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Justice Compromised: Immigration Arrests at Washington State Courthouses

Grant County Courthouse, Ephrata, WA (Wikipedia, CC BY-SA 3.0)

October 16, 2019

In recent months, media reports,[1] immigrant rights organizations,[2] and federal immigration officials[3] have noted the increased use of courthouses as a site for civil immigration enforcement in Washington state. This is part of a nationwide trend: as advocates have documented in ColoradoNew MexicoNew YorkMassachusetts, and Pennsylvania, immigrants are increasingly being arrested by Immigrant and Customs Enforcement (ICE) and Customs and Border Protection (CBP) officers inside courthouses, in surrounding areas, and while driving away from courthouses. Once apprehended by ICE or CBP in these circumstances, they face immigration detention (for weeks, months, and, in some cases years) and deportation proceedings.

This practice raises concerns about access to justice: if risk of apprehension by immigration authorities makes immigrants afraid to go to court, this could impede their ability to engage in legal proceedings by serving as witnesses, plaintiffs, or defendants; it could discourage them from paying fines, seeking a protection order, or accessing other necessary court services such as obtaining a marriage license. Around the country, rights advocates,[4] justice professionals[5]—including chief justices of state Supreme Courts[6]—and bipartisan bodies[7] have asked Congress and the Department of Homeland Security (DHS) to designate courthouses as “sensitive locations,” like schools or hospitals, where the agency refrains from enforcement activities.

Thus far, the Department of Homeland Security has declined such requests. Indeed, it appears that Immigration and Customs Enforcement (ICE), at least, is doubling down: in January 2018, ICE issued its first policy directive codifying its procedures on courthouse arrests, as well as a related web FAQ. It is unclear whether Customs and Border Protection (CBP) operates with similar guidelines; both agencies are part of DHS and conduct courthouse arrests in Washington state, but only ICE has publicly addressed the practice. In other states—though notably, not in Washington—it appears that courthouse arrests are mostly conducted by ICE rather than CBP, so most of the national attention around this issue has focused on ICE alone.

In this policy memo, and in public statements, ICE recognizes that courthouse arrests are on the rise and acknowledges that they generate particular concerns. But the agency offers two claims as justifications for the practice:

  • First, it alleges that courthouse arrests have become necessary since local jurisdictions’ growing reluctance to accept ICE detainers,[8] has made arresting immigrants in jails more difficult. Because those entering courthouses are typically checked for weapons, the agency argues, apprehending immigrants in courthouse settings is safer than detaining them in other locations.[9] The memo and FAQ also emphasize that many targets of such arrests constitute a public safety threat, describing them as “criminals and fugitives” and their apprehension in areas screened for weapons as necessary steps to protect the public.
  • Expressing its intention to “avoid alarming the public,” ICE asserts in its memo that courthouse arrests are operations against “specific, targeted aliens,” and do not aim to arrest family members or friends accompanying them except “under special circumstances.” Federal agents “will make every effort to limit their time at courthouses,” the policy insists, and the arrests themselves “should, to the extent practicable, take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building’s non-public entrances and exits.”[10]

However, reports from other states suggest that there may be reasons to question the accuracy of these characterizations. Data collected by the Immigrant Defense Project in New York, for example, found that 28% of those arrested in New York had no criminal history and that of those facing criminal charges, 80% were appearing for violations and misdemeanors.[11] What’s more, media reports have highlighted courthouse arrests of crime victims and others appearing in court in an attempt to protect against violence—including apprehensions of those in court to seek protection orders against abusers.[12]

In an attempt to document what is happening in Washington State, and to explore its human rights consequences, in 2019 the University of Washington Center for Human Rights began a study of the immigration arrests at courthouses in our state. This project is currently in its early stages; the present report should be understood as a preliminary presentation of findings, to be further updated as additional data becomes available. As explained below, our research draws data from a range of sources, including public records requests at the local and federal level; conversations, where possible, with federal immigration officers; media coverage; and reports by eyewitnesses, community members, and legal advocates about arrests involving specific individuals known to them. Where possible, we corroborate data through multiple sources. We also incorporate insights from academic studies involving fear and its impact on access to justice, particularly among immigrant populations, and surveys conducted by advocacy organizations working to end domestic violence in Washington.

This report is divided into four sections. We explore the extent of courthouse arrests in our state; the specific circumstances of the arrests, where known; the human rights concerns surfaced by this practice in our communities; and ways in which local officials, including prosecutors and law enforcement, have collaborated with ICE and CBP to facilitate arrests at courthouses.

I. Extent of ICE/CBP enforcement at/near courthouses

In order to assess the impact of these arrests on human rights, it is important, first, to understand whether they are isolated or systematic practices: are they happening across the state? Are they occasional or frequent occurrences? Whom do they target, and how?

Yet answering these questions poses a significant challenge, first and foremost because the only entity that possesses comprehensive records of all such arrests—the Department of Homeland Security—refuses to share them. ICE claims that it does not track how many arrests occur at courthouses.[13] Though the agency’s policy stipulates that all such operations should be documented using a Field Operations Worksheet which specifically notes the operation as targeting a courthouse,[14] the agency has told UWCHR researchers that these documents are not compiled or tracked in any way that would permit the release of aggregate data about courthouse arrests under FOIA. Similarly, while agency records such as I-213s[15] state the location at which each individual arrest is made, to date the agency has maintained that the location of arrests are exempt from disclosure under FOIA Exemption (b)(7)(E), which allows the withholding of information compiled for law enforcement purposes that would disclose the “techniques and procedures” or “guidelines” for “law enforcement investigations or prosecutions.”[16] The UWCHR is currently engaged in litigation against DHS precisely for access to these forms of documentation.

While we continue to contest these dubious interpretations of the agency’s responsibilities under FOIA, we have launched an effort in the interim to gather as much information as possible from other sources to shed light on the extent of courthouse arrests in our state. To date, we have collected data from multiple sources: ICE and CBP records, obtained through FOIA;[17] records from county governments in Washington state, released under the Washington Public Records Act, federal court records,[18] obtained through PACER; reports shared with advocates and community organizations;[19] and media coverage.[20] Some of the reports received are more comprehensive than others. Court documents, for example, present sworn testimony about the apprehension of specific individuals in ways that permit secondary corroboration, whereas eyewitness accounts are sometimes limited to a description of an event involving unnamed individuals, and can be more difficult to verify. In this report, we note the source of all data, so that its reliability can be evaluated by readers.

To date, we have documented 51 reported arrests at courthouses since 2016, occurring in 16 counties across the state; 24 in Western WA, and 27 in Eastern WA. (For a table listing these cases, see Appendix I to this report.) This undoubtedly captures only a fraction of overall arrests. However, the dispersion of documented arrests across the state suggests that the practice is widespread, a characterization also upheld in public statements by ICE authorities in Washington.[21] At the same time, reports suggest that courthouse arrests may be concentrated in certain jurisdictions, especially Grant County, which accounts for almost a quarter of reported courthouse arrests since 2016. The next most frequent locations are Adams, King, and Clark counties.

II. Specific circumstances of arrests

As ICE’s own statements on this practice note, the concerns around courthouse arrests stem not only from the fact that they are happening, but from the specific manner in which they occur. As a result, we sought to examine who is being targeted, and how and where they are being identified and apprehended. Here, too, obtaining across-the-board data is impossible without access to DHS records, yet our research permits a glimpse into the overall phenomenon through the individual cases we have been able to document thus far.

Most eyewitness reports describe the presence of individuals in plainclothes later identified as immigration enforcement observing hearings in the courtroom and/or surveilling court attendees in waiting areas. To carry out the arrest, multiple agents, typically in plainclothes, surround the targeted person, arresting them quickly and placing them in a vehicle which is usually described as unmarked. A minority of accounts mention the use of force by arresting agents. Due to the use of plainclothes and unmarked vehicles, it is often difficult for eyewitnesses to know whether ICE or CBP is the agency performing the arrest. In multiple cases reported by lawyers and advocates, the arresting agents reportedly refused to give their names or show warrants, even when asked by the arrestee’s attorney. In some cases, agents briefly flashed agency badges.

Some eyewitness accounts describe chaotic, confusing scenes. For example, the partner of a man arrested by ICE on June 20 outside the Thurston County Superior Courthouse described troubling use of force by immigration enforcement agents in a statement provided by her lawyer to The Olympian’s Sara Gentzler: “After the hearing, (name redacted) and I were walking just outside of the courthouse back to the car when he was attacked and taken away right in front of me by men in everyday clothes…I was scared. (Name redacted) had had a concussion a few months earlier, and one of the men hit him hard in the back of the head.”

Similarly, in an account shared with UWCHR researchers by a legal advocate, a witness described seeing multiple attempted arrests on September 26, 2019 at Grant County Courthouse in Ephrata, Washington. He reported that he entered the main entrance of the courthouse at approximately 9:55 a.m, noticing a light tan Tahoe was parked on the side of the court house with a man waiting in the driver’s seat. As he approached the front main entrance, he saw a young Latinx man in handcuffs being forcefully and quickly escorted, almost dragged, to the light tan Tahoe by a man in plainclothes who put him in the back seat of the vehicle. When he emerged from the courthouse later, the same ICE officer he had seen earlier was now chasing another young Latinx man around the grounds of the courthouse, with the Tahoe speeding around the corner toward them. At least one person, the client of the legal advocate who shared this account, was arrested by immigration authorities at the courthouse on that day.

As this account suggests, while some arrests take place in courthouses themselves, others occur in parking lots or surrounding areas, or even while the targeted person is driving away from the courthouse. Indeed, while ICE’s policy statements refer only to “arrests in courthouses” or “at courthouses,” this is far too limited a framing to capture the phenomenon itself or the concerns it generates: while arrests of those driving away from courthouses do not take place on courthouse property, they are inextricably linked to the court because the person’s appearance in court is key to their identification and subsequent apprehension. That identification can involve agents matching the person to photographs they bring with them, or their witnessing the target identifying themselves in proceedings before the court, as appears to be the case in the below excerpt from an individual’s I-213, which, with permission, her attorney shared with UWCHR researchers.

Figure 1: I-213 form documenting arrest by CBP at Othello District Court

Figure 1: I-213 form documenting arrest by CBP at Othello District Court

Consistent with ICE’s stated policy, most courthouse arrests do appear to be of specifically targeted individuals; we have received no information about “collateral arrests” of family or friends who were also present at the time. (On the other hand, the below narrative from an I-44 form released to UWCHR by CBP under FOIA suggests that agents may sometimes visit courthouses opportunistically, to observe proceedings without advance planning.)[22]

Figure 2: DHS I-44 form documenting courthouse surveillance and arrest by CBP, January 18, 2017

Figure 2: DHS I-44 form documenting courthouse surveillance and arrest by CBP, January 18, 2017

While the arrests in question do appear targeted, the individuals they seek do not always fit DHS’ characterizations that they constitute public safety threats. Many arrestees were attending proceedings relating to traffic matters, such as charges of operating a vehicle without a license or trip permit violations. Even among those facing more serious charges, two arrests in Clark County and one in Grant were of individuals with no prior convictions attending a pre-trial hearing, and thus entitled under the U.S. Constitution to a presumption of innocence.

Many individuals had U.S. citizen children or spouses, some of whom accompanied them to court and witnessed their arrest. In at least one case, the person arrested was raising her children as a single parent following the prior deportation of a spouse. For example, a caller to the Washington Immigrant Solidarity Network’s hotline reported that a woman was arrested on October 17, 2018 after attending court in Othello, Adams County, as a result of a traffic accident. She was the primary caretaker of her five children, ranging in age from 10 months to ten years of age; the children’s father had been deported to Mexico a year before.

III. Human rights concerns

Many justice practitioners object to federal immigration agents conducting civil enforcement activities in courthouses on the grounds that such practices produce a “chilling effect” that discourages immigrant communities from accessing justice. There are some particular rights concerns that emerge as a result of courthouse enforcement, and some empirical evidence—from Washington state as well as nationally—that suggests these concerns may be well-founded.

Access to justice and due process

Where individuals fear apprehension in court on immigration charges, they may be deterred from participating in the legal process, even to defend their own rights in cases where they are accused of crimes. This presents a threat to due process rights, which under the U.S. Constitution should apply to all people, regardless of nationality.

The aforementioned cases of individuals detained at pre-trial hearings paint this dilemma in particularly stark relief. These people appeared in court in an attempt to defend themselves against charges brought against them, but were arrested by ICE/CBP before they were able to do so. Immigration detention often interrupts access to defense attorneys and may block defendants’ ability to appear in subsequent proceedings to defend themselves.

Fearing such consequences, those vulnerable to deportation may choose not to appear in court at all, even where this creates cascading adverse consequences for them. Indeed, courthouse enforcement can contribute to the further criminalization of immigrants by creating a disincentive for them to comply with legal requirements that they appear in court to pay fines or resolve other matters. In some cases, these initial requirements stem from very minor violations, but immigrants’ reticence to appear in court can trigger far more serious consequences.[23]

For example, Juan Rodriguez[24] was convicted of unlawful entry in Arizona in 2013, but subsequently returned to the U.S.. He was pulled over in Vancouver, Washington, in February 2017 because he was driving with a temporary trip permit displayed upside-down in the window of a recently-purchased vehicle, and charged with Trip Permit Violation[25] in Clark County District Court. Federal court documents show that ICE agents observed him at the Clark County Courthouse on his scheduled hearing date, but he then left the court before the hearing began, likely upon noticing their presence. The Clark County Sheriff subsequently issued a warrant for Failure to Appear, and he was arrested and booked into jail. He was released, sentenced in Clark County District Court to two days of partial confinement at the Mabry Work Program, administered by the district court; on his final day of service, Mabry officials notified ICE, who arrived to apprehend him. With only two misdemeanor convictions—for unlawful entry and Trip Permit violation—he was federally prosecuted for illegal reentry and sentenced to serve two months and one week in federal prison prior to his deportation.

Unequal protection

Numerous national studies have denounced the degree to which the perceived collaboration in immigration enforcement by government agencies charged with upholding public safety has led to greater vulnerability in immigrant communities. For example, researchers in other states have found a growing reluctance to call for emergency assistance,[26] to seek legal relief,[27] and to bring charges against abusers.[28]

Particular concerns arise around gender-based violence, since many such crimes are systematically underreported by victims, even without the particular vulnerabilities of undocumented people. Advocates and law enforcement have noted a decline in reports of sexual assault and domestic violence among Latinx populations nationwide following the 2016 presidential election, including downturns as sharp as 40% in Houston and 10-25% in Los Angeles, as reported by local police departments.[29]

In May 2019, a coalition of national organizations working to end domestic violence, sexual assault and human trafficking conducted a survey of advocates and attorneys to gauge the impact of heightened immigration enforcement on their clients. Some sixty percent reported that survivors of domestic violence and sexual assault were increasingly contacting them with concerns about their legal status; three out of every four advocates surveyed reported that “immigrant survivors have concerns about going to court”, and 52% said that their clients had dropped civil or criminal cases because of fear of immigration consequences. While these findings are national in scope, Washington was among the states surveyed, and local findings conform to the trends identified nationally.

In a July 2019 survey of approximately 100 domestic violence legal advocates in Washington state conducted by the Washington State Coalition Against Domestic Violence (WSCADV),[30] 97% of advocates reported that the immigrant survivors they work with are fearful of contacting police to report domestic violence, with most reporting that their clients “worry ICE/immigration will get involved” or that they could risk losing their children, their abusive partner, or other family members to deportation as a result of contacting the police. Additionally, 78% of advocates reported to WSCADV that immigrant survivors have concerns about seeking civil protection orders due to the possible presence of immigration authorities at the court. 83% of advocates reported that immigrant survivors they worked with had dropped civil or criminal cases related to abuse due to fear; the most common reason cited for this fear (73%) was concern about alerting immigration authorities.

Similarly, in a national survey of judges, which included Washington state, a majority (54%) of participants in 2017 reported that cases in their court were interrupted because immigrant victims were afraid to come to court—up from 45% in 2016. And nationwide, the study found that the vast majority (88-94%) of judges reported concerns about the impact of immigration enforcement on access to justice for immigrant victims and witnesses.[31]

If anything, this suggests that courthouse arrests may have a negative impact on public safety—and not only for immigrants. While fear of deportation is concentrated among immigrant communities, when survivors of crime are afraid to report incidents or press charges against their abusers, the effects radiate outwards and affect all Washingtonians. Further, public safety also relies on the integrity and credibility of the justice system as a forum to prosecute and defend against alleged criminal offenses. Everyone’s safety depends upon ensuring equal protection to all those who suffer violence.

IV. Collaboration by local officials

It is legally challenging for state and local authorities to prevent federal law enforcement agencies from operating in public places, including courthouses. However, they can more readily curtail the extent to which state or local institutions collaborate in immigration enforcement involving the courts. Concerned by the aforementioned indications that courthouse arrests imperil access to justice, a number of states have undertaken efforts to do this.

Different states have adopted different approaches. For example, in October 2018, California’s Attorney General, responding to a mandate from the California State Legislature, developed guidelines for state superior courts with the goal of limiting involvement in immigration enforcement. In New York, the Office of Court Administration issued a court rule in April 2019 that prohibits ICE from arresting immigrants inside courthouses without a judicial warrant or order, and the New York’s state legislature considered the Protect our Courts Act, developed by the Immigrant Defense Project as model legislation to regulate enforcement activity at courthouses. In May 2019, New Jersey’s Chief Justice issued a directive restricting collection of data regarding immigration status by courts, and setting standards for court employees, including court security, regarding interactions with immigration agents. And most notably, in Massachusetts a group of prosecutors and public defenders sued the federal government over courthouse arrests, resulting in a June 2019 preliminary injunction blocking civil immigration arrests of people going to, attending, or leaving Massachusetts state courthouses.

In Washington, too, state and local authorities have made numerous efforts to ensure the rights of immigrant communities, even in cases where federal agencies may violate them. Numerous jurisdictions have adopted practices to limit collaboration with federal immigration enforcement. In 2019, the Washington state legislature passed the Keep Washington Working Act (SB 5497) to extend some of these protections statewide. In light of this, we took a closer look at three counties where advocates expressed particular concern regarding courthouse arrests—Adams, Clark, and Grant—to gauge the extent of local collaboration with immigration enforcement involving courthouses, and the likelihood that Keep Washington Working will address the problem.

We found evidence of varying degrees of assistance provided by local authorities in courthouse immigration arrests by ICE/CBP. In some counties—Clark, for example—court dockets are publicly accessible online, enabling their use for immigration enforcement without direct contact with local government employees. In others, we found evidence of more active collaboration, including: formal agreements to share court dockets; sharing of information about defendants, including court dates, at the request of immigration officers; and proactive flagging of specific defendants for review by immigration enforcement.

Agreements to share court dockets for day-to-day review

In Grant County, formal agreements appear to exist between county officials and CBP, whereby the former share court dockets with immigration authorities to facilitate courthouse arrests. Grant County court dockets include information such as defendants’ full names and dates of birth, their charges, the name of their lawyer, their language interpretation needs (if any), and the time, location, and nature of their hearing.

This agreement appeared to result from a January 24, 2018 meeting between Grant County Prosecutor Garth Dano and Supervisory Border Patrol Agent Thomas D. Watts, of the Spokane Sector Prosecutions Unit. Following the meeting, Dano wrote to Watts, “Tom, it was great meeting you and the fellas today. […] Look forward to your help here in Grant county,” to which Watts replied, “It was great meeting you today as well. I look forward to working together in a mutually beneficial relationship.” (See Appendix II, Record 1 below.)

In an exchange of emails following this meeting, Watts sent Grant County employees the email addresses of several CBP officers who he says “will be heavily involved in the day to day docket review.” (See Appendix II, Record 2 below.) Indeed, records released to UWCHR show that employees of the Grant County Prosecuting Attorney’s office began to forward calendars for upcoming dockets at the Moses Lake and Ephrata courthouses to the CBP agents the next day, January 25, 2018.[32]

In subsequent weeks, CBP agent Watts sent updates regarding courthouse arrests to employees of the Grant County Prosecuting Attorney’s office; for example, on February 14, 2018, Watts wrote to Deputy Prosecuting Attorney Chad A. Jenks, “Just wanted you to know we have picked up three already this week. This program is a success, I feel. In addition, we’ve developed several targets off criminal aliens that have skipped their court dates. We’ll get them as well. :)” When Jenks copied his supervisor Garth Dano on his response to Watts, Dano replied, “Great news Tom -garth.” Later, on February 23, 2018, Watts replied to an emailed court docket with another update: “By the way, we picked up three more yesterday morning. It’s been fun. :)” (see Appendix II, Records 3-4 and Record 5, below).

Similarly, a few weeks later Agent Watts reported back to the Grant County Prosecutors’ office to celebrate the arrests of four individuals with long rap sheets, noting “Thank you again for your cooperation and know that without your help, these subjects would still be in Grant County committing criminal acts.” (See Appendix II, Record 6 below.)

These practices are not limited to Grant County, however. In Adams County, correspondence obtained through public records requests suggests that the Adams County Prosecuting Attorney’s office also routinely sent court dockets to a list of CBP officers (see Appendix II, Record 7 below).[33]

Sharing information about specific individuals

The Grant County Sheriff’s Office and the Grant County Prosecuting Attorney’s office also sent emails directly to ICE Deportation Officer (DO) Jaimie Waite regarding specific individuals’ court dates, including details about their cases (see Appendix II, Record 8 and Record 9 below). In some cases, this information was shared following specific requests by DO Waite, or in regards to defendants whose immigration status was a relevant factor in their prosecution, such as “Alien in Possession of a Firearm” cases. But in others, employees of the Grant County Prosecutor’s office proactively reached out to DO Waite to send him information about defendants, including where the defendant’s immigration status was not pertinent to the charges in question. Given that all of the defendants whose information was shared with DO Waite have Latinx surnames, and that some were U.S. citizens with Latinx surnames (see Appendix II, Record 10), these communications raise concerns about possible ethnic profiling.

Confirming whether this information-sharing led to actual arrests is impossible without accessing ICE/CBP’s own records. In at least one case, an individual whose court date was proactively shared with DO Waite by a Grant County Prosecutor’s office employee in December 2017 was shortly thereafter booked into Yakima County jail as an immigration detainee under the jail’s intergovernmental service agreement with ICE. But Yakima County Jail records do not specify the location of his arrest; if he were arrested at a Grant County courthouse, only ICE records would contain this information. UWCHR is currently in litigation with ICE for access to such records.

In at least one case—the aforementioned one of Juan Rodríguez, federal court records show that officials from Mabry Work Crew, a court-operated work program in Clark County, notified ICE that Mr. Rodríguez was completing his scheduled service, and they showed up and arrested him in the lobby of the Mabry facility.

In recognition of the detrimental consequences of the active involvement of local law enforcement in federal immigration enforcement, the legislature included significant prohibitions on such collaboration in the Keep Washington Working Act. While numerous Washington counties had already adopted many of these prohibitions, for others, implementation of this new law will necessitate significant changes to policy and internal culture. The new law became effective on May 21, 2019 and requires the Attorney General to publish model policies to implement its provisions within 12 months. Local law enforcement agencies will be required to adopt these policies or provide the Attorney General with their alternative policies for complying with the law.

Yet initial monitoring and enforcement of this new law is likely to be a challenge. Community members, advocacy organizations and state and local governments are already engaged in promoting interim policies for local law enforcement agencies to implement Keep Washington Working’s provisions. Once the Attorney General’s policies are released, jurisdictions that fail to implement effective policies and who continue to collaborate with ICE and CBP’s immigration enforcement actions will face an increased risk of legal action and liability.

Keep Washington Working does not expressly limit collaboration between prosecutors and immigration authorities[34] of the sort happening in Grant County, although such collaboration does undermine the intent of the legislature and the Governor in making the Keep Washington Working Act the law in Washington State, and it can be argued that the law’s provisions implicitly include prosecutorial conduct. As such, the law’s passage may have a limited impact on curtailing current practices in this regard. Whether it will be an effective tool to limit prosecutor engagement with ICE and CBP, or whether other means will be necessary to do so, remains an open question.

Additionally, ICE’s stated policy of “coordinating with courthouse security” and conducting civil immigration arrests in non-public areas of courthouses raises questions about the extent to which the federal immigration enforcement is commandeering resources provided through local government in apparent contravention of Washington’s new law. Again, documenting such practices is difficult, since only ICE/CBP have access to records of these arrests. But some measures can be taken to, at minimum, instruct security officers on the appropriate boundaries of their interaction with federal agents. UWCHR’s preliminary research has found that contracts for courthouse security do not currently offer any guidelines for how to interact with immigration enforcement.[35] Officials in Thurston County have reportedly drafted interim policy guidelines for such circumstances following a June 20, 2019 arrest which was witnessed by courthouse security officers.

Lastly, in many cases the collaboration of local government with immigration enforcement is passive rather than active. Digital tools made available by many local governments may facilitate ICE/CBP’s identification of apprehension opportunities in courthouses. These include the online posting of daily court dockets, such as in the case of Clark County Superior Court and Clark County District Court; public jail rosters; and the sharing of information to federal databases which can be accessed for civil immigration enforcement.[36] The availability of these digital tools is uneven across the state; in light of the deleterious effects of courthouse arrests, guidelines for their appropriate use could be helpful.

Conclusion

Our research shows that ICE’s justification of courthouse arrests do not hold up to scrutiny based on what we know about the practice in Washington state.

First of all, as noted above, ICE claims that courthouse arrests are necessary public safety measures, both because the arrests target individuals who represent a threat to public security, and because now that fewer jails are collaborating with ICE detainers, courthouses present a weapons-free zone where arrests can be conducted more safely than at large in the community. Our research shows this reasoning is flawed on both counts. Many of the individuals apprehended at courthouses in Washington state had no prior criminal convictions, and/or were appearing in court on nonviolent charges, including, frequently, traffic offenses; their designation as public safety risks is questionable. Furthermore, many of these individuals were apprehended outside the courthouse itself, where their access to weapons would not be restricted anyway. And lastly, the counties where courthouse arrests are reportedly most frequent are precisely those where current local authorities collaborate most with federal immigration enforcement.[37] Far from being a response to the limitations imposed by so-called “sanctuary” provisions, and a necessary means to protect officers and the public from dangerous individuals, courthouse arrests appear to be taking place because they are convenient for ICE and CBP: when it’s publicly known where and when immigrants attending to matters of justice will appear, apprehending them in those places is easy and efficient.

Second, ICE acknowledges that courthouse arrests can generate alarm; its policy memo suggests that agents should refrain from conducting courthouse arrests in public view, and presumably, the use of plainclothes agents and unmarked vehicles is intended to render these operations less visible. But far from increasing safety, secret-police-like practices raise a host of deeply troubling issues and render us all more vulnerable. If anything, secrecy surrounding courthouse arrests may augment their corrosive impact on immigrants’ trust in the judicial system.

ICE’s assertion that concealing itself—the agency calls it “operating discreetly”—will avoid sowing fear is fundamentally wrongheaded. As the aforementioned studies show, alarm is already widespread among the immigrant community, for whom widely-reported courthouse arrests generate waves of fear registered throughout the nation. What’s more, recent arrests in Washington state—such as the June 20, 2019 incident in which plainclothes agents wrestled a man to the ground outside a courthouse in Thurston County, described by Judge Buckely described as “having all the lookings of a kidnapping”—call into question what exactly ICE means by “discreet”.

Lastly, by making accountability near impossible, secrecy facilitates abuse. In several of the accounts we reviewed, indications of potential misconduct arise, including ICE/CBP officers reportedly refusing to identify themselves; declining to present warrants; and eavesdropping on conversations between attorneys and their clients to discern a target’s place of birth. ICE and CBP’s failures to respond to lawfully submitted requests for documentation about known arrests show that this aversion to transparency is not the result of misdeeds by individual agents who defy scrutiny, but characteristic of the institution as a whole.

In this climate, it is not entirely surprising that accessing the courts has become an increasingly tenuous proposition among immigrant communities in our state. Community advocates and lawyers report that immigrants increasingly avoid going to court, frequently compromising their own safety, as well as their ability to participate in their own defense against criminal charges, in order to avoid the possibility of deportation. This undermines the fundamental mission of Washington Courts, which is to ensure access to justice for all. It also threatens trust in other public institutions essential to the rule of law, undermining the security of all Washington residents.

 

Appendix I: Reports of courthouse arrests by ICE/CBP in Washington state

Case # Date[38] City County Source[39]
Adams 1 7/13/2018 Othello Adams County WAISN
Adams 2 10/17/2018 Othello Adams County WAISN
Adams 3 11/10/2018 Othello Adams County WAISN
Adams 4 1/22/2019 Not specified Adams County WAISN
Adams 5 2/6/2019 Not specified Adams County WAISN
Adams 6 2/6/2019 Othello Adams County WAISN
Adams 7 2/24/2019 Ritzville Adams County WAISN
Adams 8 10/9/2019 Othello Adams County WAISN
Adams 9 10/9/2019 Othello Adams County WAISN
Benton 1 4/29/2019 Kennewick Benton County WAISN
Clark 1 4/27/2017 Vancouver Clark County WDA, Media (Columbian)
Clark 2 10/1/2017 Not specified Clark County WDA
Clark 3 1/24/2018 Vancouver Clark County NWIRP
Clark 4 5/8/2018 Vancouver Clark County Court records
Clark 5 1/7/2019 Vancouver Clark County Public records
Clark 6 Not specified Not specified Clark County WDA
Cowlitz 1 3/1/2019 Kelso Cowlitz County WDA
Franklin 1 3/11/2019 Pasco Franklin County WAISN
Franklin 2 4/1/2019 Not specified Franklin County WAISN
Grant 1 2/6/2018 Not specified Grant County WDA
Grant 2 2/22/2018 Not specified Grant County WDA
Grant 3 3/1/2018 Moses Lake Grant County WDA
Grant 4 3/27/2018 Not specified Grant County WDA
Grant 5 Early 2019 Ephrata Grant County NWIRP, Media (Crosscut)
Grant 6 3/18/2019 Ephrata Grant County WDA, Media (Crosscut)
Grant 7 7/11/2019 Ephrata Grant County NWIRP
Grant 8 8/19/2019 Moses Lake Grant County WAISN
Grant 9 8/19/2019 Ephrata Grant County WAISN
Grant 10 8/20/2019 Ephrata Grant County WAISN
Grant 11 8/22/2019 Ephrata Grant County WAISN
Grant 12 9/26/2019 Ephrata Grant County Attorney report to UWCHR
King 1 5/5/2017 Kent King County Court records
King 2 8/2/2017 Seattle King County WDA
King 3 10/20/2017 Federal Way King County Court records
King 4 10/23/2017 Auburn King County WDA
King 5 10/30/2017 Bellevue King County Court records
King 6 12/31/2018 Seattle King County Court records, media reports (Patch)
Kitsap 1 10/19/2016 Bremerton Kitsap County Court records
Kitsap 2 11/16/2016 Bremerton Kitsap County Court records
Mason 1 3/16/2016 Shelton Mason County Court records
Mason 2 3/22/2018 Shelton Mason County Court records
Okanogan 1 10/12/2018 Okanogan Okanogan County WAISN
Pacific 1 3/4/2019 South Bend Pacific County ACLU
Pierce 1 1/12/2018 Not specified Pierce County WDA
Pierce 2 1/19/2018 Tacoma Pierce County Court records
Pierce 3 1/31/2018 Not specified Pierce County WDA
Skagit 1 9/13/2018 Mount Vernon Skagit County WAISN
Skagit 2 1/7/2019 Mount Vernon Skagit County WAISN
Spokane 1 10/15/2018 Spokane Spokane County WDA
Thurston 1 6/20/2019 Olympia Thurston County Public records, media (Olympian)
Yakima 1 4/1/2018 Yakima Yakima County WDA

 

Appendix II: Selected public records detailing local collaboration with ICE/CBP courthouse arrests 

Record 1: Email correspondence between Garth Dano (Grant County Prosecuting Attorney) and Thomas D. Watts (CBP), January 24, 2018

 

Record 2: Email correspondence between Kaye Burns (Grant County Prosecuting Attorney’s Office) and Thomas D. Watts (CBP), January 24, 2018

 

Records 3-4: Email correspondence between Thomas D. Watts (CBP), Garth Dano (Grant County Prosecuting Attorney), and Chad A. Jenks (Grant County Deputy Prosecuting Attorney), February 14, 2018

Record 5: Email correspondence between Thomas D. Watts (CBP) and Chad A. Jenks (Grant County Deputy Prosecuting Attorney), February 23, 2018

Record 6: Email from Thomas D. Watts (CBP) to Chad A. Jenks and Kevin J. McCrae (Grant County Deputy Prosecuting Attorneys), March 14, 2018

 

Record 7: Email from Louis V. Koler (CBP) to Helen Kenyon (Adams County Prosecuting Attorney’s Office), April 10, 2019

 

Record 8: Email from Janet Millard (Grant County Prosecuting Attorney’s Office) in reply to Jaimie A. Waite (Deportation Officer, ICE), June 18, 2018

Record 9: Email from Sgt. Greg Knutson (Grant County Sheriff’s Office) to Jaimie A. Waite (Deportation Officer, ICE), October 11, 2017

Record 10: Email from Jaimie A. Waite (Deportation Officer, ICE) in reply to inquiry from Alan White (Grant County Chief Deputy Prosecutor), September 11, 2018

 

 

Notes

[1] See for example articles by Lilly Fowler, More immigrants report arrests at WA courthouses, despite outcry, Crosscut, (April 9, 2019); Sydney Brownstone, Vancouver Immigrant Claims ICE Arrested Him After Eavesdropping on Him and His Lawyer, The Stranger (Apr 4, 2018); and Natasha Chen, More ICE agents seen waiting around local courthouses to intercept people, KIRO 7 (March 23, 2017).

[2] See for example a community alert issued via social media on August 22, 2019 by the Washington Immigrant Solidarity Network regarding ICE activity at the Grant County Courthouse in Ephrata, WA; and a press release issued by Northwest Immigrant Rights Project regarding a January 2018 arrest at a courthouse in Vancouver, WA.

[3] See for example a May 2019 interview with ICE Seattle acting field director Bryan Wilcox by conservative talk radio and podcast host Lars Larson.

[4] See for example the American Civil Liberties Union’s 2018 report Freezing Out Justice.

[5] In June 2017, the Washington State Bar Association Board of Governors expressed concern about courthouse arrests by immigration enforcement agents, and urged DHS Secretary John Kelly to add courthouses to ICE’s sensitive locations list. In August 2017, the American Bar Association House of Delegates urged Congress to do the same.

[6] Washington’s own Supreme Court Justice Mary Fairhurst, in a March 2017 letter to the Department of Homeland Security, asked that ICE and CBP cease this practice. Justice Fairhurst’s letter reads, in part, “When people are afraid to access our courts, it undermines our fundamental mission. …These developments risk making our communities less safe.”

[7] See this statement by the U.S. Commission on Civil Rights, a bipartisan independent agency.

[8] Detainers are documents which ask jails to hold inmates in custody beyond the time they would normally serve in order to hand them directly to ICE. This practice was found to be a violation of the Fourth Amendment to the U.S. Constitution by a federal magistrate judge in the 2014 Miranda-Olivares v. Clackamas County decision. Several courts have found that holding people on the basis of detainers is illegal and makes the locality subject to liability. See, for example, this recent decision by the Second Circuit Court of Appeals, which could result in liability for New York City and the federal government related to the use of detainers.

[9] See ICE’s FAQ on Sensitive Locations and Courthouse Arrests: “Courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails…Individuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband. Accordingly, civil immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents.”

[10] Although we are unaware of any official CBP policy directive on courthouse arrests, in a conversation with a UWCHR researcher, a CBP agent in Washington state echoed similar explanations for courthouse arrests (the safety advantage of doing an arrest in a weapons-free zone and the desire to avoid spreading fear as when undertaking arrests in the community).

[11] Immigrant Defense Project, “The Courthouse Trap: How ICE Operations Impacted New York’s Courts in 2018”, January 2019.

[12] For example, ICE apprehended a victim of human trafficking in a Human Trafficking Intervention Court in New York; a Michigan father attending family court to seek custody of his kids to protect them from their mother’s abusive partner; an El Paso, TX woman seeking a protective order against an abusive ex-husband; and a woman and her son in Charlotte, GA following a hearing related to a domestic violence charge.

[13] See Nicholas Pugilese, “New rules seek to limit ICE arrests in N.J. courthouses”, Whyy.org.

[14] See the January 10, 2018 policy memo, which reads, in part, “ICE officers and agents will document the physical address of planned civil immigration enforcement actions in accordance with standard procedures for completing operational plans, noting that the target address is a courthouse… ICE maintains records generated pursuant to this policy, specifically the Field Operations Worksheets (FOW) and Enforcement Operation Plan (EOP).”

[15] I-213 Record of Deportable/Inadmissable Alien forms are used by DHS to establish an individual as eligible for removal. Information included on the form includes “the respondent’s biographic information; date, place, time, and manner of entry to the United States; immigration record and any history of apprehension and detention by immigration authorities; criminal record, if any; family data; any health or humanitarian aspects; and disposition (whether or not an NTA [Notice to Appear] is to be issued).” For more information, see Collopy, Crow, and Sharpless, “Challenges and Strategies Beyond Relief”, 2014.

[16] In response, for example, to our appeal of this practice by CBP, the agency argued that “The withheld location information would reveal significant station-level operational details related to the law enforcement guidelines, techniques and procedures that are used when handling threats at U.S. borders, specifically the determination of strategies to combat against the entry of undocumented aliens and contraband into the country. These law enforcement guidelines, techniques and procedures have been withheld in order to protect CBP’s methods in evaluating and processing potential threats at the United States’ borders. Disclosure of the alien interdiction locations at or near each station, coupled with information already available to the public, including the location of each station and the specific focus and operations of each station, would give undocumented aliens the ability to circumvent and exploit less resilient stations.”

[17] Under FOIA, the UWCHR has requested various sets of records that, if released, could reveal when and where ICE and CBP apprehend people at courthouses. CBP has released some apprehension records, but the locations are redacted, rendering the documents useless for answering questions about courthouse arrests specifically. ICE has declined to release any records that specify arrest locations. As of this writing, we are in discussions with both agencies for access to a representative sample of I-213s (the forms the agencies fill out upon apprehending an immigrant); these would include location information, but their usefulness for this study is limited given that, due to sampling, they might or might not contain records of courthouse arrests in particular. We have also sought records of Field Operations Worksheets—documents used to secure supervisor authorization for a given enforcement operation—for a number of known courthouse arrests, and records of correspondence between ICE’s Regional Director and subordinates, to shed light on the circumstances in which such operations are planned and authorized within the agency. All of these requests are pending.

[18] UWCHR researchers read and coded PACER records for 548 cases in which an individual was federally prosecuted for immigration violations in the state of Washington from January 2016 – July 2019; this involved 209 prosecutions for illegal reentry (1326) in the Western Washington district and 391 in Eastern Washington; and 20 prosecutions for illegal entry (1325) in the Eastern Washington district. Case files for prosecutions in Western Washington include a sworn statement detailing the manner in which the defendant was apprehended; in 10 cases, all of them in the Western Washington district, this narrative specified a detention at or near a courthouse. As sworn legal declarations, these are highly reliable data sources, yet they only represent a minority of all courthouse arrests, because not all of those arrested at a courthouse are subsequently federally prosecuted, and even in cases where they are federally prosecuted, many prosecution records, especially those from the Eastern district, do not specify the location of arrest.

[19] Concerned about this practice, a number of human rights organizations began compiling data reported to them about courthouse arrests; the Washington Defender Association and the Washington Immigrant Solidarity Network shared internal records with us that included first-person accounts by those who witnessed courthouse arrests as well as secondhand reports by family members or attorneys of those detained. The arrests documented by these organizations likely represent only a small portion of those taking place: many arrests are not witnessed, in part because agents wear plainclothes and drive unmarked vehicles, and of those that are, it is impossible to know how many witnesses have connections to these organizations and choose to report what they saw. These accounts vary in detail and are not always possible to corroborate using secondary sources. We have also corresponded with lawyers from the Northwest Immigrant Rights Project and other organizations about select cases involving their clients.

[20] Journalists from Crosscut, the Olympian, the Columbian, and other local media have reported on courthouse arrests. Where possible, we have sought to confirm the accuracy of these accounts through other sources.

[21] See for example a May 2019 interview with ICE Seattle acting field director Bryan Wilcox by conservative talk radio and podcast host Lars Larson.

[22] It may be relevant to note that this document is from CBP, rather than ICE, and the agency may not have had then (or have now) a policy requiring advance planning of courthouse operations as described in ICE’s 2018 directive; it is unknown whether CBP issues its officers any policy guidelines regarding courthouse arrests.

[23] For example, failure to appear for court risks an additional criminal charge (and possible conviction) under RCW 9A.76.170’s Bail Jumping statute. In turn, such a conviction is most often classified as an “aggravated felony” under immigration law, almost always resulting in permanent banishment from the U.S. See 8 USC 1101(a)(43)(Q) and (T).

[24] To protect this individual’s privacy, we refer to him here by a pseudonym.

[25] RCW 46.16A.320.6

[26] See Tom K. Wong, Karina Shklyan, Anna Isorena, and Stephanie Peng, “The Impact of Interior Immigration Enforcement on the Day-to-Day Behaviors of Undocumented Immigrants”, April 3, 2019, U.S. Immigration Policy Center. Wong et al surveyed a sample of undocumented immigrants and found that respondents were less likely to report crimes they witnessed or were a victim of to police when told that local law enforcement are working with ICE for federal immigration enforcement.

[27] See Catalina Amuedo-Dorantes and Esther Arenas-Arroyo, “Immigration Enforcement, Police Trust, and Domestic Violence”, March 16, 2019. Amuedo-Dorantes and Arenas-Arroyo find that increased immigration enforcement reduces rates of self-petitions for legal status by domestic violence survivors under the Violence Against Women Act.

[28] In a 2019 survey conducted by a coalition of seven national organizations, of more than 500 advocates and attorneys working with immigrant survivors of domestic violence and sexual assault, three out of four service providers reported that immigrant survivors had concerns about going to court. See a press release and key findings from the survey.

[29] See Jennifer Medina, “Too Scared to Report Sexual Abuse. The Fear: Deportation”, New York Times, April 30, 2017.

[30] A copy of this survey, which has not been made public, was shared with UWCHR by WSCADV.

[31] See ACLU, “Freezing Out Justice: How immigration arrests at courthouses are undermining the justice system”, 2018.

[32] We note that the earliest reported courthouse arrests by ICE/CBP in Grant County included in the Appendix to this report occurred in February 2018.

[33] A public records request for email correspondence between employees of the Adams County Sheriff’s Office and ICE/CBP officials from November 1, 2017 to April 29, 2019, submitted by UWCHR in April 2019, remains pending as of the date of this preliminary report.

[34] In Massachusetts, prosecutors and public defenders joined together to contest ICE’s arrest of immigrants in courthouses, but in Washington, at least some prosecutors have been directly supportive of such practices.

[35] See for example Grant County’s security service agreement with a private security contractor.

[36] For this reason, some other jurisdictions like King County Sheriff’s Office have decided to suspend information-sharing with federal databases.

[37] We refer here to practices like complying with ICE/CBP detainer requests, allowing ICE/CBP agents to interview inmates in local jails without a lawyer present, and notifying ICE/CBP of the date and time an inmate will be released. All of these forms of collaboration are prohibited under Keep Washington Working, and will therefore cease as the law is implemented.

[38] In some cases, the date included here is the date that the incident was reported, not the date of the arrest itself. In addition to the likelihood of other, unreported cases, it is possible that some cases represented here may be duplicated.

[39] Cases sourced to the Washington Immigrant Solidarity Network (WAISN) include incidents reported via the network’s rapid response hotline as well as arrests witnessed by WAISN volunteers; cases sourced to the Washington Defenders Association (WDA) were reported in response to a survey of public defenders and other attorneys who witnessed or received reports of courthouse arrests of their clients or other individuals; cases sourced to Northwest Immigrant Rights Project (NWIRP) and the ACLU of Washington include individuals represented by these organizations.