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Protecting Immigrant Rights: Is Washington’s Law Working?

Panorama of the Pacific Northwest from Space. Image courtesy of the Earth Science and Remote Sensing Unit, NASA Johnson Space Center. ISS042-E-294596. https://eol.jsc.nasa.gov/

August 11, 2021

(Updated August 11, 2021 at 11:18AM, to reflect comments from the Washington State Governor’s Office concerning DOC and ACCESS database; and at 12:59PM to reflect comments from Franklin County and Clark County officials; further updated September 2, 2021 at 2:10PM to reflect comments from the Washington State Attorney General’s Office concerning state agency and local law enforcement policies.)

Executive Summary

2019’s Keep Washington Working (KWW) Act and 2020’s Courts Open to All Act (COTA) place Washington state at the forefront of national efforts to protect immigrant rights through state law.

Yet the mere passage of these laws doesn’t mean they’re actually being enforced. After 18 months of research evaluating the implementation of KWW and COTA through the analysis of practices in 13 priority counties, this first report of the University of Washington Center for Human Rights (UWCHR) “Immigrant Rights Observatory” shares several key findings.

Because the local police and sheriffs have historically played a significant role in bringing Washingtonians into contact with federal immigration enforcement, this report focuses on the ways in which law enforcement agencies and jails have implemented KWW. Key findings include the following:

  • Law enforcement agencies across our state are dedicating energy and effort to KWW implementation—though not, for the most part, using the Attorney General Office’s model policies designed to provide guidance to local agencies on this process.
  • Everyday policing still blurs into opportunities for federal immigration enforcement. Despite KWW’s prohibitions on the sharing of non-public information about immigrant Washingtonians with ICE/CBP for purposes of civil immigration enforcement, some local police and sheriff’s deputies continued to summon federal agents to the scene of traffic stops, to provide tips about the location of specific individuals, and to participate in multi-agency task force operations that include civil immigration arrests.
  • Washington jails and prisons remain key points in the pipeline to immigration detention and deportation. In the booking process, some jails continued to request place of birth information that the law bars them from gathering, and to share it—as well as other information—with ICE/CBP. Detainers, or “immigration holds” which request jails keep custody of individuals beyond their release date to facilitate their apprehension by ICE/CBP, continued to be honored in multiple jurisdictions.
  • Jail contracts in flux. KWW mandates Washington’s jails to cease holding immigrants in civil detention under contract with ICE/CBP by December 2021; in anticipation of this date, at least two jails have already terminated the practice. However, one other jail has indicated it expects to continue its contract with CBP beyond that date, using probable cause statements from CBP to justify the detention as criminal rather than civil detention.
  • Areas unaddressed by the law remain cause for concern. These include regular DOC-ICE release notifications, local/federal database interoperability, and other ways in which immigrants with criminal recormcnairds—not necessarily even convictions—experience law enforcement and the justice system in dramatically different ways than other Washingtonians, solely because of their citizenship.

Introduction

In recent years, Washington state has been at the forefront of national discussions about the extent to which local governments should be involved in enforcement of federal immigration law. In response to growing concerns about rights violations, in both 2019 and 2020 the state legislature passed landmark legislation restricting collaboration with Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). The most comprehensive of these laws is the Keep Washington Working Act,[1] which went into immediate effect upon its signing on May 21, 2019, arguably conferring upon Washington status as a “sanctuary” state.[2] This law was complemented by the passage of the Courts Open to All Act the following year, which provided more specific guidance to the justice system regarding issues including immigration enforcement at or near courthouses.[3] Taken together, the Keep Washington Working (KWW) and Courts Open to All (COTA) Acts are expansive in reach: emphasizing that unauthorized presence in the United States is not a crime, they mandate new practices in public schools, law enforcement, shelters, courthouses, jails, prisons, and health care settings, in an effort to “ensur[e] the state of Washington remains a place where the rights and dignity of all residents are maintained and protected.”[4]

At the same time, the passage of these laws does not guarantee the on-the-ground enjoyment of the rights they purport to protect; the implementation and enforcement of the laws’ concrete provisions are also critical steps. Given the multiple and longstanding forms of collaboration between local authorities in Washington and federal immigration agencies, there is reason for concern about the extent to which these new laws are being upheld in practice today. For this reason, and at the request of a coalition of immigrant rights organizations serving communities across Washington, the UW Center for Human Rights (UWCHR) developed the “Immigrant Rights Observatory” to monitor and analyze compliance with KWW and COTA across Washington State.[5] Working with the Washington Defender Association, Northwest Immigrant Rights Project, ACLU of Washington, Columbia Legal Services, OneAmerica, and Washington Immigrant Solidarity Network, as well as other stakeholders, the Observatory aims to identify areas of concern and possible avenues to improvement, such that together we might continue to move towards a Washington in which the rights of all people are respected.

Our initial research has focused particularly on law enforcement’s implementation of KWW across the state.[6] To date, our findings speak to both the promises and pitfalls of implementing “sanctuary” policies at scale—a significant feat in a state with 39 county sheriff’s offices, over 200 local/Tribal police agencies, plus local corrections departments and various state agencies. The inherent challenge of coordinating policy changes across such numerous and diverse institutions is further complicated by the contemporary politicization of immigrant rights; in fact, leading law enforcement officials in some jurisdictions have publicly stated their intention to disregard the law,[7] and in interviews with UWCHR researchers, others expressed concerns that paths to implementation proposed by state authorities were overly political,[8] leading them to craft their own interpretations of the law. Perhaps as a result of this patchwork implementation process, our research reveals concrete and heartening evidence of changes in local practices spurred by these laws, but also cases in which localities have continued problematic practices well after the laws’ passage. Lastly, it also surfaces areas left untouched by these laws, but which continue to raise rights concerns.

The Observatory’s effort is aimed at measuring and monitoring these changes in real time—and then examining to what extent any changes seen are effective at improving protections for immigrant rights. We hope this research will contribute to ongoing conversations surrounding the enforcement of these important laws. Thus far, immigrant rights organizations have already brought violations documented through this research to the attention of local officials in multiple jurisdictions; in some, but not all cases, this has enabled productive conversations and helped bring localities into greater compliance with state law. The persistence of incompliance, however, underscores the ongoing need for further monitoring and analysis, and in some cases may suggest the need for litigation and/or further legislative action to ensure these Washington state laws achieve their stated purpose.

Research methods

To measure law enforcement compliance with KWW, we draw on findings from multiple sources, obtained and analyzed by UWCHR researchers working in collaboration with immigrant rights organizations in our state

First, we draw on UWCHR’s growing collection of ICE and CBP documents obtained under the federal Freedom of Information Act, in some cases through litigation. Of particular relevance here is a collection of over 4000 pages of I-213s—internal agency documents produced any time ICE or CBP apprehend a person they deem to be “deportable”—from operations in Washington and neighboring states.[9] These documents contain details about individuals and the circumstances of their encounter, including the date, location, method, and outcome, as recorded by the agency itself.[10] Using a data scraping tool built for this project by specialists at the Human Rights Data Analysis Group, UWCHR researchers analyzed these documents to discern statewide enforcement patterns and examine specific practices prohibited under KWW. We anticipate publishing further results from this area of research in the future.

Second, we compiled more in-depth data on local policies and practices in 13 priority counties[11] across Washington. Due to resource constraints, our team chose to focus on these counties because on-the-ground advocates reported practices that suggested reason for concern, and/or because of their size and strategic importance to the state. Taken together, the counties sampled represent approximately 68% of Washington’s population. In each county, we sought data from a range of sources: partner organizations reported individual cases brought to their attention; UWCHR researchers obtained and examined public records documenting policies and practices,[12] as well as written communication with federal immigration authorities;[13] and, where possible, UWCHR researchers conducted interviews with law enforcement officials to permit a richer understanding of local agency perspectives.

Map of Washington state highlighting 13 priority counties for UWCHR's Immigrant Rights Observatory: Adams, Benton, Chelan, Clark, Cowlitz, Franklin, Grant, King, Okanogan, Pierce, Skagit, Spokane, and Yakima counties.

These research efforts brought to light a diversity of local practices, not only as regards implementation of KWW, but also as regards transparency. While some jurisdictions responded promptly to public records requests and agreed to interviews, others were less cooperative, in some cases openly flouting the requirements of Washington’s Public Records Act.[14]

To date, we continue to receive records on a rolling basis from jurisdictions across the state. While some localities have already provided us complete collections of all documents requested, others have not; King County, for example, has told us that doing so will take them about five years. This uneven process of disclosure makes it impossible to draw quantitative comparisons across counties or posit firm conclusions about across-the-board compliance. However, the data obtained thus far does enable us to document broad patterns seen to date and to highlight areas of emergent concern. We expect to deepen and complement this analysis with further reporting as more data becomes available.

Predicting KWW impact

Understanding how federal agents enforce immigration laws across our state is a complex undertaking, in large part because of the lack of transparency that characterizes much of ICE and CBP operations.[15] But previous research has found that, from October 2014 to May 2018, almost half of the ICE arrests in Washington state took place through collaboration with local jails, a higher rate of local-federal collaboration than the national average.[16]

Taken against this backdrop, KWW should be expected to produce noteworthy change, since it curtails forms of collaboration that have been central to the enforcement strategies ICE and CBP have historically used in our state. In the below, we discuss the implementation process itself before moving to a more detailed examination of specific practices affecting police and sheriffs, first, and then jails and prisons.

Location of ICE/CBP apprehensions in Washington state, based on a collection of 2,544 I-213 forms documenting apprehensions from January 1, 2019, through April 2, 2020. ICE and CBP interior enforcement is distributed across most of the state’s counties; clusters of apprehensions are associated with points of entry, particularly along the northern border in Whatcom County and in SeaTac, WA, location of the Seattle-Tacoma International Airport and SeaTac Federal Detention Center. Top 5 locations and count of I-213 forms are: SeaTac (416), Blaine (208), Sumas (168), Ephrata (101), Tacoma (98). Data and code used to create this graphic available at: https://github.com/UWCHR/i-213-analysis

Location of ICE/CBP arrests in Washington state, based on a collection of 2,543 I-213 forms documenting apprehensions from January 1, 2019, through April 2, 2020. ICE and CBP  enforcement is distributed across most of the state’s counties; clusters of apprehensions are associated with points of entry, particularly along the northern border in Whatcom County and in SeaTac, WA, location of the Seattle-Tacoma International Airport and SeaTac Federal Detention Center. Top 5 locations and count of I-213 forms are: SeaTac (416), Blaine (208), Sumas (168), Ephrata (101), Tacoma (98). Data and code used to create this graphic available at: https://github.com/UWCHR/i-213-analysis

Rate of ICE/CBP arrests per capita across Washington state counties, based on a collection of 2,544 I-213 forms documenting apprehensions from January 1, 2019, through April 2, 2020. Note higher rates of apprehensions in some northern border, eastern Washington, and Olympic peninsula counties. For full table of I-213 counts and apprehension per capita see Appendix II below. Data and code used to create this graphic available at: https://github.com/UWCHR/i-213-analysis

Rate of ICE/CBP arrests per capita across Washington state counties, based on a collection of 2,543 I-213 forms documenting apprehensions from January 1, 2019, through April 2, 2020. Note higher rates of apprehensions in some northern border, eastern Washington, and Olympic peninsula counties. For full table of I-213 counts and apprehension per capita see Appendix I below. Data and code used to create this graphic available at: https://github.com/UWCHR/i-213-analysis

KWW implementation in county law enforcement policies

Perhaps the most obvious measure of local compliance with KWW is the degree to which local jurisdictions updated their official policies upon the law’s passage. UWCHR analysis of interviews and written communications revealed many complex processes at play as local law enforcement agencies grappled with the new requirements after KWW’s entry into force in May 2019.

Keep Washington Working Act guidance and model policies published by Washington State Office of the Attorney GeneralIn an attempt to ensure that local policies were brought into compliance with the law as seamlessly as possible, KWW requires that all state and local law enforcement agencies either adopt policies consistent with a set of model policies designed by the Attorney General’s Office (AGO), or notify the AGO that they have opted for an alternative set of KWW-compliant policies.[17] The law further stipulates that final policies of state agencies must be published.[18] Unfortunately, to date, only five local law enforcement agencies have submitted their new policies to the AGO.[19] Yet our research shows this is not because the remaining jurisdictions have all chosen to implement the AGO’s policies verbatim. In fact, we did not locate a single jurisdiction that chose to implement the AGO’s model policies exactly as written. Instead, counties have undertaken a range of approaches to implement KWW, described below.

Many county agencies updated their policies after KWW’s passage. Yet at times these updates introduce contradictions, or fail to fully correct outdated language. For example, Grant County policies note in one section that, “The Grant County Sheriff’s Office Correctional Facility will notify United States immigration officials when any foreign national is committed to the custody of the correctional facility,” a clear KWW violation, while stipulating in another section that “Corrections deputies shall not… [p]rovide information pursuant to notification requests from federal immigration officials for the purpose of civil immigration enforcement.”[20] These mandates are obviously contradictory.

By contrast, other jurisdictions have unusually strong language on the books to ensure compliance with KWW. King County, for example, goes beyond the requirements of KWW by not only limiting county officials’ collaboration with ICE and CBP, but imposing further requirements that they regularly monitor access to non-public databases to prevent accidental disclosures of protected information. (This requirement was instituted following revelations that county officials had failed to restrict ICE officers’ access to a jail database despite a 2018 ordinance requiring them to do so.)[21]

Against this patchwork of changing and contradictory policies, there is evidence that at least some law enforcement officers wrestled with confusion over how to interpret the new requirements, in some cases reaching out to ICE agents for instruction. For example, in July 2019, Grant County Prosecutor’s Office Civil Deputy Kevin McCrae wrote to ICE Seattle Deputy Chief Counsel James Yi, seeking guidance on how to implement existing consular notification requirements since KWW bans asking about nationality. And in September 2019, Lieutenant Hallatt of the Grant County Sheriff’s Office wrote to ICE Deportation Officer Jaimie Waite, asking “Could you please help me out so I can ensure our people are on the same page. I am particularly interested in what a Civil Immigration Warrant looks like vs a Criminal Immigration Warrant looks like.” In apparent response to multiple inquiries like these, ICE and CBP held multiple meetings for officers from the Grant County Sheriff’s and Prosecutor’s Offices throughout 2019. An August 5, 2019 gathering was described by ICE Deportation Officer Jaimie Waite as a “policy meeting with Grant County Sheriffs and Grant County Prosecutors to clarify the new policies with ICE (and [Border Patrol]) with what can and cannot happen”; following that meeting, all staff received an emailed memo enumerating new practices in light of KWW. An October email described an upcoming meeting the following month, convened for Grant County Police Chiefs and ICE “to address all the questions and concerns.”[22]

In Okanogan County, Undersheriff Culp told UWCHR in an interview that county officials were uncomfortable with the “heavy political overtones” of the AGO’s model policies,[23] so chose to devise their own method of policy implementation. They sought guidance from the federal agencies charged with immigration enforcement—in this case, Border Patrol. UWCHR reviewed correspondence referring to multiple in-person meetings between federal agents and county employees on this matter. On June 14, 2019, Okanogan County Sheriff Tony Hawley asked Border Patrol agent Aaron McNair, “If possible could you also research any federal laws which may help contradict the states law for sanctuary state [sic]” to which McNair responded, “Just as a heads up, 8 USC 1373 and a 2012 case ARIZONA et al. v. UNITED STATES are the two examples we have found which contradict the state law regarding cooperation and information sharing. We can discuss in further detail on Thursday.” (In fact, this is inaccurate; as KWW stipulates in Section 8(1), the law does not contradict 8 USC 1373.)

In Grant, Okanogan, and Benton counties, implementation efforts led to the adoption of policies (or policy directives, in the case of Grant[24]) which differ from the AGO’s model policies in at least one significant way. They allow county officials to collaborate with ICE/CBP in “criminal investigations” where ICE/CBP present a statement asserting that their inquiry is criminal in nature. Both Okanogan and Grant County deem Probable Cause statements by ICE/CBP as sufficient; Benton terms an apparently similar statement an “ICE Criminal Investigation Declaration.” The AGO’s model policies, by contrast, require ICE/CBP to present a judicial warrant; this is a more stringent standard, as it requires independent review by a judge before collaboration can occur. (See the conclusion to this report for a discussion of this point.)

In other words, while drafters of KWW envisioned a process whereby localities would receive guidance from the AGO regarding how to interpret and implement the law’s new requirements,[25] some law enforcement leaders preferred to seek guidance from other sources, including the institutions with which the law had sought to limit their interactions. As long as the practices implemented adhere to the requirements of KWW, this is perfectly legal, but it appears to have resulted in practices that vary in significant ways from county to county.

In the below, we examine five key practices where KWW mandated changes—one affecting police and sheriffs, and four affecting jails and prisons. In each case, we describe the historical patterns of collaboration, the changes mandated under KWW, and our initial findings as regards compliance with KWW.

Mandated changes: police and sheriffs

Pre-KWW

In Washington State, as noted above, local police and sheriffs have historically played a significant role in bringing individuals into contact with federal immigration enforcement. At times upon encountering a person they believed might be in the country without authorization, local law enforcement agents have inquired about citizenship status, proactively notified ICE/CBP, and/or held people until such time that federal authorities could take them into custody. For example:

  • On August 24, 2014, a Spokane Police officer responding to a traffic accident contacted federal agents about one of the involved drivers, despite there being no criminal warrants issued for his arrest; the officers then required him to remain at the scene until Border Patrol agents arrived. The case resulted in a lawsuit, which was settled when the City of Spokane agreed to pay damages and fees for unlawfully detaining the motorist.[26]
  • On August 10, 2018, Okanogan County dispatch summoned the Border Patrol to a traffic stop near Tonasket, reporting that the police officer had described “four Hispanic males… with ‘sketchy’ documentation.” When the Border Patrol agents arrived, they found the police and state patrol on the scene with emergency lights activated. The police officer reported having run the driver’s name and date of birth through “the databases” and discovered an immigration violation. Border Patrol arrested all four men and sent them to the county jail, which had a federal contract permitting it to hold people on civil immigration violations.ENCOUNTER/ARREST: On 8/10/2018 Border Patrol Agent (b) (6), (b) (7)(C) was on duty as a Border Patrol Agent assigned to the (b) (7)(E) border patrol station in Oroville Washington. BPA (b) (6), (b) (7)(C) was driving a marked unit and wearing a border patrol uniform. BPA (b) (6), (b) (7)(C) was on duty when Spokane Sector radio (b) (7)(E) notified all agents over the service radio and advised that (b) (7)(E) County Sheriff's Office Dispatch (CD) had called and advised that a (b) (7)(E) (b) ( Washington Police Officer had made a traffic stop of 4 Hispanic males on highway 7 north of (b) (7 Tonasket. CD advised that the officer stated that the individuals were not answering his questions and had "Sketchy" documentation. (b) (7)(E) advised me that the drivers name and date of birth were run through the data basis and his records came back with a removal out Nogales, Arizona BPA (b) (6), (b) (7)(C) arrived on scene at 2138 hours and saw a silver Chevrolet sedan occupied by 4 Hispanic males with a Tonasket police vehicle and a Washington State Patrol vehicle behind them with the emergency lights activated. BPA (b) (6), (b) (7)(C) activated his emergency lights and made contact with the Tonasket Police Officer. BPA (b) (6), (b) (7)(C) made contact with the passenger who was 1 of 4. BPA (b) (6), (b) (7)(C) identified himself as a Border Patrol Agent in English. The passenger indicated that he did not speak English. BPA (b) (6), (b) (7)(C) then identified himself as a Border Patrol Agent in Spanish. BPA (b) (6), (b) (7)(C) asked the passenger for identification in Spanish. The passenger handed a Mexican voter registration card with the Name: (b) (6), (b) (7)(C) BPA (b) (6), (b) (7)(C) asked subject if he had documents to be or remain in the United States, the subject advised he did not. BPA (b) (6), (b) (7)(C) asked the subject if he was in the United States illegally. Subject stated he was in the United States illegally. BPA (b) (6), (b) (7)(C)advised subject that he was under arrest at this time. BPA (b) (6), (b) (7)(C) placed subject in handcuffs and put him in the back seat of his patrol vehicle. Once all four individuals were determined to be in the United States illegally, they were taken into custody. BPA (b) (6), (b) (7)(C) read Miranda warning rights off of his department issued Miranda warning card in Spanish at 2212 hours. All four individuals stated that they understood there rights by verbally saying yes in Spanish. The individuals were transported to the (b) (7)(E) Border Patrol Station where they were processed for removal.
  • On April 30, 2019, Spokane Police officers conducted a traffic stop of a vehicle. ICE documents note that the vehicle had temporary license tabs as the only reason for the stop; the driver subsequently explained he had just purchased it earlier that day, so no infraction had apparently been committed. However, a Border Patrol Agent came to the site of the traffic stop “to assist,” and once on the scene, determined that the driver was undocumented and took him into custody.On Tuesday, April 30, Border Patrol Agent Intelligence (b)(6), (b)(7)(C) was performing his assigned duties as a Task Force Officer with the Spokane Regiona Safe Streets Task Force (SSTF) in Spokane, Washington. At approximately 3:30 p.m., Spokane Police Officers conducted a vehicle stop of a red Hummer displaying a temporary paper registration, near the intersection of Indiana and Washington in Spokane. (b)(6);)(b)(7)(C) responded to assist. The driver and sole occupant of the Hummer provided a California driver's license identifying him as (b)(6);)(b)(7)(C) During a non-custodial interview, Mill stated that he had recently traveled from Compton, CA, to Spokane to look into business opportunities, with a plan of moving there in the future. (b)(6), (b)(7)(C) stated he had driven a rental vehicle to Spokane, but had just bought the Hummer earlier that day for approximately $10,000, and had put $5000 in cash as a down payment. (b)(6), (b)(7)(C) had over $500 in his pocket. said there was an additional $7000 in the Hummer that was his personal savings that he had brought with him because he was looking for a place to live. (b)(6), (b)(7)(C) also had a room key for the Marriott Courtyard motel in Spokane, WA, marked with a room number, in his pocket. (b)(6), (b)(7)(C) told officers he had checked out of the Marriott Courtyard earlier that day. (b)(6), (b)(7)(C) questioned (b)(6), (b)(7)(C) concerning his citizenship and nationality. (b)(6);)(b)(7)(C) stated that he grew up in Compton, California, but he was born in Zacatecas, Mexico, and had been brought to the United States as a small child. (b)(6), (b)(7)(C) said he thought at one point he had applied for DACA status, but was not sure and could not remember any details. (b)(6), (b)(7)(C) was not in possession of any legal immigration document that would allow him to remain in the United States. (b)(6);)(b)(7)(C) queried through (b) (7)(E) Dispatch informed (b)(6), (b)(7)(C) that (b)(6), (b)(7)(C) had no criminal or immigration history, and had no record of being issued any US immigration document. At approximately 3:45 p.m., (b)(6);)(b)(7)(C) placed (b)(6), (b)(7)(C) under arrest for being illegally present in the United States.

While in some cases these actions took place at the initiative of individual officers, past UWCHR research has noted that some local jurisdictions’ policies instructed officers to call Border Patrol or ICE to the scene during regular law enforcement encounters like these. Once present, Border Patrol or ICE would often pursue the opportunity to enforce federal immigration law.

Behind the scenes, local law enforcement agencies across Washington have also historically aided ICE and CBP in their investigations through various forms of information-sharing. Many of these have involved active assistance in investigations, in which local officers provide dates and/or places of birth, photographs, and other identifying information about individuals—sometimes in response to specific inquiries from ICE/CBP, and sometimes proactively at their own initiative.

Advocates object to such practices because they undermine trust between immigrant communities and local police by involving officers in an area of work that is not a public safety concern. Local police have neither the legal authority or training to enforce federal immigration offenses; empowering them to do so can arguably lead to racial or ethnic profiling by encouraging officers to treat those they perceive as foreign-looking (or foreign-sounding) differently than others. According to Section 6 (2) of KWW, “the legislature … finds that the immigration status of an individual or an individual’s presence in, entry, or reentry to, or employment in the United States alone, is not a matter for police action,”[27] leaving enforcement of immigration violations to federal agents.

To preserve this distinction, KWW prohibits state and local law enforcement agencies from participating in the enforcement of civil immigration laws, except where required by law.[28] The act also bars them from providing information that is not otherwise publicly available to federal immigration enforcement agencies in noncriminal matters, except where required by law; and from collecting information about individuals’ immigration status or place of birth, unless the inquiry forms part of an investigation of a crime under state or local law.[29]

Post-KWW

Documents received by UWCHR from ICE show that even after KWW’s entry into force on May 21, 2019, ICE officers and/or Border Patrol agents continue to be called to the site of traffic stops initiated by local police or sheriffs across Washington.[30] For example:

  • On June 19, 2019, Kennewick Police Officers conducted a traffic stop and summoned ICE to the scene for a “road side assist,” apparently because they believed the men in the vehicle had been targets of a recent inter-agency task force operation. ICE arrested two men and took both to the Northwest Detention Center in Tacoma.Record of Deportable/Excludable Alien: 06/19/2019, (b)(6);)(b)(7)(C) On 06/19/2019, (b)(6);)(b)(7)(C), was encountered and arrested after assisting the (b) (7)(F) with a road side assist. (b)(6); (b)(7)(C); (b)(7)(E (b)(6);)(b)(7)(C) Kennewick Police Officers (b)(6);)(b)(7)(C) conducted a traffic stop at at approximately 0950 hrs on the corner of Highway 395 and Hildebrand Avenue in Kennewick, Washington. Subject Kennewick, Subject was the Passenger of a 2014 Chevy Impala and was immediately (b)(6);)(b)(7)(C) identified by (b)(6);)(b)(7)(C) as the target target of the Task Force operation. (b)(6);)(b)(7)(C) (b)(6);) subject for identification and the subject asked subject subject handed him an id with the name of (b)(6);)(b)(7)(C) . (b)(6);)(b)(7)(C) requested me to go verify Subject's identity. I arrived on scene at approximately 1000 hrs along with (b)(6);)(b)(7)(C). I identified myself as an Immigration Officer asked the subject subject what what his true name was. Subject Subject stated his name is (b)(6);)(b)(7)(C) I identified subject as a the target of the operation and also subject of multiple prior removals. I advised Subject he was under arrest arrest and was taken into custody. Subject was transported to the Richland ERO office for processing.
  • On August 22, 2019, Okanogan County Sheriff’s Deputies called Border Patrol to the scene of a traffic stop near Tonasket, where they had pulled over a motorist for speeding and reported that neither the driver nor his passenger spoke Once present, Border Patrol initiated questioning about immigration status and the passenger was taken into federal custody.ENCOUNTER/ARREST: On 8/22/2019, at approximately 0600 hours Border Patrol Agent (BPA) (b)(6); (b)(7)(C) and Canine (b)(6); (b)(7)(C) were called out to assist an Okanogan County Sheriff's Deputy on a traffic stop in Tonasket, Washington. BPA (b)(6); (b)(7)(C) arrived on location approximately 15 minutes later and spoke with Deputy (b)(6); (b)(7)(C) who told BPA (b)(6); (b)(7)(C) that the vehicle was traveling in excess of 80 mph in a 60 mph zone, had out of state plates and neither subject spoke English. The stopped vehicle was a white Ford Explorer with California plate number (b)(6); (b)(7)(C) There were two occupants in the vehicle were identified as, (b)(6); (b)(7)(C) (DOB: (b)(6); (b)(7)(C) ) and (b)(6); (b)(7)(C) (DOB: (b)(6); (b)(7)(C) ). (b)(6); (b)(7)(C) , the driver of the vehicle, had no driver's license or identification whatsoever and was going to be cited for no valid operating license and speeding. Okanogan County Deputy (b)(6); (b)(7)(C) had both subjects separated when BPA (b)(6); (b)(7)(C) arrived. BPA (b)(6); (b)(7)(C) spoke to (b)(6); (b)(7)(C) first, who told me that he was coming from Omak and headed to work in a pear Orchard in Ellisforde, WA. (b)(6); (b)(7)(C) also stated that he was born in Guatemala and that the vehicle belonged to (b)(6); (b)(7)(C) . (b)(6); (b)(7)(C) told me that she was coming from Malott, WA. That she was born in Mexico, headed to work and that the vehicle belonged to her daughter. Both subject were questioned by BPA (b)(6); (b)(7)(C) if they possessed immigration documentation to work or be present in the United States legally. Both subjects stated that they were in the United States illegally and had never possessed proper documentation to work, remain or travel in the United States legally. BPA (b)(6); (b)(7)(C) asked both subjects if there was anything illegal in the vehicle such as drugs or weapons, both subjects stated no. BPA (b)(6); (b)(7)(C) obtained consent to search the vehicle with his assigned canine around the outside of the vehicle. Canine (b)(6); (b)(7)(C) did not alert to the exterior of the vehicle. (b)(6); (b)(7)(C) called a friend to come and retrieve the vehicle so it wouldn't have to be towed or obstruct the highway. Both subjects were transported to the Oroville Border Patrol Station for further processing. Subject was issued a WA/NTA and will be held in the custody of the Department of Homeland Security pending removal proceedings.
  • On January 22, 2020, Grant County deputies participated in a traffic stop which resulted in the arrest of an undocumented resident of Quincy, WA. The I-213 document for the case indicates that an ICE officer saw the man leave his home at approximately 7:40 am and that three blocks away, the ICE officer and two Grant County deputies carried out a traffic stop which resulted in his arrest on administrative, not criminal, charges.[31]Record of Deportable/Excludable Alien: (b)(6), (b)(7)(C) On 01/22/2020 at about 07:40 ICE Office (b)(6) at about ,(b)(7)(C) saw the Subject leave his home at at (b)(6), (b)(7)(C)Quincy, Washington. Officer (b)(6), (b)(7)(C) Grant Grant County Deputy (b)(6), (b)(6), (b)(7)(C) (b)(7)(C) and Deputy (b)(6), (b)(7)(C) conducted a vehicle stop three blocks away from the home. The Subject was identified as the pasenger in the car and was arrested by Officer (b)(6), (b)(7)(C) without without incident.

But traffic stops are not the only ways that everyday policing activities continue to blur into opportunities for immigration enforcement. UWCHR research has also surfaced an abundance of post-KWW emails in which local law enforcement officers shared non-public information about specific individuals with federal agents, ranging from information gathered during encounters with law enforcement, as described in detail below, to more specific intelligence leading directly to arrests.

For example, on September 10, 2019, ICE records provided to UWCHR show that a Kennewick Police detective advised ICE that a specific person was at a meeting in Richland; ICE deportation officers then arrived on the scene to arrest him on administrative charges of overstaying his visa. Under KWW, overstaying a visa—a civil offense—is “not a matter for police action,”[32] and the sharing of information in such cases is unlawful.[33]

The sharing of information is explicitly prohibited under KWW in non-criminal cases, unless required by a judicial warrant.[34] And while in some cases it is not clear from correspondence reviewed by UWCHR whether a judicial warrant was presented, in others it is quite clear that it was not. For example, in June 2019, Border Patrol Agent Shannon Clift wrote to three employees of the Grant County Sheriff’s Department, “Now that I oversee the Spokane Station, I was wondering if you guys have any information on the two individuals on the target sheets attached. We will be looking to collect as much information on these guys so we can scoop them up. If you have another place I can send this type of information so it gets further dissemination, please let me know. If you want to disseminate these sheets to others so we can gain information, please do so. All we are looking for at this time is just information.” The attached sheets are clearly marked “No active wants/warrants — seeking information only.” No response to Agent Clift’s inquiry was included in records released to UWCHR.

Mandated changes: jails and prisons

Jails and prisons across Washington have historically served as key sites where, under federal initiatives like Secure Communities and the Criminal Alien Program, ICE and CBP have sought to access information and individuals for immigration enforcement actions. In these settings, collaboration has taken several forms, four of which are detailed below.

1. Investigative information-sharing

Pre-KWW

Like police and sheriffs, employees of Washington jails have frequently offered active assistance in ICE/CBP investigations by providing names, dates and/or places of birth, photographs, and other identifying information about individuals—sometimes in response to specific inquiries from ICE/CBP, and sometimes proactively at their own initiative. For example, in February 2019, apparently unprompted, a Franklin County Sheriff deputy sent the booking information, including name, photo, and identifying information of a man who had been booked into jail for operating a motor vehicle without a license to ICE Deportation Officer Shawn Powell. Powell responded, “We can let this guy walk,” noting the man’s address in Pasco and alerting a colleague to continue “tracking” him.

Local jails have also facilitated the investigative work of federal immigration enforcement through less active forms of information-sharing. For example, many jurisdictions publish online jail rosters, which ICE/CBP can review to see if anyone in city or county custody is suspected of immigration violations. In addition, some jurisdictions maintain databases containing non-public information about people held in jails; as discussed at the conclusion of this report, when ICE/CBP have access to such systems, information gathered by local law enforcement is placed at federal agents’ disposition without their having to directly request it. For example, in 2019 the King County Auditor’s Office discovered that ICE officers regularly accessed the law enforcement version of the county’s Jail Inmate Lookup System (JILS) despite county policies prohibiting the sharing of non-public information for purposes of civil immigration enforcement.[35]

Under KWW, state agencies, including jails, are prohibited from sharing non-public information to assist in federal immigration enforcement, except where required by law.[36] Federal law prohibits states from banning local law enforcement from sharing information about citizenship or immigration status of an individual with federal immigration authorities[37]; KWW does not violate this federal law since it does not prohibit the sharing of this information, but rather the collection of it to begin with.[38] The sharing of all other forms of non-public information for purposes of civil immigration enforcement is also banned.[39] (Notably, under KWW the Washington Department of Corrections is exempted from these provisions.)

Post-KWW

Even after KWW’s passage, many counties, including Clark, Franklin, and Okanogan, continued to collect place of birth information from those booked into jail, and to share it with ICE/CBP, despite this being specifically prohibited by law. Clark County Jail and Franklin County Correctional Center also appeared to continue to collect some form of citizenship information. In several cases, this information-sharing was so institutionalized in the regular practices of local law enforcement that it took place on a daily basis, even after KWW became law. For example, in Franklin County, public records show that the Franklin County Sheriff’s Office sent ICE agents based in Richland an “Inmate Place of Birth Report” every weekday morning by fax. This practice was routinized to the degree that on October 31, 2019, a newly-appointed ICE Deportation officer contacted Franklin county officials requesting to be included on the “FCCC Daily Roster” and was told in response, “The daily roster is updated to the Franklin County website Monday—Friday, usually by 8 am. We also email an inmate place of birth report to the Richland office every morning, Monday—Friday.” After advocates raised concerns regarding this practice, Franklin County Corrections implemented a new policy restricting the collection of place of birth and citizenship information and adhering to other requirements of KWW.

Franklin County Correctional Center “Inmate Place of Birth” report sent via email to Richland ICE officers, dated October 31, 2019. Note “Immigration #” column indicating “USC [US Citizen]” for some inmates; and “Place of Birt[h]” column.

Franklin County Correctional Center “Inmate Place of Birth” report sent via email to Richland ICE officers, dated October 31, 2019. Note “Immigration #” column indicating “USC [US Citizen]” for some inmates; and “Place of Birt[h]” column.

In Clark County, even after KWW, UWCHR documented near-daily exchanges between ICE Deportation Officers Conrad Salvato, Jordan Vossler and Chatham McCutcheon, and Clark County Sheriff’s Office ID Specialist Nancy Druckenmiller from July to October 2019. According to a recent report by Troy Brynelson for Oregon Public Broadcasting, these exchanges continued during November 2020 through February 2021. In emails sent nearly every morning,[40] the ICE agents asked for the birthdates of a list of individuals whose names were apparently culled from the jail’s public roster.[41] Other staff from the Clark County Sheriff’s Office, including Specialist Colleen Williamson, also responded to regular requests for information from individuals’ files, providing dates of birth, booking photos, arrest narratives, and other non-public information without ever apparently reviewing a warrant.

Clark County officials also volunteered apparently unsolicited information to federal agents in violation of KWW.[42] On more than 20 occasions from May 2019 to at least February 2020, Corrections Deputy Paul Bond contacted ICE Deportation Officers in emails with the subject line “one to check.” These emails contained non-public information about individuals in custody who Bond apparently suspected to be non-citizens, in some cases because of birthplace and citizenship information that the jail was prohibited from collecting in the first place.[43] In response to three linked cases Bond brought up in June 2019, ICE officer Jordan Vossler responded, “We will monitor their cases, if convicted… I might be able to bring them into custody.” In another case, he answered, “Thanks Paul, he is a United States citizen now so we can’t do anything with his case.” In still a third, Vossler responded, “FYI these guys have holds on them already and I’m tracking their cases, but if you hear that they are trying to post bail let us know”.

Clark County Jail booking system screenshot sent via email to Portland ICE officers on June 27, 2019 . Note “Citizenship” field noting “NON US” citizenship status, and “Birth County” field.

Clark County Jail booking system screenshot sent via email to Portland ICE officers on June 27, 2019 . Note “Citizenship” field noting “NON US” citizenship status, and “Birth County” field.

In Okanogan County, Undersheriff Culp told UWCHR researchers in an interview that by mid-October 2019, the county had ceased collecting place of birth information as part of the booking process;[44] however, ICE documents suggest the practice continued well after that time. For example, an I-213 dated January 17, 2020, describes an individual who “was arrested and booked into the Okanogan County Jail [on December 30, 2019] … During the booking process, subject listed his place of birth as Mexico.” An I-213 for a different individual encountered in Okanogan County Jail on March 13, 2020, uses identical language: “During the booking process [name redacted] listed his place of birth as Mexico.”

 ENCOUNTER/ARREST: 12/30/2019, (b)(6); (b)(7)(C) On 12/30/2019, (DOB: (b)(6); (b)(7) , , A# (b)(6); (b)(7)(C) was arrested and booked into the Okanogan County Jail. Subject was booked into(C) the Okanogan County Jail for violating a courtcourt protection order of Harassment/Threats to kill. During the booking process, process, subject subject listed his place of birth as Mexico. On 01/06/2020 while conducting routine jail checks Border Patrol Agent (b)(6); (b)(7)(C) discovered that that the subject (b)(6); subject was arrested for violating his protective order. BPA (b)(6); proceeded to run record checks on the subject. Record checks revealed that that the subject subject (b)(7)(C) had one prior immigration apprehensions and was released on an immigration bond issued by an immigration court. Prior I-213s are included in his file. On 01/17/2020, (b)(6); (b)(7)(C) 01/17/2020, SDDO (b)(6); (b)(7)(C) was notified and it it was decided thatthat that (b)(6), (b)(7)(C) that (b)(6), (b)(7)(C) was in violation of his immigration bond and it it will will be revoked at at the conclusion of his state jail time when he will be turned over to the custody of the United States Border Patrol.

(In communications with UWCHR, Undersheriff Culp maintained that despite CBP’s assertions, the agency cannot have obtained this information from Okanogan County Jail records: “The Okanogan County Jail ceased collecting place of birth information in October 2019 as stated. A review of the booking database for the time period referenced shows no places of birth collected on any individual, regardless of (apparent) nationality/ethnicity/etc… This is punctuated by the fact that since October of 2019, the place of birth, citizenship, and nationality data fields in the booking database were ‘hidden’, and are not accessible or visible to employees and therefore cannot be filled in or ‘shared’.”[45])

In Cowlitz County, too, UWCHR’s review of communications between officials at the county jail and ICE revealed frequent correspondence between ICE Deportation officers Vossler and Salvato and Officer Steve Caldwell well after KWW entered into force. In repeated emails in June, July, September, October, and November of 2019, ICE officials were given information about individuals’ court dates, home addresses, booking photos, and other details in the county jail’s possession. In October 2020, the Northwest Immigrant Rights Project, Columbia Legal Services, and ACLU-WA sent the county a letter expressing concern about these practices.

Lastly, some local law enforcement agencies participate in federal grant programs that require information-sharing in ways that violate the provisions of KWW. For example, Operation Stonegarden (OPSG) is a FEMA program that promotes cooperation among CBP/Border Patrol and local and state law enforcement agencies;[46] grant funds are provided on the condition that CBP will be given access to the information generated by local law enforcement agency purchases. In Okanogan County, funds from a Stonegarden grant were used to purchase and install license plate readers, and CBP was granted access to the information generated by these devices. As Okanogan Chief Deputy Laura Wright explained in a December 2019 email, “We actually signed up the [Border Patrol] on our system and they look at everything themselves. It was quite easy when we set up all the accounts. We made sure that Aaron forwarded us the people that need to review and add to the system.” CBP agents had inquired about Okanogan County’s setup because another law enforcement partner “on the west side of the state” was interested in arranging a similar form of information-sharing through a grant from Operation Stonegarden. Such arrangements arguably violate KWW’s provisions on information-sharing.[47] (In communications with UWCHR, Undersheriff Culp argued that the sharing of data from these license plate readers, which are used to search for stolen vehicles rather than to enforce immigration laws, does not violate KWW.[48])

2. Jailhouse interviews

Pre-KWW

As noted above, whether by accessing publicly-available rosters or obtaining information from collaborating officials, ICE/CBP have historically reviewed the names of individuals booked into jails and checked them against federal databases. ICE agents have also often sought to interview some of those detained in jail, either in person or by telephone. Some counties and cities have facilitated this process by allowing federal agents unrestricted access to anyone in their custody, or even offering ICE agents a workspace within the jail itself.[49]

This practice has raised a number of concerns among rights advocates, because unlike other branches of law enforcement, ICE/CBP are not required to provide Miranda warnings to those they seek to interview, and there are questions about how “voluntary” jailhouse interviews can be. Furthermore, for those detained, the distinction between a local deputy and a federal agent may be unclear when both operate in the same workspace, eroding confidence in local authorities when jails act as gateways to immigration enforcement.

For this reason, KWW prohibits jails and prisons from allowing federal immigration agents to interview detained people about “a non criminal matter” unless required by a federal court order, or authorized by interviewees themselves using a written consent form.[50]

Post-KWW

Across Washington, counties have chosen to implement KWW’s requirements governing federal interview access to those in their custody very differently. In Franklin County, Sheriff J.D. Raymond admitted to a reporter that the county still allows immigration authorities to interview people in its jail, saying, “We don’t obstruct, nor do we necessarily facilitate it… That’s between them and the inmate.”[51] This hands-off approach would seem to ignore KWW’s requirements: while the law does not demand that county officials “obstruct” the interview process, it does clearly impose the duty of verifying that agents are investigating a criminal matter, have a court order, or ensure that inmates sign a consent form, before allowing them to interview people in their custody.[52]

UWCHR sought to further investigate compliance with this provision by requesting copies of the consent forms required under KWW. In response, Adams County claimed that no such forms existed: “Though ICE and Border Patrol are permitted to do interviews in our facility, we do not maintain records for their agencies.”[53] This too raises questions about KWW compliance, since following the requirements should generate a record—either a signed consent form, or evidence that the person was interviewed about “a criminal matter.”

In at least one case, UWCHR’s review of documents shared suggested incompliance with the very procedures these forms were created to follow. For example, on March 13, 2020, Border Patrol Agent Drew Desjardins encountered a man “during routine jail check duties” in the Okanogan County Jail; ICE records show that “During the booking process [name redacted] listed his place of birth as Mexico.” (As noted above, KWW prohibits jails from obtaining place of birth information.)

ENCOUNTER/ARREST: On 03/13/2020, Patrol Agent Agent (SBPA) (b)(6),(b)(6); (b)(7)(C) (b)(7)(C) while conducting routine jail check duties, duties, encountered (b)(6), (b)(6); (b)(7)(C), (DOB: (b)(6), (b)(7)(C) (b)(6);(b)(7)(C)) (b)(7) ) at the Okanogan County Jail. (b)(6);(b)(7)(C) (b)(7)(C) was booked into the jail on the charge of Assault in the Fourth Degree. During the booking process, process, (b)(6), (b)(7)(C) listed his place of birth as Mexico. SBPA (b)(6), (b)(6) conducted records checks on the subject subject and discovered (b)(6); (b)(7)(C) had four prior Voluntary Returns to Mexico and there were no immigration documents on file allowing the (b)(6), (b)(7)(C) to enter or remain legally in the United States. SBPA (b)(6), (b)(7)(C) the conducted a telephonic interview of (b)(6), (b)(6); (b)(7)(C). SBPA (b)(6);(b)(7)(C) identified himself as a Border Patrol Agent and questioned (b)(6), (b)(7)(C) as to his citizenship. (b)(6);(b)(7)(C)freely admitted to being born in Mexico and and that that he not in possession of any immigration documents that is not that would allow him to enter or remain in the United States legally. Due to (b)(6) (b)(7)(C) prior immigration history, history, a Statement of Probable Cause and an I-203 Statement I-203 were faxed over to the Okanogan County Jail and placed into subject's jail file.

The man was then presented with Okanogan County’s interview consent form, which reads, in part, “Okanogan County Corrections has received a request from US Immigration and Customs Enforcement and/or US Border Patrol to interview you regarding your immigration or residency status here in the United States. According to Washington State law, RCW 10.93.160, this interview is voluntary. According to the law, you have the right to volunteer to be interviewed, the right to decline to be interviewed, or to only be interviewed with an Attorney present.” He checked the box indicating that he declined to participate in the interview. Yet despite the fact that he had declined consent, CBP records indicate that the agency interviewed him, and that on the basis of that conversation, they determined that he was deportable. (Undersheriff Culp disputes the accuracy of CBP records on this point, insisting in communications with UWCHR that “the Okanogan County Jail does not have a record of this interview taking place.”[54]) County records do show that CBP then faxed a Probable Cause Statement to the jail, asserting that the man was “currently in the United States illegally, in violation of 8 USC 1325 (Illegal Entry into the United States) which is a criminal violation (misdemeanor).” On the basis of this document, Okanogan County Sheriff notified CBP of his impending release from jail, and ICE then initiated removal proceedings in the case.

By contrast, King County sets the bar higher than the minimum standards in KWW and those in the AGO’s model policies. In response to UWCHR inquiries, the county jail responded that it “does not allow any access to inmates/detainees by immigration authorities without an order from a U.S. District Court Judge or Magistrate. This is true even if the inmate/detainee consents to an interview by immigration authorities. Due to not allowing any access to inmates/detainees, we do not have any interview consent forms, as any interviews that would have taken place would have had an accompanying Court Order.” This policy is also memorialized in a December 2019 directive, which reads in part, “The [King County Department of Adult and Juvenile Detention] will not not permit ICE, CBP or USCIS officers, agents or representatives access to inmates without a judicial criminal warrant.”

3. Detainers and notification requests

Pre-KWW

Historically, when federal immigration agencies have learned that an individual they aim to deport is in local or state custody, ICE/CBP have generated a document known as a detainer (or “immigration hold”) asking the jail to hold that individual after release for ICE/CBP for a period of up to 48 hours, not including weekends or holidays. Beginning under the second G. W. Bush administration and accelerating in the Obama years, detainers became the centerpiece of programs that sought to compel greater involvement of criminal justice institutions in federal immigration enforcement. According to data obtained by Syracuse University’s TRAC, the number of detainers issued in Washington peaked in 2010, but subsequently declined in the latter Obama years; although they again trended upward during the Trump administration, even Trump-era numbers totaled only about half the levels seen in 2010.[55]

At the same time, the mere fact that detainers were issued does not indicate how local authorities responded to them. In the 2014 ruling in Miranda-Olivares v. Clackamas County,[56] the federal district court found the jail’s post-release detention of Ms. Miranda Olivares pursuant to an ICE detainer unconstitutional and imposed monetary penalties on Clackamas County. This decision and others like it issued by various courts nationwide, found that once a local law enforcement agency loses the legal basis for detaining someone—whether because charges are dropped, bail has been posted, their sentence has been served, or for other reasons—maintaining that person in custody without a judicial warrant effectively violates the Fourth Amendment to the U.S. Constitution, because ICE’s/CBP’s detainer request does not constitute a judicial finding of probable cause that a crime has been committed. (This standard of requiring a judicial warrant based on judicial findings of probable cause is an important one, because ICE and CBP frequently issue administrative warrants, which are signed only by an ICE agent and are only in connection with suspected violation of civil, not criminal law violations. Under the Miranda-Olivares v. Clackamas County decision, ICE administrative warrants do not meet the Constitutional requirements for judicial review necessary to detain someone.)

As a result, even prior to KWW, some Washington counties had changed their detainer practices. In response to litigation brought by the Northwest Immigrant Rights Project and Columbia Legal Services on this point, for example, Yakima County agreed to pay damages and cease honoring detainers in February 2019.[57] And Okanogan County officials, after also being sued over their use of detainers,[58] told a reporter they began revising their own policies in response to Yakima’s experience.[59]

In part to accommodate growing Constitutional concerns, the specific action requested by ICE/CBP detainers has shifted over time. While earlier versions of the detainer form asked that jails hold people for up to 48 hours beyond the time they would otherwise be released, the form currently in use asks for the jail to notify ICE or CBP prior to releasing the detained person, thus facilitating their transfer into federal custody.

KWW prohibits local jails from holding people on detainers for federal immigration agents[60]—and it also prohibits them from notifying ICE/CBP about the date and time of their impending release in civil cases.[61] (Again, the state’s Department of Corrections is exempted from these requirements.)

Post-KWW

Despite KWW, detainers continued to be honored by jails in multiple jurisdictions across Washington, including Clark, Franklin, Grant, Okanogan, and Skagit counties.

In some cases, individuals apparently continue to be held beyond the time of their scheduled release. One example of this is Okanogan County, where after KWW, officials developed a new set of requirements to justify holding inmates 48 hours beyond their release date in order to cooperate with federal detainer requests. Undersheriff Culp told UWCHR in an interview that the jail under his command stopped accepting detainers in May 2019, but added, “if [ICE/CBP] want to assume custody of one of our inmates, we require a statement of probable cause for a crime.”[62] Upon receipt of a probable cause statement deemed satisfactory by Okanogan County’s standards,[63] the county then issues an official form to notify federal agents[64] that they have 48 hours from the inmate’s scheduled release to take the person into custody. The language on the form is explicit about the 48 hour hold: after listing the subject’s release date and time, the form states, “Inmates held for Border Patrol on Border Patrol PC [probable cause] statements only must be picked up within 48 hours of the above date and time by Border Patrol or they will be released.” While Okanogan County’s approach shows an attempt to implement new practices in response to KWW, inasmuch as the county’s pathway results in the detention of Washingtonians without a judicial finding of probable cause, it fails to comply with KWW and the Constitutional requirements as outlined in Miranda-Olivares v. Clackamas County.

In other counties, immigration holds were not sanctioned by official forms, but correspondence between jails and federal agents continued to make reference to the practice, suggesting it continued after KWW. For example, in June 2019, ICE officer Pontus Lundquist emailed a detainer to Officer Steve Caldwell at Cowlitz County Jail, to which Caldwell responded, “I have added a note to her file in the computer to have our staff contact you prior to any release. We can hold for up to two hours if you are able to pick up. I will try to keep an eye on this and update you when possible.”

In Grant County, similarly, on September 23, 2019, county officials sent an email to ICE Deportation Officer Jaimie Waite referencing a specific case, saying, “FYI he’s probably going to be released on our case, so if you want to hold him, you’ll have to contact our jail,” and providing the phone number. Written records do not indicate whether the phone call was made, but this suggests the practice of holding people past their lawful release was still occurring—despite specific instructions issued by Chief Deputy Joe Kriete on August 5 that unless ICE produces a federal warrant, “We will not hold a subject any longer than we normally do for a release process after an inmate has met the State’s obligation.”

In Cowlitz County, UWCHR found frequent instances of notification pursuant to federal detainers without a judicial warrant. For example, in a September 23, 2019 email, ICE agent Conrad Salvato wrote, “Attached is [a] detainer… If you guys could call me when he’s going to be released, I’d appreciate it so I can try to make it in time to take custody.” Within ten minutes, Officer Caldwell from Cowlitz County Jail responded, “I have a note in our system to call you before release/transfer. I’ll try to send an email this afternoon after his appearance to update his next court date and bail status.” The repeated mention of notes in the “system” instructing other staff to notify ICE suggests not just individual agents, but the institution as a whole, collaborated in the circumvention of KWW’s legal requirements.

Clark County appears to follow a similar pattern. UWCHR received a 2014 directive from the Clark County Sheriff stating that, pursuant to Miranda-Olivares v. Clackamas County, the county jail no longer holds people on detainers unless they are accompanied by a judicial warrant or a judicial affidavit of probable cause. While records released to UWCHR do not show evidence of prolonged holds based on ICE detainers, county jail records from May 2020 show that ICE notification was such a routine practice that it was given five dedicated columns in the jail database, where the agency notified, date/time and method of notification, and “notification PSN” are all registered. This example shows that notification often may be carried out through phone calls, rendering its frequency—and any safeguards implemented to ensure it only occurs in criminal matters, as required under KWW—difficult for independent researchers to document.

In Skagit County, similarly, although Lieutenant Deanna Randall-Secrest stated in an interview with UWCHR that, “it is against our policy to notify immigration authorities of any individual being in our custody,”[65] UWCHR’s review of public records from 2019 and 2020 surfaced repeated emails from five different Skagit County employees notifying ICE agents of release dates and times, and indicating a willingness to call ICE prior to a person’s release. In one case from August 2019, for example, an ICE agent based in Ferndale asked an employee of Skagit County’s Jail Alternatives Program, “Is it possible for you to give me a call and let me know when he’s there?” She responded, “Yes, I can call you. Is it your intention to pick him up after he leaves the office?” to which the ICE agent responded, “Yes, we traditionally would follow him away from the office and conduct a vehicle stop somewhere clear of your guys’ location. This is with the hope of creating as much distance as possible.” This appears to be an attempt to conceal evidence of county collaboration with ICE enforcement. While NWIRP, Columbia Legal Services, and the ACLU of Washington brought these to the county’s attention in letters sent in December 2020 and March 2021, to date the county maintains that their staff did not violate the law.

In Franklin County, on at least one occasion, records indicate that a detainer was placed in an inmate’s file: on April 6, 2020, Franklin County Corrections Deputy Joshua Yates responded to a detainer request from Richland ICE Deportation Officers, writing, “Received and attached to his file.” While the records do not indicate what action if any was taken pursuant to this detainer, previous research shows that the mere presence of a detainer in an inmate’s file can lead to unequal detention and justice outcomes. In communications with UWCHR, Franklin County states that it does not currently honor detainers.

4. Contracts for civil detention

Pre-KWW

Across Washington, local jails under contracts with the federal government have also served as key sites for the detention of immigrants. While the majority of immigration detainees have been held at the privately-owned and operated Northwest Detention Center (or Northwest ICE Processing Center) in Tacoma,[66] ICE reported in 2017[67] that it also had Intergovernmental Service Agreements (IGSAs) with 21 adult and three juvenile jails in the state of Washington.[68] Under these agreements, the federal government pays the locality operating a jail a per-day, per-person rate to house people suspected of immigration violations alongside those in local custody for other reasons. It is unknown how many people have been held under IGSAs in the state of Washington; some facilities have reportedly not received ICE detainees in many years although their contracts remain on the books, while others remain hubs through which those arrested throughout the state are transported to Tacoma.

Because ICE only has the authority to hold people for civil violations of immigration law—not for criminal offenses—those held under IGSA contracts with local jails are held in civil detention, though in facilities designed for criminal justice purposes. Advocates criticize this, like other forms of mass incarceration, as a punitive practice unnecessary to protect public safety, and lacking in due process and other Constitutional safeguards. For this reason, KWW mandates the sunsetting of all contracts with state or local jails for purposes of immigration detention by December 31, 2021.[69]

Post-KWW

As the mandated sunset date has yet to pass, it is premature to assess compliance across the board with this portion of the law. In some cases, however, jurisdictions have moved to terminate Intergovernmental Service Agreements before the required date.

In Yakima, for example, ICE detention appears to have ended shortly after the passage of KWW. In a letter dated June 13, 2019, Yakima County Corrections Director Ed Campbell informed ICE of the county’s intent to “fully comply” with provisions of KWW, including that “effective immediately, we will NO LONGER accept I-200, I-201, I-203, or I-247 forms for the detainment of aliens identified by ICE”.[70]

In February 2021, similarly, Cowlitz County chose to end its contract with ICE for the detention of juveniles.[71]

However, UWCHR is aware of one case in which a county has indicated it does not intend to sunset its Intergovernmental Service Agreement with CBP in December 2021. Okanogan County Undersheriff Culp explained in an interview and follow-up email correspondence that the County is currently finalizing a Memorandum of Understanding that will ensure these practices are KWW-compliant by restricting them to criminal, not civil, cases as substantiated by a statement of probable cause.[72]

Assessing KWW Compliance

Two years after KWW’s entry into force, Washington remains a patchwork of policies and practices with regards to local participation in immigration enforcement. Although UWCHR researchers continue to collect and analyze data, and we hope that ongoing efforts across the state will institute continual improvements, it is clear today that in many of the counties examined, law enforcement agencies continue to participate in a pipeline from policing to deportation in ways that are clearly prohibited under state law.

On the one hand, the changes envisioned under KWW are so sweeping that a bumpy path to implementation was perhaps predictable. Drafters of the legislation may have sought to forestall this challenge by having the AGO draft model policies that could be easily adopted by localities, but in practice, this effort has come up short. The tone and volume of the correspondence reviewed by UWCHR speaks to deep and durable preexisting relationships between local law enforcement and ICE/CBP, such that in many cases, local officers preferred to turn to ICE/CBP, rather than the Attorney General’s Office, for guidance on how to implement the law. The desire to avoid AGO guidance is likely magnified by the deep politicization of this issue, as one law enforcement leader mentioned in an interview. Whatever its cause, the consequence is clear: policies and practices remain deeply uneven across the state. If our state is to live up to the stated intention of its legislature in passing this law, new avenues to ensure its enforcement will need to be explored.

On the other hand, in some ways the unevenness of KWW implementation may also reflect confusion sown by the practices the legislation doesn’t stop—including some which deliberately promote inter-agency information sharing, and which may in fact represent more powerful ways in which local law enforcement activity funnels Washingtonians into detention and deportation than those explicitly banned under KWW. We discuss three such aspects below.

Distinctions between civil and criminal matters

First, KWW upholds a distinction between civil and criminal matters which is spurious in human rights terms. The clearest, but not the only, example of this is the carveout for the Washington Department of Corrections (DOC), which allows most means by which the DOC supports federal immigration enforcement to continue uncontested under KWW. As a result, the Department of Corrections continues to honor detainers by notifying ICE of upcoming releases; as a result a total of 131 people were moved from DOC to ICE custody from June 2019 through May 2020—an average of 11 per month[73]. The DOC has reportedly also denied people with ICE detainers access to work release, education, and other programs while in custody.[74] This means that some Washingtonians, because of their citizenship status, have a dramatically different experience while incarcerated, and that upon completing their sentence, they are then channeled into a second set of punishments—detention and deportation—in what is effectively a two-tiered system of justice. The National Immigrant Justice Center has referred to this practice as “double-punishment.”[75]

However, this is not the only way in which KWW provides less robust protections for the rights of immigrants who are criminalized. In criminal, but not civil, matters, KWW also permits jailhouse interviews without written consent, ICE/CBP notification pursuant to detainers, and the provision of non-publicly available personal information to federal agents. Yet the crimes in question often have nothing to do with public safety: 8 USC § 1325 and 8 USC § 1326, laws that stem from the eugenicist efforts of the 1920’s to limit the entry of nonwhite migrants,[76] define unauthorized entry and reentry as federal crimes.[77] Most recently, the need to investigate these “crimes” was invoked to justify policies separating children from their parents at the border as a legitimate law enforcement activity.[78]

Yet under KWW, ICE/CBP are permitted to invoke “investigations of criminal matters” to secure collaboration from local law enforcement. And because of the sweeping scope of 1325 and 1326, virtually all Washingtonians whom ICE/CBP suspect to be undocumented could arguably be investigated for such crimes: a recent report by the University of Chicago Law School, in collaboration with Mijente, Organized Communities Against Deportation, and Just Futures Law, explains, “As a result [of 1325 and 1326] ICE effectively has a mandate to investigate virtually any undocumented person as a ‘criminal suspect’ whom it might otherwise target for civil immigration enforcement, even if it does not ultimately charge that person with a crime.”[79]

Indeed, all ICE/CBP has to do is assert that a person is under investigation for 1325 or 1326 in order to secure vital collaboration from local law enforcement in many Washington counties. Hewing to a minimalist interpretation of their responsibilities under KWW, Grant and Okanogan counties only require ICE/CBP to provide a statement of probable cause; Benton County requires ICE to sign a “Criminal Investigation Declaration”.[80] Yet absent judicial review, there is nothing to ensure that ICE/CBP aren’t simply writing up such statements for anyone they believe to be undocumented, whether or not that individual is likely to be prosecuted.

While Washington state cannot legally ignore the federal criminalization of migration through 1325 and 1326, we can and should ensure that inasmuch as our local and state officials assist in the enforcement of such laws, they at least demand that federal agents secure a judicial warrant prior to proceeding. Otherwise, we allow the specter of immigrant “criminality” to justify loose due process protections, in ways that are ultimately unnecessary, since ICE/CBP can simply obtain a warrant in cases where action is necessary to protect public safety—just like other law enforcement agencies do.

Database interoperability

Second, KWW does not address local law enforcement’s regular inputting of information into interoperable databases to which federal agents have regular access. Some of these information systems, like the Washington State Patrol’s ACCESS,[81] are run by Washington agencies but provide federal immigration authorities apparently unfettered access. The ACCESS database provides a means to query multiple state and national information systems; while WSP claims that “ACCESS usage is limited to criminal justice purposes,”[82] it is not clear which, if any, precautions are in place to ensure that ICE and CBP users of this Washington state database do not query it in civil cases. Furthermore, the ACCESS Operations Manual includes a chapter titled “Immigration Violator File”; while it notes that “to comply with KWW, no criminal justice agency shall use or share ACCESS, or any information obtained through ACCESS, to support or engage in immigration enforcement activities,” it also specifically instructs local law enforcement agencies who run records checks on a person they encounter (say, upon conducting a traffic stop) to call ICE to “confirm the alien’s status.” At best, such instructions  muddy the waters by blurring distinctions between local law enforcement activities and federal immigration enforcement.[83]

In other cases, databases are run by federal agencies but receive information inputted by local law enforcement within Washington state. This was a key objective of ICE’s Secure Communities program, launched in 2008 and fully implemented in 2013.[84] The program involves an alphabet soup of databases, queries, and intelligence centers[85] across all 3,181 jurisdictions within 50 states, the District of Columbia, and five U.S. territories, but its basic objective is to establish a pipeline of information from local law enforcement agencies to DHS, via biometric information submitted to the Federal Bureau of Investigation’s Integrated Automated Fingerprint Identification System (IAFIS). Although ICE’s public posture in relation to the program has been modified under the Obama, Trump, and Biden administrations, ICE has explained that “biometric interoperability has remained constant since full implementation was achieved.”[86]

Under this system, for example, jails across Washington submit fingerprints of those detained through automated systems that feed into federal databases, triggering ICE/CBP agents to undertake the regular enforcement activities noted in this report. A typical arrest narrative on an ICE I-213 reads, “On 06/11/2019 subject [name and date of birth redacted] came to the attention of [Deportation Officer, name redacted] while performing Criminal Alien Program (CAP) duties and a detainer placed. An (IAR) fingerprint response was received from the Law Enforcement Support Center (LESC) that indicated the subject was incarcerated at the Snohomish County Jail at Everett, Washington.” The reference to an “(IAR) [Immigration Alien Response]” and the involvement of ICE’s Law Enforcement Support Center indicate that this individual was identified by ICE via the Secure Communities program. At least 59 additional post-KWW arrests in Washington state mention “Secure Communities”, “Immigration Alien Response”, or “(IAR)” in the I-213 narrative.

Record of Deportable/Excludable Alien: On 06/11/2019 subject (b)(6); (b)(7)(C)(b)(6); (b)(7)(C) , DOB (b)(6); (b)(7)(C) , came to the attention of DO (b)(6); (b)(7)(C) (b)(6); (b)(7)(C) , while performing Criminal Alien Program (CAP) duties and a detainer placed. An (IAR) fingerprint response was received from the Law Enforcement Support Center (LESC) that indicated the subject was incarcerated at the Snohomish County Jail at Everett, Washington. (b)(6); (b)(7)(C) was arrested by King County Sheriff on an out of county warrant Fail to Comply Driving While License Suspended 3rd Degree, Fail to Comply Ignition Interlock Violation and booked into King County Jail on 06/08/2019, detianer placed by DO (b)(6); (b)(7)(C). On 06/11/2019 (b)(6); (b)(7)(C) was transferred from the King County Jail to Snohomish County Jail. On 06/11/2019 Snohomish County Jail notified DHS/ICE/ERO (b)(6); (b)(7)(C) was ready for pickup. On 06/11/2019 (b)(6); (b)(7)(C) made contact with (b)(6); (b)(7)(C) (b)(6); (b)(7)(C) in the Snohomish county jail and placed him under arrest for entering the United States illegally. DO (b)(6); (b)(7)(C) transported to the Northwest Detention Center (NWDC) for administrative processing.

In some cases, the Pacific Northwest has pioneered new technology for this purpose. The Law Enforcement Information Exchange (LInX), for example, was created by the Naval Criminal Investigative Service (NCIS) as a means to permit “federal, state, county, tribal, and municipal law enforcement agencies [to] engage in information sharing on an unprecedented level”;[87] the Pacific Northwest’s node, LInX NW, was the first area where this was designed, under the sponsorship of then-U.S. Attorney for the Western District of Washington state,[88] John McKay. According to McKay, “NCIS provided the funding to develop the technology to permit the electronic sharing of law enforcement records, to include criminal incident data, traffic summons, computer assisted display (CAD) data, criminal arrest histories and other law enforcement records that are legally retained and shareable by and among these law enforcement agencies… The system must permit partners full access to the relevant documents. The system must provide a technical analytical capability to ‘connect the dots’, by linking all variables associated with a subject and instantly providing a composite picture for the investigator.”[89] ICE is among the agencies with access to LInX.[90]

Again, it is unclear whether any provisions are in place to ensure that non-public information obtained through the work of Washington state and local law enforcement agencies and inputted into the database is not then used by ICE for civil immigration enforcement. According to the rules governing LInX NW use published by one Washington law enforcement agency, “Each RPA [Regional Partner Agency] shall contribute information to LInX Northwest, once a connection is made, and agrees to permit the access, dissemination, and/or use of such information by every other partner agency in LInX Northwest.”[91] For this reason, the King County Sheriff’s Office briefly terminated LInX membership in 2019 over concerns that the system did not allow the county to limit the sharing of data with ICE as required under the county’s sanctuary law.[92]

Lastly, there are also privately-run databases such as the Jail Booking Reporting System, administered by the Washington Association of Sheriffs and Police Chiefs (WASPC) which describes it as “an instant, up-to-date database of booking and release records from all city and county jails in Washington State and the Washington Department of Corrections.”[93] ICE/CBP are not registered as users of the JBRS database. But according to JBRS’ Access Policy, “The Jail Booking Reporting System (JBRS) is the Washington State component of JusticeXchange, a nationwide information-sharing solution for criminal justice agencies. … JusticeXchange receives data from agencies via interfaces to records management systems. The data are stored at a central location to allow other participating agencies to perform searches. Agencies are allowed to add behavioral information for offenders housed in their facility, add persons of interest directly into the database, view ‘linked’ relationships among individuals using the same phone number, address, or other identifiers, and enter a ‘watch’ notification on an offender.”[94] JusticeXchange is run by the private company Appriss; prior reporting[95] has documented JusticeXChange as being used by ICE for civil immigration enforcement in Washington state.

So, despite KWW, although ICE/CBP are not registered users of JBRS, through the database’s connection to JusticeXchange, ICE/CBP can access data from local jails across Washington in real time. The available information appears to include offenders’ home addresses, nicknames, “behavioral reports,” data linking them to networks of other individuals, and other non-public information; users can even set up “watch” alerts on specific individuals so that anytime any information is inputted about that individual by another user, the system generates an email notification.[96] In this way, while KWW prohibits local law enforcement agencies from sharing intelligence information gathered through their work in Washington for civil immigration enforcement, much of the same information may be accessed by federal immigration agents through interlinked databases without even asking local law enforcement.

KWW offers no guidance to local law enforcement on the appropriateness of sharing information through these information systems known to be used in immigration enforcement.

Task forces and joint operations

Third, KWW does not address the existence of inter-agency task forces and joint operations, created with the explicit purpose of fostering collaboration and information-sharing between law enforcement agencies at the local, state, and federal levels.[97] Many of the documents reviewed by UWCHR reference task force collaborations. For example, a April 30, 2019 arrest in Spokane took place when a Border Patrol Agent who “was performing his assigned duties as a Task Force Officer with the Spokane Regional Safe Streets Task Force,” came to the site of a traffic stop initiated by Spokane Police “to assist,” according to ICE documents; once on the scene, he determined that the driver was undocumented. Although the Spokane Regional Safe Streets Task Force was created to dismantle violent gangs and “mid- to upper-level drug trafficking organizations operating in the Spokane County area,”[98] there is no indication in the record that this man had committed an infraction of any sort, much less was involved with high-level organized crime. Yet the collaboration between local and federal agencies resulted in his detention on civil grounds.

On Tuesday, April 30, Border Patrol Agent Intelligence (b)(6), (b)(7)(C) was performing his assigned duties as a Task Force Officer with the Spokane Regiona Safe Streets Task Force (SSTF) in Spokane, Washington. At approximately 3:30 p.m., Spokane Police Officers conducted a vehicle stop of a red Hummer displaying a temporary paper registration, near the intersection of Indiana and Washington in Spokane. (b)(6);)(b)(7)(C) responded to assist. The driver and sole occupant of the Hummer provided a California driver's license identifying him as (b)(6);)(b)(7)(C) During a non-custodial interview, Mill stated that he had recently traveled from Compton, CA, to Spokane to look into business opportunities, with a plan of moving there in the future. (b)(6), (b)(7)(C) stated he had driven a rental vehicle to Spokane, but had just bought the Hummer earlier that day for approximately $10,000, and had put $5000 in cash as a down payment. (b)(6), (b)(7)(C) had over $500 in his pocket. said there was an additional $7000 in the Hummer that was his personal savings that he had brought with him because he was looking for a place to live. (b)(6), (b)(7)(C) also had a room key for the Marriott Courtyard motel in Spokane, WA, marked with a room number, in his pocket. (b)(6), (b)(7)(C) told officers he had checked out of the Marriott Courtyard earlier that day. (b)(6), (b)(7)(C) questioned (b)(6), (b)(7)(C) concerning his citizenship and nationality. (b)(6);)(b)(7)(C) stated that he grew up in Compton, California, but he was born in Zacatecas, Mexico, and had been brought to the United States as a small child. (b)(6), (b)(7)(C) said he thought at one point he had applied for DACA status, but was not sure and could not remember any details. (b)(6), (b)(7)(C) was not in possession of any legal immigration document that would allow him to remain in the United States. (b)(6);)(b)(7)(C) queried through (b) (7)(E) Dispatch informed (b)(6), (b)(7)(C) that (b)(6), (b)(7)(C) had no criminal or immigration history, and had no record of being issued any US immigration document. At approximately 3:45 p.m., (b)(6);)(b)(7)(C) placed (b)(6), (b)(7)(C) under arrest for being illegally present in the United States.

While the aforementioned incident occurred before KWW, similar cases continued after the law’s passage. For example, on August 9, 2019 in Franklin County, ICE documents show that a Border Patrol agent participating in a task force, the name of which was redacted, requested and obtained the assistance of three Franklin County Sheriff’s deputies to locate a target, whom they eventually detained. The man’s only prior arrest was for an immigration offense (illegal reentry). The same “targeted operation” also netted a man whose only previous infraction had been a traffic offense and who was now found to be a visa overstay. In communications with UWCHR, Franklin County Chief Civil Deputy Prosecutor Jennifer Johnson noted that, “Our understanding is that Task Force investigates criminal gang enterprises, such as drug smuggling and human trafficking…Based on our understanding of the Task Force it is our belief that we assisted a criminal investigation and apprehension of alleged criminal suspects.” This suggests that at least some task forces, while convened under the banner of public safety, engage in civil immigration enforcement, a task KWW removes from the purview of local law enforcement.[99]

Record of Deportable/Excludable Alien: On 08/09/2019, (b)(6); (b)(7)(C) (subject); DOB; (b)(6); (b)(7)(C) was encountered as the target of an (b) (7)(E) (b) (7)(E) Special Agent (b)(6); (b)(7)(C) identified the target of the operation in a white KIA Optima on Highway 395 North of Pasco. SA (b)(6); (b)(7)(C) followed the target vehicle to Highway 17 at Mesa, Washington and the vehicle abruptly turned into a residential housing area. 3 males exited the vehicle and the target (b)(6), (b)(7)(C) was identified. Task Force members approached the 3 subjects in an attempt to apprehend (b)(6); (b)(7)(C) Subject seen fleeing into a field. (b) (7)(E) I, Border Patrol Agent (b)(6); (b)(7)(C) and SA (b)(6); (b)(7)(C) transported the 2 other individuals in custod to Moses Lake Washington for detention. (b) (7)(E) (b)(6); (b)(7)(C); (b)(7)(E) TFO (b)(6); (b)(7)(C) relayed the information to SA (b)(6); (b)(7)(C) and I. We requested the help of 3 Franklin County Sheriff's deputies and walked the field in search of Subject. We encountered (b)(6); (b)(7)(C) (b)(6);(b)(7)(C) and I identified myself as a Border Patrol Agent. I then asked subject for identification and the subject handed me his ID. I asked subject where he was from and subject answered "Mexico." I asked subject if he had legal documents to be in the United States and subject stated he had a visa but it had expired. I advised Subject he was under arrest and was taken into custody. Subject was transported to Spokane County jail for detention.

While the Attorney General’s model policies suggest that law enforcement agencies not enter into task forces or joint operations with federal immigration enforcement without receiving a “legally binding assurances, in writing and pre-approved by [Law Enforcement Agency Sheriff or Chief of Police], that no [Law Enforcement Agency] resources, including any individuals’ personal information ascertained by [Law Enforcement Agency] or its personnel, shall be used to support or assist with civil immigration enforcement in any way,”[100] this is not legally required under KWW. Indeed, the language of the law itself makes no mention of task forces.

Conclusion

Overall, this research shows that Washington has come a long way in its effort to promote equal rights. One of the most heartening findings of this research is the degree to which public employees across our state are grappling with a complex new set of requirements, seeking support and guidance as they endeavor to adapt to changing circumstances. Undoubtedly, uniform adoption of KWW’s principles will take time, and we hope this investigation can contribute to the conversation as to how best to get there.

On the other hand, our findings also point to serious and systematic gaps in compliance across many Washington counties, in ways that underscore the fact that ongoing monitoring and enforcement is urgently necessary. Far from trivial correspondence, many of the behind-the-scenes conversations captured here reveal the systematic collaboration of local law enforcement in identifying, policing, and punishing Washingtonians for immigration violations, despite state laws specifically prohibiting such practices.

If we truly aim to ensure that noncitizen Washingtonians are treated equally by our state agencies, however, we must also question the limitations built into our existing laws, including KWW. The text of the law reads: “No state agency, including law enforcement, may use agency funds, facilities, property, equipment, or personnel to investigate, enforce, cooperate with, or assist in the investigation or enforcement of any federal registration or surveillance programs or any other laws, rules, or policies that target Washington residents solely on the basis of race, religion, immigration, or citizenship status, or national or ethnic origin.”[101] Yet our research not only reveals ways in which the letter of the law is being violated, but also shows pathways through which its spirit of promoting equality is undercut by practices it actually permits. Above, we comment on three significant gaps in the law. These merit further discussion and action by advocates, policymakers, and justice system professionals before we can confidently assert that all Washingtonians, regardless of national origin, are receiving equal treatment before the law.

 

Appendix I: WA state I-213 apprehensions per capita

WA State I-213 apprehensions per capita
2019-01-01 to 2020-04-02
Population estimates from ACS 5 year survey 2014-2018
County Total apprehensions Population Apprehensions per capita
Adams 63 19452 0.0032
Whatcom 540 216812 0.0025
Okanogan 82 41638 0.0020
Grant 137 94860 0.0014
Franklin 128 90660 0.0014
Grays Harbor 53 71967 0.0007
Mason 41 62627 0.0007
Pacific 9 21281 0.0004
Skagit 50 123907 0.0004
Ferry 3 7576 0.0004
Klickitat 8 21396 0.0004
Benton 72 194168 0.0004
Washington state total 2543 7294336 0.0003
King 708 2163257 0.0003
Chelan 22 75757 0.0003
Spokane 132 497875 0.0003
Lewis 20 76947 0.0003
Yakima 63 249325 0.0003
Clark 85 465384 0.0002
Walla Walla 10 60236 0.0002
Clallam 12 74487 0.0002
Snohomish 122 786620 0.0002
Pierce 117 859840 0.0001
Cowlitz 14 105112 0.0001
Whitman 6 48593 0.0001
Skamania 1 11620 0.0001
Kitsap 20 262475 0.0001
Stevens 3 44214 0.0001
Kittitas 3 44825 0.0001
Island 4 81636 0.0000
Douglas 2 41371 0.0000
Thurston 13 274684 0.0000
Asotin NA 22337 NA
Columbia NA 4001 NA
Garfield NA 2224 NA
Jefferson NA 30856 NA
Lincoln NA 10435 NA
Pend Oreille NA 13219 NA
San Juan NA 16473 NA
Wahkiakum NA 4189 NA

 

Notes

[1] The Keep Washington Working Act, Washington Senate Bill No. 5497 (2019), effected several changes to Washington law. The Act added new sections the Revised Code of Washington at RCW 43.17 (Administrative Departments and Agencies — General Provisions), RCW 43.330 (Department of Commerce), RCW 43.10 (Attorney General), and RCW 10.93 (Washington Mutual Aid Peace Officers Act). KWW repealed RCW 10.70.140 (Aliens committed — Notice to immigration authority.) and RCW 10.70.150 (Aliens committed — Copies of clerk’s records.).

[2] This term can be misleading: there is no single definition of what constitutes a “sanctuary” policy, and a great degree of variance exists among the policies adopted by cities, counties and states in the spirit of sanctuary. The term should never be understood as to mean true protection from immigration enforcement, since cities, counties, and states cannot legally prevent federal immigration authorities from enforcing federal law within their jurisdiction; but in general, “sanctuary” jurisdictions are those with rules that limit the extent to which local government authorities collaborate with federal officials to enforce immigration law.

[3] Session law for the Courts Open To All Act (HB 2567, 2020) available at: http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/House/2567-S.SL.pdf?q=20210628152454

[4] Session law for the Keep Washington Working Act (SB 5497, 2019) available at: http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/Senate/5497-S2.SL.pdf

[5] The UWCHR Immigrant Rights Observatory research team consists of Angelina Godoy and Phil Neff, supported by students Thomas Kaplan, Israel Martinez, Tara Saleh, and Yubing Tian, and faculty Rawan Arar, Katherine Beckett, Ricardo Gomez, Judith Howard, and Ron Krabill.

[6] We expect future publications to incorporate greater attention to COTA implementation.

[7] See, for example, Spokane County Sheriff Ozzie Knezovich’s statements as reported by Charles Creitz, “Washington ‘sanctuary’ law means Gov. Inslee should step down or be held in contempt, arrested, sheriff says”, Fox News, May 31, 2019. https://www.foxnews.com/politics/washington-sanctuary-law-means-gov-inslee-should-be-arrested-or-held-in-contempt-sheriff-says

[8] Interview of Okanogan County Undersheriff Aaron Culp by UWCHR Researcher Thomas Kaplan on October 23, 2020, by telephone.

[9] Under FOIA, UWCHR requested all I-213s produced by both CBP and ICE in the state of Washington from 2012-2017; when the agencies failed to adhere to the requirements of FOIA—first claiming privacy waivers were needed for every individual form and then claiming that as law enforcement agencies, they were exempt from providing such records—UWCHR sued in September 2018. UWCHR underwent separate settlement negotiations with each subagency. In these discussions, CBP agreed to provide a sample of all documents produced by staff in the agency’s Blaine and Spokane sectors from January 1, 2012 to September 30, 2017, and ICE agreed to provide copies of all documents produced from January 1, 2019 to March 31, 2020 by staff from the agency’s Seattle field office.

[10] As with all government documents, readers should not assume the facts contained in I-213s are always accurate; advocates have repeatedly called attention to misrepresentation in these documents (see especially John Washington, “Bad Information,” The Intercept, August 11, 2019: https://theintercept.com/2019/08/11/border-patrol-asylum-claim/) and we are aware of specific documents in our collection which appear to contain materially false claims about specific cases. However, given the paucity of public information about federal immigration enforcement, these records offer the best data from which to document patterns of ICE and CBP behavior.

[11] These were Adams, Benton, Chelan, Clark, Cowlitz, Franklin, Grant, King, Okanogan, Pierce, Skagit, Spokane, and Yakima counties.

[12] Using agency records to document KWW violations introduces limitations that are important to bear in mind. While some of the records discussed here indicate clear violations of KWW, others are merely suggestive. And, of course, anyone consciously intending to evade the law would have clear incentives to not record their actions. It may be that the most direct and egregious violations of KWW are not captured here, because such conduct took place or was arranged during telephonic or in-person interactions not reflected in records subject to request.

[13] Specifically, UWCHR researchers requested the following three types of data from each priority county: 1) Email communication between ICE/CBP/DHS officers and sheriff’s office employees; 2) Policies and manuals of guidelines for (a) interaction with federal immigration enforcement and (b) inquiries or collection of restricted information; and 3) Immigration enforcement interview consent forms between immigration enforcement and persons in custody of the local agency.

[14] To date, Adams, and Chelan counties have each not provided a response to at least one public records request submitted by UWCHR researchers during 2020. Adams County Sheriff’s Office has not produced a copy of its current policy manual in response to records requests submitted by UWCHR in both 2020 and 2021. Chelan County provided initial response to two 2020 public records requests, but to date has not disclosed relevant Chelan County Sheriff’s Office policies and has not followed through with delivery of installments of communications between CCSO and federal immimgration enforcement.

[15] While ICE publishes monthly data showing the number of civil arrests in each of the agency-defined “Areas of Responsibility,” (see the most recent fiscal year’s data here: https://www.ice.gov/doclib/news/library/reports/annual-report/ero-fy20-localstatistics.pdf), the Seattle AOR includes Washington, Oregon, and Alaska, so is of limited use in gauging the impact of local sanctuary policies. CBP’s published data (See, for example: https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Nationwide%20Apprehensions%20by%20Citizenship%20and%20Sector%20%28FY2007%20-%20FY%202019%29_1.pdf) is similarly limited, as the agency aggregates data at the “Sector” level; Washington state falls within both Blaine and Spokane sectors, which taken together also include Oregon, Idaho, and Montana. Syracuse University’s TRAC research center has produced some more geographically detailed arrest data (See TRAC Immigration, “Tracking Over 2 Million ICE Arrests: A First Look”, September 25, 2018, https://trac.syr.edu/immigration/reports/529/), but since ICE claims it does not record the state or county where apprehensions occur (despite city and state being commonly recorded on I-213 forms). TRAC researchers had to infer locations based on “apprehension landmarks”, also an imperfect method. (See TRAC Immigration, “About the Data – ICE Arrests”, https://trac.syr.edu/phptools/immigration/arrest/about_data.html.)

[16] Analysis by TRAC found that 47.2% of ICE arrests in Washington state from October 2014 to May 2018 took place via local jails, compared to a national average of approximately 37%. See UWCHR, “ICE Arrest Data Reveals Pathways to Deportation in Washington State”, November 27, 2018: https://jsis.washington.edu/humanrights/2018/11/27/trac-ice-data-wa-state/

[17] Washington State Office of the Attorney General Bob Ferguson, “Keep Washington Working Act: Guidance, Model Policies, and Training Recommendations for State and Local Law Enforcement Agencies”, May 2020: https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Home/Office_Initiatives/KWW/KWW%20LEA%20Model%20Guidance.pdf; See also RCW 43.10.315. https://app.leg.wa.gov/RCW/default.aspx?cite=43.10.315

[18] See KWW Section 5(4): “Any changes to agency policies required by this section must be made as expeditiously as possible, consistent with agency procedures. Final policies must be published.”

[19] See the Washington State Attorney General’s Office “Keep Washington Working Policies” webpage: https://www.atg.wa.gov/keep-washington-working-policies

[20] See Grant County Sheriff’s Office Policy 604 – Foreign Nationals and Diplomats; compared to Policy 502 – Inmate Booking Intake, both dated 2019-08-16.

[21] King County Auditor’s Office, “ICE Access to County Data Shows Privacy Program Gaps”, July 9, 2019: https://kingcounty.gov/~/media/depts/auditor/new-web-docs/2019/pii-2019/pii-2019.ashx?la=en

[22] Via a public records request, UWCHR requested notes or minutes regarding the November 2019 meeting, but did not receive any relevant records.

[23] Interview of Okanogan County Undersheriff Aaron Culp by UWCHR Researcher Thomas Kaplan on October 23, 2020, by telephone.

[24] The aforementioned email from Chief Deputy Joe Kriete of the Grant County Jail on October 5, 2019 reads, in part: “Because I.C.E. is another law enforcement agency they will be afforded the same as other law enforcement agencies when they are conducting criminal investigations. They will have the clearance to access our inmate files as well as release dates during the course of their criminal investigations,” and also notes that “If I.C.E. calls for our assistance while they make an arrest on a criminal investigation (either by P.C. or Federal Warrant) we can stand by as a second officer for safety reasons. We will not make the arrest since the I.C.E. agent is present to make their own arrest. We are there to only assist them in their arrest for the criminal investigation.” These details are not included in the county’s official policies.

[25] See RCW 43.10.315. https://app.leg.wa.gov/RCW/default.aspx?cite=43.10&full=true#43.10.310

[26] Gabriel Gomez Maciel v. Mylissa Coleman; City of Spokane, United States District Court Eastern District of Washington, Case 2:17-cv-00292, August 21, 2017: https://www.nwirp.org/uploads/2018/04/Gomez-Maciel-v.-Coleman-and-City-of-Spokane-Complaint.pdf

[27] RCW 10.93.160(2). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[28] Section 5 (1) of KWW as passed reads, in part “No state agency, including law enforcement, may use agency funds, facilities, property, equipment, or personnel to investigate, enforce, cooperate with, or assist in the investigation or enforcement of any federal registration or surveillance programs or any other laws, rules, or policies that target Washington residents solely on the basis of race, religion, immigration, or citizenship status, or national or ethnic origin.”

[29] Section 6 of KWW reads, “State and local law enforcement agencies may not: (a) Inquire into or collect information about an individual’s immigration or citizenship status, or place of birth unless there is a connection between such information and an investigation into a violation of state or local criminal law, or (b) Provide information pursuant to notification requests from federal immigration authorities for the purposes of civil immigration enforcement, except as required by law. (5) State and local law enforcement agencies may not provide non-publicly available personal information about an individual, including individuals subject to community custody pursuant to RCW 28 9.94A.701 and 9.94A.702, to federal immigration authorities in a noncriminal matter, except as required by state or federal law.” RCW 10.93.160(4). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[30] In other cases, local law enforcement shared information, including photographs, gleaned from traffic stops with federal agents who were not present. For example, on June 25, 2019, Grant County detective Jason Mitchell shared images that appear to be taken from a dashboard camera with CBP Agent David Steen.

[31] The presence of the county deputies at the traffic stop further suggests that they may have been involved in prior surveillance at the home.

[32] RCW 10.93.160(2). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[33] RCW 10.93.160(5). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[34] RCW 10.93.160(5). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[35] See King County Auditor’s Office, op. cit. It is unknown whether similar jail database access by ICE or CBP continues in other jurisdictions.

[36] RCW 10.93.160(4), (5). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[37] 8 U.S. Code § 1373 reads, “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” See https://www.law.cornell.edu/uscode/text/8/1373.

[38] Neither state nor federal law requires local or state agencies to collect this information.

[39] RCW 10.93.160(5). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[40] The daily information exchange was so regular that when Agents Salvato and Vossler were out of the office, Vossler asked Druckenmiller, “Can you help get Chatham the below DOB’s… He will be sending the DOB emails each morning until Conrad and I return.” (Email exchange dated August 15, 2019).

[41] It is not clear how ICE agents selected which individuals on the roster to inquire about. According to Troy Brynelson for OPB, “The vast majority of names ICE agents inquire about are of Latin American descent, but sometimes Asian or Eastern European”. See https://www.opb.org/article/2021/07/01/clark-county-jail-communications-with-ice-raise-legal-questions/

[42] RCW 10.93.160(5). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[43] For example, on June 9, 2019 Bond volunteered the name, date of birth, FBI number, and charges filed against an individual he noted was “born in Romania”; on June 11, 2019, he shared the name, date of birth, FBI #, FN # and changes against someone, noting he was “born in Mexico.”

[44] Interview of Okanogan County Undersheriff Aaron Culp by UWCHR Researcher Thomas Kaplan on October 23, 2020, by telephone.

[45] Email from Undersheriff Aaron Culp to UWCHR Director Angelina Godoy, August 2, 2021.

[46] FEMA describes Operation Stonegarden as “support[ing] enhanced cooperation and coordination among Customs and Border Protection (CBP), United States Border Patrol (USBP), and federal, state, local, tribal, and territorial law enforcement agencies to improve overall border security.” FEMA, “Preparedness Grants Manual | February 2021”, p. 7: https://www.fema.gov/sites/default/files/documents/FEMA_2021-Preparedness-Grants-Manual_02-19-2021.pdf

[47] While KWW’s Section 9 notes that, “If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state,” those activities can continue. However, that exemption does not apply to municipal and county officials.

[48] Email from Undersheriff Aaron Culp to UWCHR Director Angelina Godoy, August 2, 2021.

[49] See page 2-7 of the Immigration Resource Guide for judges, produced by the Washington State Supreme Court Gender and Justice Commission and Minority and Justice Commission in July 2013: https://www.courts.wa.gov/content/manuals/Immigration/ImmigrationResourceGuide.pdf

[50] Section 6 of KWW reads, in part “(6)(a) State and local law enforcement agencies may not give federal immigration authorities access to interview individuals about a noncriminal matter while they are in custody, except as required by state or federal law, a court order, or by (b) of this subsection. (b) Permission may be granted to a federal immigration authority to conduct an interview regarding federal immigration violations with a person who is in the custody of a state or local law enforcement agency if the person consents in writing to be interviewed. In order to obtain consent, agency staff shall provide the person with an oral explanation and a written consent form that explains the purpose of the interview, that the interview is voluntary, and that the person may decline to be interviewed or may choose to be interviewed only with the person’s attorney present. The form must state explicitly that the person will not be punished or suffer retaliation for declining to be interviewed. The form must be available at least in English and Spanish and explained orally to a person who is unable to read the form, using, when necessary, an interpreter from the district communications center ‘language line’ or other district resources.” RCW 10.93.160(6)(a) https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[51] Lilly Fowler, “Despite Washington state’s new sanctuary law, some local officials still cooperate with ICE and Border Patrol”, Crosscut, December 9, 2019: https://crosscut.com/2019/12/despite-washington-states-new-sanctuary-law-some-local-officials-still-cooperate-ice-and

[52] RCW 10.93.160(6). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[53] August 20, 2020 response to UWCHR public records request with Adams County agency case number 20-123, submitted August 12, 2020.

[54] Email from Undersheriff Aaron Culp to Angelina Godoy, August 2, 2021.

[55] TRAC Immigration, “Latest Data: Immigration and Customs Enforcement Detainers”: https://trac.syr.edu/phptools/immigration/detain/

[56] Maria Miranda-Olivares v. Clackamas County, United States District Court, District of Oregon, Portland Division, Case No. 3:12-cv-02317-ST, April 11, 2014: http://media.oregonlive.com/clackamascounty_impact/other/Miranda%20Olivares%20MSJ%20decision.140411.pdf

[57] Lilly Fowler, “Yakima jail will stop holding inmates for ICE”, Crosscut, February 7, 2019: https://crosscut.com/2019/02/yakima-jail-will-stop-holding-inmates-ice

[58] Maria del Rayo Mendoza Garcia v. Okanogan County, Office of the Okanogan Sheriff, and Tammi Denney, United States District Court Eastern District of Washington, Case No. 2:19-cv-340, October 9, 2019: https://nwirp.org/uploads/2019/10/Mendoza-Garcia-v-Okanogan-County-Complaint.pdf

[59] Lilly Fowler, “Despite Washington state’s new sanctuary law…” op. cit.: https://crosscut.com/2019/12/despite-washington-states-new-sanctuary-law-some-local-officials-still-cooperate-ice-and

[60] See KWW Section 6(8): “An individual must not be taken into custody, or held in custody, solely for the purposes of determining immigration status or based solely on a civil immigration warrant, or an immigration hold request.” RCW 10.93.160(8). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[61] See KWW Section 6(4)(b): “State and local law enforcement agencies may not: …(b) Provide information pursuant to notification requests from federal immigration authorities for the purposes of civil immigration enforcement, except as required by law.” RCW 10.93.160(4)(b).

https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[62] Interview of Okanogan County Undersheriff Aaron Culp by UWCHR Researcher Thomas Kaplan on October 23, 2020, by telephone. Undersheriff Culp later confirmed this point in a follow-up email to Thomas Kaplan, dated June 11, 2021. Records show that county officials shared a template instructing federal agents on the county’s required content and format.

[63] Most of the probable cause statements reviewed by UWCHR were not accompanied by judicial warrants, and claimed the agent was investigating a suspected violation of 8 USC 1325 (Illegal Entry), a criminal violation. However, in some cases, a review of ICE documents for the case in question revealed that the US Attorney’s office had already declined to prosecute the individual before the detainer was placed, suggesting that the remaining investigation was civil, not criminal, in nature.

[64] An example of the county’s Probable Cause and Border Patrol Hold/Notification of Release forms for this purpose can be seen here. Note in this case no judicial warrant is included: https://jsis.washington.edu/humanrights/wp-content/uploads/sites/22/2021/07/Okanogan_County_CBP_PC_Hold_Release_November-10-2020.pdf

[65] Interview of Skagit County Lieutenant Deanna Randall-Secrest by UWCHR Researcher Thomas Kaplan on November 23, 2020, by telephone.

[66] Separate legislation passed in 2021 mandates the closure of this facility as well; for more information, see Nina Shapiro, “Northwest detention center in Tacoma slated to close under bill passed by Legislature,” Seattle Times, March 31, 2021: https://www.seattletimes.com/seattle-news/politics/legislature-passes-bill-that-will-close-northwest-detention-center-in-tacoma/

[67] National Immigrant Justice Center, “ICE Detention Facilities As Of November 2017”: https://immigrantjustice.org/ice-detention-facilities-november-2017

[68] The listed facilities were: Aberdeen City Jail, Adams County Jail, Benton County Jail, Clark County Juvenile, Clark County Jail, Cowlitz County Jail, Cowlitz County Juvenile, Ferry County Jail, Forks City Jail, Franklin County Jail, Grant County Jail, King County Adult Jail, Kittitas County Jail, Martin Hall Juvenile, Mason County Jail, McNeil Island Corrections, Okanogan County Jail, Pend Oreille Correctional Facility, Regional Justice Center (Kent, WA), Spokane County Jail, Stevens County Jail, Sunnyside Jail, Thurston County Correctional Center, and Whitman County Jail.

[69] Section 6(12) of KWW reads as follows: “(12)(a) No state agency or local government or law enforcement officer may enter into an immigration detention agreement. All immigration detention agreements must be terminated no later than one hundred eighty days after the effective date of this section, except as provided in (b) of this subsection. (b) Any immigration detention agreement in effect prior to January 1, 2019, and under which a payment was made between July 1, 2017, and December 31, 2018, may remain in effect until the date of 9 completion or December 31, 2021, whichever is earlier.” RCW 10.93.160(12). https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[70] After June 12, 2019, automated “Immigration Reports” sent daily by email to ICE personnel listing people detained at the Yakima County Jail consistently reported 0 people detained; in February 2020, ICE personnel requested that they stop receiving this report.

[71] Esmy Jimenez, “1 of last youth jails in the country that holds undocumented youth to end contract with ICE”, OPB, February 9, 2021. https://www.opb.org/article/2021/02/10/cowlitz-county-youth-services-center-longview-washington/

[72] Interview October 23, 2020 with UWCHR researcher Thomas Kaplan.

[73] In a public records to WA DOC request dated October 14, 2020 (agency case number P-16243), UWCHR requested records of all DOC inmates released to ICE from January 1, 2012 – October 1, 2020; these figures were calculated from the resulting records.

[74] Bunthay Cheam, “Community Group Demands Governor Inslee End Cooperation with ICE,” South Seattle Emerald, June 22, 2021: https://southseattleemerald.com/2021/06/22/community-group-demands-govenor-inslee-end-cooperation-with-ice/

[75] National Immigrant Justice Center, “Decriminalize Immigration,” undated: https://immigrantjustice.org/issues/decriminalize-immigration

[76] For more on this history, see for example Ian MacDougall, “Behind the Criminal Immigration Law: Eugenics and White Supremacy,” ProPublica June 19, 2018 https://www.propublica.org/article/behind-the-criminal-immigration-law-eugenics-and-white-supremacy

[77] The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 defined both as federal crimes, and as of December 2018 they accounted for the majority of all prosecutions in federal court. For more on these crimes and why they’re controversial, see American Immigraiton Council, “Prosecuting People for Coming to the United States,” January 10, 2020: https://www.americanimmigrationcouncil.org/research/immigration-prosecutions

[78] CBP, “Zero Tolerance Immigration Prosecutions – Family Fact Sheet” https://www.cbp.gov/newsroom/zero-tolerance-immigration-prosecutions-family-fact-sheet

[79] Emphasis added. University of Chicago Law School, Mijente, Organized Communities Against Deportations, and Just Futures Law, “The Digital Deportation Machine: How Surveillance Technology Undermines Chicago’s Welcoming City Policy,” June 2021: https://www.flipsnack.com/JustFutures/the-digital-deportation-machine/full-view.html

[80] See this memo from Grant County Jail’s Chief Deputy Joe Kriete outlining new practices to be adopted in compliance with KWW. The memo mentions a probable cause statement as sufficient to justify supporting ICE in arrests of criminal suspects and notes that ICE “will have clearance to access our inmate files as well as release dates during the course of their criminal investigations” without specifying in the latter case how the county will ensure the investigation being conducted is criminal in nature.

[81] UWCHR researchers downloaded a spreadsheet from ACCESS’ website containing a list of authorized database users in 2020; this suggested that CBP had at least 73 unique access points to this database (all starting with WACBP) and ICE had at least 27 (all starting with WAICE).

[82] Washington State Patrol, “A Central Computerized Enforcement Service System (ACCESS)”, https://www.wsp.wa.gov/_secured/access/access.htm

[83] See Chapter 14-3 of the ACCESS Operations Manual, revised March 2021: “When an agency receives a record in response to an NCIC inquiry and 1) the whereabouts of the person inquired upon is known and 2) the person inquired upon appears to be identical with the subject of an ICE record, the agency must confirm the alien’s status with the ICE at (877) 999-5372. After confirmation, the ICE will provide direction regarding the arrest/detention of the subject.” http://www.wsp.wa.gov/_secured/access/docs/operations_manual/14_immigration_violator.pdf

[84] American Immigration Council, “Secure Communities: A Fact Sheet”, November 29, 2011: https://www.americanimmigrationcouncil.org/research/secure-communities-fact-sheet

[85] For a detailed description of this information pipeline near the time of its inception, see the Privacy Impact Assessments for ICE’s Alien Criminal Response Information Management System (ACRIMe), “an information system used by U.S. Immigration and Customs Enforcement (ICE) to support various law enforcement activities at the ICE Law Enforcement Support Center and other ICE locations. ACRIMe supports ICE’s handling of and response to immigration status inquiries made by other agencies regarding individuals arrested, subject to background checks, or otherwise encountered by those agencies. ACRIMe also supports the ICE Secure Communities Program, which provides a biometric-based means to identify criminal aliens for possible removal from the United States.” U.S. Department of Homeland Security, “Privacy Impact Assessment for Alien Criminal Response Information Management System (ACRIMe)”, April 22, 2010: https://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_ice_acrime.pdf; and U.S. DHS, “Privacy Impact Assessment Update for [ACRIMe]”, January 24, 2014: https://www.hsdl.org/?view&did=731369.

[86] This information is from the archived ICE Secure Communities website updated February 9, 2021 and accessed July 22, 2021: https://www.ice.gov/secure-communities; it is not clear whether it reflects the current state of database interoperability.

[87] NCIS, “LInX/D-Dex”, undated: https://www.ncis.navy.mil/Mission/Partnership-Initiatives/LInX-D-Dex/

[88] See Congressional testimony in: House Hearing, 110 Congress, “Building A Partnership Strategy: Improving Information Sharing With State And Local Law Enforcement And The Private Sector”, May 25, 2007: https://www.govinfo.gov/content/pkg/CHRG-110hhrg48917/html/CHRG-110hhrg48917.htm

[89] Ibid.

[90] Lewis Kamb, “Concerned about ICE access to police database, King County Sheriff’s Office stops using it”, Seattle Times, August 20, 2019: https://www.seattletimes.com/seattle-news/king-county-sheriffs-office-abruptly-halts-use-of-police-database-concerned-about-immigration-officials-access/

[91] Vancouver Police Department, “Vancouver PD Policy Manual – Policy 814 – LInX Northwest Program”, September 16, 2020: https://www.cityofvancouver.us/sites/default/files/fileattachments/police_vpd/page/38549/policy_814_vpd_policy_manual.pdf

[92] Lewis Kamb, “Concerned about ICE access…”, op. cit.

[93] Washington Association of Sheriffs & Police Chiefs, “Jail Booking and Reporting System (JBRS)” https://www.waspc.org/jail-booking-reporting-system-jbrs-

[94] Washington Association of Sheriffs & Police Chiefs, “Jail Booking Reporting System (JBRS) Access Policy”, updated August 2018: https://www.waspc.org/assets/JbrsSavin/jbrs%20access%20policy%2006.2015.pdf

[95] See McKenzie Funk “How ICE Picks Its Targets in the Surveillance Age”, The New York Times Magazine, October 2, 2019, https://www.nytimes.com/2019/10/02/magazine/ice-surveillance-deportation.html on immigration enforcement in Washington state, which mentions “a company called Appriss Safety, which runs the database JusticeXchange (now known as Justice Intelligence); the database includes, in spite of Inslee’s sanctuary order, bookings from all over Washington State.”

[96] Washington Association of Sheriffs & Police Chiefs “JBRS New Users Guide”, undated: https://www.waspc.org/assets/JbrsSavin/jbrs%20new%20users%20guide.pdf

[97] The model policies proposed by the AGO suggest that agencies adopt the following language as policy, which mentions task forces: “[Law Enforcement Agency] personnel shall not assist or participate in any joint operations, task forces, or any other activities that support or constitute immigration enforcement actions with any person engaged, or intending to engage, in immigration enforcement, including federal immigration authorities, without prior approval, in writing, from [Law Enforcement Agency Sheriff or Chief of Police or authorized designee].” (AGO KWW Model Guidance, op. cit. p. 12) Yet task forces are not mentioned in the text of the law itself.

[98] Spokane City Council, “Agenda Sheet for City Council Meeting,” November 18, 2019, p.1: https://static.spokanecity.org/documents/opendata/interlocal-agreements/opr-2019-0992.pdf.

[99] RCW 10.93.160(2): https://app.leg.wa.gov/RCW/default.aspx?cite=10.93.160

[100] See AGO, KWW LEA Model Guidance, G(3), op. cit., p. 16.

[101] See RCW 43.17.425(1). https://app.leg.wa.gov/RCW/default.aspx?cite=43.17.425