial discretion in certain circumstances, but by no means cede federal authority over marijuana-related activities. The federal government has on occasion and recently closed some medical marijuana dispensaries and grow operations in Washington State and Colorado, and so it is clearly not turning a blind eye.

For the time being, better safe than sorry seems to be the most advisable policy for noncitizens in relation to these new state legalization laws.

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H-1B Annual Quota Fills in Week 1

Friday, April 5th, 2013 by W. Scott Railton

Unsurprisingly, the H-1 annual cap filled today. H-1Bs are a nonimmigrant category visa type, reserved for specialty occupation workers with at least a Bachelor’s Degree or the equivalent, coming to work for a U.S. employer in position requiring such an educational background. In recent years, the annual quota has taken months to fill. The expectation this year was that the quota would fill fast, but nobody knew for sure how fast.  Now we do.  For those who were able to get their petitions filed by April 5th, congratulations! Now….there will be a lottery.

For those who did not meet the annual quota, there are a few considerations.  First, know that not all employers are subject to the H-1B cap.  There are cap-exempt employers, such as non-profit research organizations, institutions of higher education, and organizations affiliated with institutions of higher education.  Second, if a beneficiary was previously counted under another cap in the past six years, they are still eligible for an H-1B with a new employer.  Third, this year the possibility of immigration reform is higher than ever. Congress may end up allocating more numbers.  We’ll stay on top of these points, and in fact, I will be traveling to Washington D.C. soon to discuss this employer concern, amongst others, with legislators.

Today’s announcement from USCIS:

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

USCIS will provide more detailed information about the H-1B cap next week.

For more information about USCIS and its programs, please visit or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

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Padilla, Sandoval, and Post-Conviction Relief

Thursday, June 23rd, 2011 by W. Scott Railton

Many courts are now considering post-conviction relief for noncitizens with convictions where advice on pleas may have been ineffective. To put more focus on this subject, I recently participated on a Washington State Bar Association panel in Seattle, entitled “Post-Conviction Relief for Noncitizens After Padilla V. Kentucky and State v. Sandoval.” My co-presenters were highly esteemed attorneys Ann Benson and Neil Fox. The Continuing Legal Education seminar should soon be available to attorneys via the State Bar’s on-line CLE program.

We specifically discussed the particulars of Padilla, Sandoval, relevant immigration laws, and various strategies for seeking post-conviction relief based on these cases. One of the big issues now is whether these cases will be applied retroactively for post-conviction relief. The majority of decisions so far are coming out this way. If it is believed that post-conviction relief could be necessary to avoid adverse immigration consequences, know that time may be of the essence to seek help. Many forms of relief are time barred, and immigration removal actions move on their own calendar, without regard to prospective relief in state courts.

Padilla v. Kentucky is a landmark U.S. Supreme Court decision from last year, which held that defense counsel has an affirmative duty to competently address immigration issues presented by a client’s criminal charges. As per the Court’s decision, “Accurate legal advice for noncitizens accused of crimes has never been more important.” The Court explicitly held that deportation is not a “collateral consequence” of the proceeding, as was held by the Kentucky Supreme Court, and has been commonly thought by attorneys.

Following Padilla, the Washington State Supreme Court issued its related and long-awaited decision in State v. Sandoval this past March. In Sandoval, a 25 year permanent resident was charged with 2nd degree rape in Grant County, and on advice of counsel plead guilty to 3rd degree rape, which would lead to certain deportation as an aggravated felon. The decision found similar obligations for defense attorneys.

Specifically, the State Supreme Court focused its decision narrowly on the advice defense counsel gave concerning deportation. The Defendant had informed counsel that they would not take the plea if it meant deportation, and was told erroneously by counsel the plea would not lead to “immediate deportation.” The Court reviewed the U.S. Supreme Court’s Strickland v. WA analysis, finding that (1) the counsel’s performance fell below objective standards of reasonableness as determined by professional standards, and (2) that the defendant was prejudiced by the representation, inasmuch as it was reasonable to believe the defendant would’ve risked trial on the 2nd degree rape charge (which had 78-102 month sentence, v. 6-12 months for 3rd degree).

The Washington Supreme Court also held that if the deportation consequence is “clear”, defense counsel is then required to correctly advise the client on such consequence. If, however, the consequence is “unclear,” counsel must advise client that deportation and other immigration consequences are possible. In practice, immigration consequences may seem unclear to most attorneys, due to the level of specialization required to analyze such matters effectively.

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