March 30, 2017

Earlier this month I learned from the news media that Whatcom County, along with many other counties in Washington, is listed on a federal web-site as having “enacted policies which limit cooperation Immigration and Customs Enforcement” (ICE), a component agency of the United States Department of Homeland Security (DHS). It is in the interest of public safety that the Sheriff’s Office cooperates with ICE to ensure an orderly transfer of criminal aliens to federal custody after the resolution of state charges. The Sheriff’s Office has a long history of doing just this. Whatcom County’s designation as “non-cooperative” does not reflect the practices we have adopted to ensure cooperation with ICE or a decision of a federal court within our 9th Federal Circuit Court of Appeals that set forth constitutional requirements and limitations.

By way of background, ICE formerly issued “detainer requests” asking the Sheriff’s Office hold persons meeting federal criminal alien criteria for up to 24 hours beyond the time they were scheduled to be released from the county jail. A federal court within our 9th Federal Circuit (Miranda-Olivares v. Clackamas County April 2014) held that the practice of detaining criminal aliens on ICE issued detainer requests beyond the time of their scheduled release from the county jail on state charges without a warrant violated the Fourth and Fourteenth Amendments to the United States Constitution. In this case, the Sheriff of Clackamas County Oregon and Clackamas County were held liable for facilitating an ICE detainer request. The federal government did not intervene in the lawsuit nor defend nor indemnify the County for damages or the cost of litigation.

Following the court decision, I consulted with the Whatcom Prosecuting Attorney’s Office. It was concluded that continuing the practice of honoring non-judicially issued detainer requests by holding persons beyond their scheduled release time would subject Whatcom County and our deputies to liability for civil rights violations. I responded to this decision and adjusted our policy to conform to the law. To the best of my knowledge, other sheriffs throughout the state have done the same.

From the perspective of cooperating with the component agencies of DHS with respect to their responsibilities for taking custody of “criminal aliens,” the Sheriff’s Office does fully cooperate. The term “criminal alien” is defined by United States Code and generally includes “any alien” who is convicted of a serious criminal offense. State law requires that I cooperate with ICE in ascertaining jail inmates’ citizenship and provide information regarding confinement and sentences. Federal agents regularly review the jail roster to identify criminal aliens committed to the county jail.

To ensure public safety and legal requirements, I consulted with DHS component agencies immediately after the 2014 court decision. The Sheriff’s Office and local agents agreed on a workable solution. I agreed to detain persons at the request of federal authorities if the federal agency presents a warrant. As inmates charged with serious offenses are usually held in jail for some time, there should generally be time for agents to obtain a warrant as required by the federal court. Federal authorities can also arrange to be within the secure area of the jail at the time of the person’s scheduled release and take the person into custody as he or she prepares to leave the facility. The Sheriff’s Office further cooperates by providing notification of release times to federal agents so an orderly transfer of custody can occur. With the number and availability of federal agents assigned to Whatcom County, this has not presented any logistical issues within our jurisdiction and all requested transfers have taken place.

The Sheriff’s Office works very closely with DHS on a daily basis on criminal matters and locally maintains an excellent working relationship with our federal partners. Federal agents and the Sheriff’s deputies often have overlapping jurisdiction on a wide range of criminal offenses that violate both state and federal law. Deputies and agents work closely and collaboratively on these matters. Federal agents are assigned to the Whatcom Gang and Drug Task Force and have been instrumental in disrupting criminal gangs, drug trafficking organizations, sophisticated criminal enterprises and arresting habitual felons that deal in crime and violence. This cooperative relationship also facilitates coordination in suspected cases of human trafficking and other forms of exploitation.

Cooperation with DHS and its component agencies should not be confused with civil or administrative aspects of immigration enforcement. Deputies lack the legal authority to enforce federal civil and administrative statutes. Deputies do not stop, contact, detain or interrogate any persons solely for the purpose of ascertaining that person’s immigration status and do not prolong any detentions longer than necessary to complete normal processes in connection with a criminal or traffic violation. This is embodied in practices and is consistent with a 2013 Washington State court decision (Ramirez-Rangel v. Kitsap County).

Last week, I requested the regional ICE “Office of Enforcement and Removal Operations” in Seattle to explain Whatcom County’s listing. After researching the matter, the acting director of the office advised me that his agents reported that the Sheriff’s Office has been fully cooperative and it appeared that the County should not have been listed as “non-cooperative.” He further explained that the decisions on county designations are made at the agency’s national headquarters in the District of Columbia on the basis of newspaper articles that followed the court decision. The acting director agreed to work to assist us in being removed from the “non-cooperating” list. However, he further indicated that many counties across the country were also voicing objections and that the issue may take some time to resolve.

I was not contacted by anyone from ICE prior to the Sheriff’s Office being included on the “non-cooperative” list. Whatcom County is not a sanctuary for criminal aliens and the Sheriff’ Office fully cooperates with ICE on the transfer of criminal aliens to the extent permitted by law. I can only conclude that the decision was made within the realm of a large bureaucracy that chose not to review the relationships, policies and practices that exist within our community to ensure public safety and cooperation or the Constitution as interpreted by a federal judge, which I took an oath to uphold.

Late on Tuesday (March 29th) I received notice from ICE that effective Sunday (April 2nd) their entire process for requesting the transfer of criminal aliens to federal custody is being revised as to scope and procedure. The new policy does not provide for the presentation of warrants but rather insists that Sheriffs accept revised detainer request forms. There was no prior discussion with Sheriffs on this process. There Prosecuting Attorney Dave McEachran is reviewing these federal changes and will provide me with advice that will help ensure adherence to the requirements of the Constitution. I will continue to work closely with ICE to effectuate public safety and the requirements of the law.

Bill Elfo, Sheriff

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