By Christopher N. Lasch and Mark Fleming
On Thursday, a state trial court judge in Wasco County, Oregon (of Wild, Wild Country renown) will hear summary judgment arguments in Stovall, et. al. v. Northern Oregon Corrections dba NORCOR, No. 17-CV-31082 (Or. Cir. Ct.). At the heart of the lawsuit is a contract known as an “Intergovernmental Services Agreement” (IGSA) between NORCOR, a four-county public prison system, and the Immigration and Customs Enforcement (ICE) agency. Under the IGSA, NORCOR jails people for ICE who are in civil immigration proceedings. The question for the trial court is whether detaining migrants under the contract violates Oregon law.
A series of recent state-court decisions provides the context for Stovall, and shows the increasing importance of state law in challenges to non-federal participation in immigration enforcement. In the first of these decisions, Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017), the court addressed whether state law allows Massachusetts officers to detain, on the basis of an immigration detainer issued by federal officials, people who are otherwise entitled to their release. The court began by restating principles that had been clearly established through earlier detainer litigation, noting that the federal government cannot require local compliance with immigration detainers and that detainer-based detention amounts to a new arrest. The court then noted that for Massachusetts officers, the “authority to arrest is generally controlled by Massachusetts common law and statutes, which confer the power and also define the limits of that power,” ultimately holding that Massachusetts law provides no authority for civil immigration arrests. 78 N.E.3d at 1154, 1160.
[For more on Lunn, read crimmigration.com’s earlier analysis.]
In similar decisions in 2018, courts in Colorado, Minnesota, and New York (People ex rel. Wells on behalf of Susai Francis v. DeMarco, — N.Y.S. 3d –, 2018 WL 5931308 (N.Y. App. Div.)), held that their respective states’ laws do not authorize state and local officers to honor ICE detainers. The legal basis for these decisions—that state law determines the arrest authority of state officers—has implications beyond detainer-based detention. For example, so-called “287(g) agreements” (named for the subsection of the Immigration and Nationality Act authorizing them) that effectively deputize local officers to perform the functions of federal immigration officers may only grant such authority “to the extent consistent with State and local law.” And just as civil immigration arrests by local officers must find authority in state law, so must civil immigration detention be authorized under state law. An article by Professor Kate Evans, Detainers, Discretion, and State Law’s Historical Constraints (forthcoming in the Brooklyn Law Review) painstakingly surveys state laws to show that they generally do not provide authority for sheriffs to detain suspected civil immigration violators.
All of this brings us back to Stovall, in which the plaintiffs argue that Oregon law not only prohibits law enforcement to make the brief detention before ICE processes individuals into removal proceedings, but also prohibits law enforcement to serve as ICE’s jailer and detain individuals during their subsequent removal proceedings. This argument is strengthened by an important piece of Oregon legislative history. In 1987, the State of Oregon passed a first-of-its-kind state law expressly limiting state and local law enforcement participation in civil immigration enforcement and detention. O.R.S. 181A.820. The state statute limits law enforcement agencies from using “moneys, equipment, or personnel for the purpose of detecting or apprehending persons” for civil immigration violations. O.R.S. 181A.820(1). And the 1987 statute remains current: In November, a ballot initiative to repeal Oregon’s so-called “sanctuary” law was defeated soundly, with over 60 percent of voters supporting the law.
The statute proved prescient in forecasting the important role that the federal government might try to impose on state and local agencies. Over the past three decades, ICE and the former INS increasingly relied on local law enforcement to participate in immigration enforcement. In fiscal year 2018, ICE made 177,147 requests for continued detention for alleged civil immigration violations. Moreover, ICE has IGSA contracts, like the one with NORCOR, with over 190 local law enforcement agencies to rent detention space for individuals in immigration proceedings—over 44,000 individuals per day.
IGSA-based detention raises some of the same legal questions that have been litigated in state challenges to honoring detainers. Even if an IGSA authorized local law enforcement to perform the functions of an immigration officer, which multiple courts now have concluded it does not, NORCOR would still need detention authority derived from Oregon state law. Herein lies the Plaintiffs’ central claim in Stovall—that Oregon’s sanctuary law affirmatively forbids NORCOR’s detention under the contract. Without authorization somewhere else in Oregon law, detaining migrants is illegal.
 See, e.g., Sanchez Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1253 (E.D. Wa. 2017) (distinguishing IGSA from 287(g) agreement “regarding the performance of immigration-officer functions”); People ex rel. Wells on behalf of Susai Francis v. DeMarco, — N.Y.S. 3d –, 2018 WL 5931308, at * 10 (N.Y. App. Div.) (same); Tenorio-Serrano v. Driscoll, 324 F. Supp. 3d 1053, 1063 (D. Ariz. 2018) (noting IGSA confers no arrest authority).