Documents show Oregon judges' struggle with ICE courthouse arrests
U.S. Immigration and Customs Enforcement agents made arrests in or near 10 of Oregon's 27 state circuit courts, according to state records obtained by the Oregon Capital Bureau.
The records, released under a public records request, shed light on the scope of ICE's increased activity in Oregon courthouses, which has become a source of contention between state and federal officials. After President Donald Trump took office in 2017, ICE significantly increased its presence in state courthouses, arresting individuals suspected to be in the country illegally.
Civil rights advocates and members of the legal community have complained that the arrests have had a chilling effect on immigrant communities' willingness to participate in legal proceedings. In November, Martha Walters, Oregon Supreme Court chief justice, joined a handful of other states in enacting a rule restricting ICE's ability to make courthouse arrests.
The emails shed light on the scope of ICE arrests in Oregon courthouses — or at least how aware state judges have been. Walters emailed the state's presiding circuit court judges last March asking if they were aware of ICE arrests in their courthouses. She also asked about the frequency of arrests, as well as where in the courthouse they occurred and if ICE agents notified court security staff.
Months later, 10 judges responded that ICE had made arrests in or near their courts. Most of the reported arrests occurred in Oregon's more populated areas, including Multnomah, Marion and Washington counties. Judges overseeing courts serving large swaths of rural Oregon reported no arrests.
The Oregon Judicial Department didn't respond to written questions about the matter. Federal officials have issued confrontational statements in response to Oregon enacting the rule. But earlier correspondence between federal and state officials was diplomatic and even deferential.
Some judges wrote to Walters that they consulted with court staff, the sheriff's office or defense attorneys about ICE arrests. Most judges gave short responses or didn't list the number of arrests or offer a time frame. Others gave more detailed answers on ICE's activities, describing how agents wore plain clothes and don't coordinate with security staff.
In April, Multnomah County Circuit Judge Stephen Bushong and court staff reported 16 incidents in or near the Portland courthouse involving ICE, including an instance when ICE arrested a defendant outside a state court hearing. Marion County Circuit Judge Tracy Prall responded that at the criminal court's annex ICE agents had been observed in the gallery of courtrooms but they made one arrest in the parking lot and another in the county's juvenile facility.
Prall also wrote that ICE agents identified themselves as "DHS" employees to gain access to juveniles in detention. As a result, staff believed that ICE agents were with the state Department of Human Services rather than the federal Department of Homeland Security, she wrote.
Washington County Circuit Judge Charlie Bailey said he was aware of two ICE arrests and that there was likely more. He told of one instance where agents struggled to arrest a man. "The ICE incident was very disruptive to court proceedings and placed members of the public, staff, and (a judge) in an unsafe situation," he wrote.
Circuit court judges for Clatsop and Clackamas both responded that there had been multiple arrests but didn't offer specific numbers. Lane County reported four defendants arrested by ICE, Tillamook County listed three. Yamhill County each reported one federal immigration arrest. In Wasco County, a British citizen was arrested.
Nadia Dahab, an attorney with the Innovation Law Lab who approached Walters about imposing a prohibition, said that the records likely don't tell the whole story. In 2018, the ACLU of Oregon obtained ICE records through a Freedom of Information Act request that showed that the agency had made "intrusions" in 11 circuit court districts. She recalled one incident where a lawyer's client suddenly disappeared from court and later called from an immigration detention center. The client had been arrested by ICE.
"It would not surprise me if courthouse arrests were executed but the presiding judge didn't know about them," she said.
Back and forth
In April 2017, Thomas Balmer, then Supreme Court chief justice, wrote then-U.S. Attorney General Jeff Session and then-Secretary of Homeland Security John Kelly asking them to stop federal law enforcement agencies, including ICE, from making arrests in or near Oregon courthouses.
"ICE's increasingly visible practice of arresting or detaining individuals in or near courthouses for possible violations of immigration laws is developing into a strong deterrent to access to the courts for many Oregon residents," he wrote.
Balmer said that he recognized the legal authority of ICE and other federal law enforcement agencies and that the Oregon Judicial Department would not hinder or help them. He asked that at the agencies add courthouses to Homeland Security's list of "sensitive locations" such as churches, hospitals and schools where law enforcement is barred from intrusions.
State records show no response from the cabinet officials. Walters reiterated Balmer's concerns in an email last June to Bryan Wilcox, ICE acting field office director. She said that the courthouse arrests had an "adverse effect on the administration of justice."
She wrote that ICE agents usually wear plain clothes, don't always identify themselves and created confusion by refusing to produce warrants or other documentation.
Walters cited one ICE arrest where the commotion outside a courtroom where criminal proceedings were underway was so loud that the trial judge had to order security to investigate, leaving the courtroom unsecured. Walters also reported that one court employee observed ICE agents stopping numerous people as they left a courtroom and another mistaking one individual for a suspect.
In July, Wilcox replied to Walters that courthouses "have historically been an option of last resort" for ICE. He said the agency has relied on local law enforcement to transfer "criminal aliens" from local custody to ICE. But he referenced Oregon laws that limit local law enforcements' cooperation with ICE.
"As a result, ICE is compelled to carry out its legal mandate to locate and arrest these criminal aliens wherever they can be found," he wrote.
The next month, Walters hinted that she might act after a state attorney sent materials from a national judicial conference about ICE conduct, sending it to Oregon U.S. Attorney Bill Williams. The email cited a directive in New York that prohibited ICE arrests in state courthouses.
In October, Walters and Washington Supreme Court Chief Justice Mary Fairhurst wrote to Williams, as well as U.S. attorneys for Washington, saying they had not received an explanation for why courthouse arrests outweighed "our critical interest in the administration of justice at our courthouses."
Noting that they were both considering rules aimed at restricting ICE courthouse arrests, they asked for more data on arrests and the danger posed by those arrested.
Will arrests continue?
While awaiting a response from federal officials, Walters in November imposed the new Oregon rule that required law enforcement agencies seeking arrests in a courthouse to have a warrant issued by a judge. ICE relies on administrative warrants, which are not issued by a judge.
She soon heard from U.S. Attorney General William Barr and Chad Wolf, acting secretary of the U.S. Department of Homeland Security, calling the new rule "misguided."
Barr and Wolf wrote that Oregon's rule would place "our communities at unacceptable risk" and that federal agents weren't subject to it.
To date, though, there have been no more ICE arrests reported at courthouses, according to Dahab. She said, however, that in December, a man who was riding in a car leaving the Marion County Circuit Court parking lot was pulled over by ICE. He was arrested, she said.
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