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Judge rules NORCOR violated Oregon law

Court finds that NORCOR assisted ICE in a manner that violates ORS 181A.820; finds detention contract not prohibited

FOR IMMEDIATE RELEASE

February 8, 2019

CONTACTS:

Erin M. Pettigrew, Innovation Law Lab, erin@innovationlawlab.org, 971-612-0540

Victoria Bejarano Muirhead, Innovation Law Lab, victoria@innovationlawlab.org, 971-801-6047

The Dalles, Oregon – In a decision issued today, Judge John Wolf of Wasco County determined that two of Northern Oregon Regional Corrections’ (NORCOR) immigration enforcement practices are illegal under Oregon’s disentanglement law, ORS 181A.820, often referred to as Oregon’s sanctuary statute and the first law of its kind in the nation.

First, the court took issue with NORCOR’s practices of notifying Immigration and Customs Enforcement (ICE) when a person is scheduled to be released from the local jail. The court determined that “[t]he record in this case establishes no purpose for the release notifications except for the purpose of detecting and apprehending persons in the United States in violation of federal immigration laws.”

The court went on to conclude that the jail’s allegedly discontinued practice of holding individuals beyond their release date for ICE is likewise illegal under state law. The court reasoned, “re-seizure or subsequent seizure occurs when an inmate remains in jail after the original basis for incarceration ceases to exist.” Therefore, NORCOR must release the individual as required under state law, and to do otherwise violates ORS 181A.820, said Judge Wolf.  

The trial court held, however, that NORCOR’s contract with ICE to “accept and provide for secure custody” of persons detained for federal immigration enforcement does not violate ORS 181A.820, nor does its policy of notifying ICE of the presence of a foreign-born person upon booking on state or local charges. With respect to the contract, the court determined that the term “apprehend” in the statute “is not commonly understood to mean holding someone in jail or prison.” The court went on to conclude that notifying ICE of the presence of foreign-born persons in the jail did not violate Oregon law because those persons may have violated other state laws and because there is an exception to the statute for exchanges of information to verify immigration status.

Though NORCOR argued the Plaintiffs lacked standing, the trial court disagreed, ruling that the Plaintiffs had standing to bring suit because they had shown negative tax consequences as a result of NORCOR’s relationships with ICE.

“We are pleased with the Court’s decision that NORCOR is violating Oregon law in some respects, but disappointed by the court’s decision with respect to the ICE contract,” said Erin M. Pettigrew of Innovation Law Lab, one of the attorneys representing the Plaintiffs. “As Judge Wolf observed at the hearing, it is likely that some or all of his rulings will be appealed, as they involve issues of broad importance to Oregonians.”

Read the decision here.

Detainer Litigation and Discovery: ICE Records Discoverable

Innovation Law Lab, together with attorneys from Oregon Law Center, recently obtained a victory for the taxpayers in Wasco County who seek to an end of the ICE contract and other immigration enforcement activity prohibited by state law in their four-county jail. The jail, NORCOR, objected for months to delivering records demonstrating local law enforcement assistance with federal immigration enforcement. Citing 8 C.F.R. § 236.6, NORCOR made a blanket refusal to turn over documents, sought to claw back those it had already turned over, and refused to answer questions in depositions about the material.

The regulation, 8 C.F.R. § 236.6, prohibits public disclosure of the names and other identifying information of individuals held in detention by ICE. Plaintiffs contend that there is a significant difference between public disclosure, such a FOIA request or similar public records request, and documents sought in a lawsuit. The Wasco County Court agreed and ordered NORCOR to produce the documents, concluding “[t[hat regulation does not apply to requests for discovery in litigation.”

The Court also confirmed that where a local law enforcement agency or other party holds documents sent to it by a government agency, the Touhy regulations do not apply.  The Court reasoned that because NORCOR “is not a federal agency or a current or former federal employee,” the Plaintiffs may obtain documents directly from NORCOR.

Innovation Law Lab applauds our clients in demanding transparency and accountability at NORCOR, and hopes this ruling assists other jurisdictions in understanding the correct scope of 8 C.F.R. § 236.6.

A copy of the ruling can be found here.

NORCOR case moves forward

On Wednesday, July 11, Innovation Law Lab and the Oregon Law Center secured a victory in their ongoing case against the Northern Oregon Regional Correctional Facility (NORCOR), signaling progress in a larger suit which seeks to end the detainment of immigrants in the Oregon facility.

“Today Plaintiffs in the case against NORCOR secured a victory in their progress toward a Court ruling on NORCOR’s violations of ORS 181A.820,” said Erin Pettigrew, Rights Attorney at the Innovation Law Lab. “The Court affirmed Plaintiffs’ right to seek information about the individuals that NORCOR detects and apprehends and how they are treated in the jail, while denying NORCOR’s attempt to stall complete resolution of the case.”

Specifically, Plaintiffs won a motion to compel NORCOR to disclose certain documents pertaining to the individuals detained at the facility. While NORCOR argued that a federal regulation prevented the public disclosure of information of this kind, the court agreed with Plaintiffs that the regulation applied to public records requests and other public disclosures, not litigation requests for discovery. However, acknowledging privacy concerns, Plaintiffs did propose a protective order that would prevent public disclosure of personally identifying information, which the Court approved.

The Court also denied NORCOR’s motion to bifrucate the case. NORCOR sought Court approval to answer first whether they indeed “detect or apprehend” immigrants and then, later, engage in discovery and fact finding on the fiscal impact of that activity. The Court denied the motion, asking whether there was any equipment that did not belong to NORCOR that was used in their facility. Unable to answer to the contrary, the Court denied NORCOR’s motion and the case will proceed on all issues.

This victory signals progress in the larger effort to end the relationship between NORCOR and ICE and meaningfully affirm Oregon’s status as a sanctuary state.

In attendance at the hearing were members of Interfaith Movement for Immigrant Justice (IMIrJ), Rural Organizing Project (ROP), and Gorge ICE Resistance. Plaintiffs Stovall, Olmstead and Krummrich are represented by Erin M. Pettigrew and Stephen Manning, Innovation Law Lab; Plaintiff Brown is represented by Stephen Walters and David Henretty, Oregon Law Center.

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