A judge ruled the regional jail’s contract to house immigration detainees does not violate state law, but its practice of notifying federal officials of the release dates of foreign-born prisoners does.

The ruling from Wasco County Circuit Court Judge John Wolf was handed down Friday, Feb. 8 and provided wins for both the plaintiffs—four Wasco County residents—and the jail.

A key win for the Northern Oregon Regional Corrections Facility (NORCOR) was Wolf’s finding that the jail was not “apprehending” people whose only violation is being in the U.S. in violation of federal immigration law. Therefore, its contract to house U.S. Immigration and Customs Enforcement (ICE) was legal.

Oregon’s 1987 “sanctuary law” bans the use of state or local law enforcement resources for the purpose of “detecting or apprehending” people who are in the country illegally.

The plaintiffs argued that the jail was illegally “apprehending” ICE detainees by holding them in jail. Wolf rejected that, writing in his 17-page order, “The action of ‘apprehending’ is not commonly understood to mean holding someone in jail or prison.”

Derek Ashton, an attorney with the Portland law firm Sussman Shank, which represented the jail, said via email Friday, “We are very pleased with the court’s decision. On the central and primary issue in this case, the court has ruled that NORCOR’s contract with the federal government does not violate state law. The contract at issue is critical to NORCOR’s budget and operations and eases a tax burden on the people of Wasco, Hood River, Sherman, and Gilliam Counties. Today’s decision ensures that critical funding source will remain in place. As a result, NORCOR’s trained professionals will continue to deliver on their important mission to provide safe, secure housing and reformative programs for persons in their care.” 

Erin Pettigrew of Innovation Law Lab, one of the attorneys representing the plaintiffs, said in a press release, “We are pleased with the court’s decision that NORCOR is violating Oregon law in some respects, but disappointed by the court’s decision with respect to the ICE contract. As Judge Wolf observed at the hearing, it is likely that some or all of his rulings will be appealed, as they involve issues of broad importance to Oregonians.”

The judge wrote that the jail’s various methods of notifications to ICE when a foreign-born person was booked into jail were allowable under the sanctuary law, which permits verifying immigration status of inmates.

But its notifications to ICE when those inmates were about to be released were not permissible, he ruled, and violated the sanctuary law.

The jail historically notified ICE when inmates were about to be bailed out or their case was resolved. That policy was changed in April 2018 to only notify ICE of the date of release of inmates that have been sentenced and have a release date.

If ICE agents were at the jail when the person was released, they could have them re-arrested.

But at that point, their only violation is of federal immigration law, Wolf wrote, and that is not a permissible use of state or local resources.

The jail argued that it doesn’t investigate to “detect” whether persons are in the U.S. illegally, so its practice of notifying ICE about inmates’ pending releases does not qualify as “detecting” under the state law.

“That logic is circular and ignores the plain language of the statute,” Wolf wrote. The statute “prohibits use of agency resources for the purpose of detecting or apprehending people in the U.S. in violation of federal law.

“The record in this case establishes no purpose for the release notifications except for the purpose of detecting and apprehending persons in the United States in violation of federal immigration laws,” he wrote.

He said the release notifications do not fall within any exemptions listed in the law. They are not to verify immigration status, since that was already done at booking, and they are not a request for criminal investigation information.

The regional jail argued that since it no longer does “paper transfers” in which an inmate went from local custody to that of ICE without ever leaving jail, any ruling on their legality was moot.

Wolf disagreed, saying the former jail administrator, Bryan Brandenburg, stated the rule change was “the thing to do,” and he was free to “dictate policy.”

Wolf said because the jail has given no indication it would not reinstate the policy, and because at least one person was subject to the “paper transfer” after the policy banning it went into effect, the matter was not moot and could be ruled on.

He found the “paper transfers” did violate the law.

Under the “paper transfer” policy, the jail would hold an inmate for ICE upon receipt of an I-203 form, which, Wolf wrote, the jail maintains is “an effective assertion of custody over an inmate” so the jail is authorized to continue custody.

Wolf wrote the I-203 “does not constitute an arrest warrant, it does not establish probable cause, and is not signed by a judge or magistrate.” He said the language itself on the form shows it is merely a request. It says “please detain…”

He said that while the I-203 is titled an “order to detain,” it is actually used for billing and accounting purposes.

“An I-203 does not authorize or mandate continued custody,” Wolf wrote.

When an inmate was no longer subject to the charges they were jailed on, the jail “does not have authority to maintain custody and must release the inmate,” he wrote.

He said by keeping the person in jail, the regional jail was violating state law by engaging in a subsequent seizure of the inmate for purposes of apprehending them for violating federal immigration law.

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