By Bill Elfo, Whatcom County Sheriff
Given local and national focus on immigration issues, there has been recent interest in the sheriff’s office’s policy in cooperating with federal law enforcement in turning people, classified by federal law as “criminal aliens,” to Department of Homeland Security (DHS) agents following their release from jail.
The term “criminal alien” is defined by United States Code 8 U.S.C. Section 1227 and generally includes “any alien” who is convicted of a serious criminal offense. The enforcement of immigration laws is the responsibility of various agencies within the United States DHS.
DHS agents regularly check Whatcom County Jail records to identify persons they suspect are “criminal aliens.” By law, these records are available for inspection by anyone.
Federal agents, not local law enforcement, are trained and have access to data banks needed to determine a person’s immigration status.
In order to facilitate a transfer of a “criminal alien” to federal custody once a person was released from the jail on state charges, DHS previously issued “detainer requests.” These requests asked the sheriff’s office to hold persons meeting federal criminal alien criteria for up to 24 hours past the time they were scheduled to be released from the county jail.
In April 2014, a federal court within our federal judicial circuit held that the practice of detaining persons without a warrant beyond the time of their scheduled release on state charges violated the Fourth Amendment to the United States Constitution. In this case, the Clackamas County, Oregon sheriff and Clackamas County were held liable for facilitating a detainer at the request of DHS.
Following the court decision, I consulted with our legal advisor at the prosecuting attorney’s office. It was concluded that continuing the practice of honoring detainers by holding persons beyond their scheduled release time would subject Whatcom County and our deputies to liability for civil rights violations. To ensure public safety and legal requirements, I consulted with the affected federal agencies. The sheriff’s office continues to detain persons at the request of federal authorities if the federal agency presents a warrant.
Federal authorities can also arrange to be at the jail at the time of the person’s scheduled release and take the person into custody as they prepare to leave the jail. With the number and availability of federal agents assigned to Whatcom County, this has not presented any logistical issues in our jurisdiction and requested transfers have taken place.
Federal agents and the sheriff’s office have overlapping jurisdiction on a wide range of criminal offenses that violate both state and federal law. Our officers work closely and collaboratively on these matters. Federal agents are assigned to the Whatcom County Gang and Drug Task Force and have been instrumental in disrupting criminal gangs, sophisticated criminal enterprises and habitual felons that deal in crimes and violence.
This cooperative relationship also facilitates coordination in suspected cases of human trafficking.
The sheriff’s office does not enforce federal immigration law. A decision of the Washington State Supreme Court held that it is illegal for local law enforcement to detain persons solely for suspected immigration violations. Effectiveness in preventing and investigating crime requires law enforcement to have cooperation from a variety of sources.
If the victims and witnesses will not come forward to provide information because their fear adverse immigration consequences, victimization will continue and less crimes will be prevented and solved.
Given this overriding concern and the number of federal agents assigned to Whatcom County who have responsibility for this function, it makes little sense to assign scarce local resources to this function.
With the presence of our international border and critical infrastructure as well as other vulnerabilities, it is essential that the sheriff’s office continue its outstanding relationship with our federal law enforcement partners. The professionals at the various federal law enforcement agencies within Whatcom County provide a high degree of support that helps keep our community safe.