Judge finds ICE violates order in whisking detainee into Washington

A federal judge Friday, Oct. 23, said the way U.S. Immigration and Customs Enforcement moves Oregon detainees to Washington is “incredibly troubling.”

In a court hearing, U.S. District Judge Mustafa Kasubhai cited concerns about speed of transport and a “lack of humanity” in providing for basic needs of detainees.

“Expecting they can just pull off on the side of the road and urinate in public on the side of the road is deplorable,” Kasubhai said after hearing testimony from an ICE officer who has driven detainees to Washington, where there’s a large ICE detention center in Tacoma.

The driver said he has been instructed to pull over roadside where there’s a “nonpublic view” for detainees needing to urinate if they are confined in leg chains.

ICE is “doing everything they can to beat the clock” before Oregon judicial orders take effect.

If a detainee files what’s known as a habeas petition challenging the lawfulness of detention, Oregon judges for months have almost immediately been issuing “status quo” orders.

Because there are no overnight ICE facilities in Oregon, if a detainee has not yet been transported out of state, a status quo order typically means the person is released by ICE, pending a decision by an Oregon judge on the legal challenge. That may take weeks or months.

Most people detained by ICE in Oregon do not file habeas petitions, however, according to ProPublica data on habeas petitions and Deportation Data Project information on ICE arrests.

Another Oregon federal judge, Michael McShane, in July also spoke of ICE racing detainees to the Washington border before a habeas petition can be filed and status quo order issued. Advocates for detainees have accused ICE of deliberately doing so to separate attorneys from their clients.

In the Friday court hearing, Kasubhai ordered the immediate release of a man detained by ICE officers Oct. 17 in Madras, about 120 miles southeast of Portland. The judge found ICE violated a status quo order issued the same day.

Federal attorneys argued the ICE driver crossed into Washington at 12:55 p.m., Oct. 17, after the 12:48 p.m. filing of a petition challenging the man’s detention but two minutes before the judge’s “status quo” order, according to court documents.

A court filing from federal attorneys included a screenshot from a Google Maps application they said showed the driver’s vehicle in Washington at 12:55 p.m.

Kasubhai said the screenshot lacked a date. Testimony from the ICE officer who drove the detainee from Madras to Washington was “unreliable,” Kasubhai said, criticizing the driver’s inability to remember details when asked about the trip.

“The evidence that the government offers that they crossed the border exactly two minutes before notice of my status quo order is laughable,” Kasubhai said.

No ruling has yet been made about whether ICE acted lawfully in detaining the man in Madras. He was identified in court only by the initials “VSA.”

Two minutes make a big difference 

Detainees can still challenge the lawfulness of their detention if they are being held in ICE’s Tacoma detention facility, but it poses hardship, Lorena Reynolds, the attorney representing VSA, said in an interview.

“The courts in Oregon are moving quickly on these cases,” Reynolds said. 

In Washington, “because they have such a huge facility with so many people being detained, it takes longer, and while those cases are moving through the system, people are being detained, and they’re having to wait for that due process,” Reynolds said.

Stephen Manning, executive director of the Portland-based Innovation Law Lab criticized ICE transports in a July statement to Lookout Eugene-Springfield.

“Rapidly moving Oregonians out of state is a deliberate tactic by ICE to take away due process rights and separate attorneys from their clients,” Manning said in July.

Asked whether speedy transport is a “deliberate tactic,” a DHS spokesperson in July told Lookout Eugene-Springfield: “Once an alien is transferred to ICE custody, the agency makes a custody determination based on bed space and ensures their presence for immigration proceedings or removal from the United States.”

In a July court hearing, McShane, another Oregon federal judge, said: “It is a race to the border to get these folks into Washington before a petition can be filed here.”

More recently, McShane also questioned contentions by ICE about when a detainee crossed the border. In a case involving a detainee identified only by the initials “NJLI,” McShane on Oct. 16 found “insufficient facts for this Court to determine Petitioner’s district of confinement” at the time a habeas petition was filed, according to online records.

Reynolds said she didn’t know if Kasubhai’s ruling might have broader repercussions.

“But I do really appreciate the judge’s comments that when you are a public servant and you are charged with … transporting or serving people, that you have to remember that these are human beings, and these are real lives that are at issue here,” Reynolds said.

Questioning driver

In Friday’s evidentiary hearing, Reynolds and Kasubhai grilled the ICE driver for more than an hour.

Identified in court only by his initials, the driver said he could not remember the time he left Madras with the detainee nor the route he took Oct. 17, stating, “I just put it in my GPS and follow the route.”

He also said he did not remember his speed — “I had it on cruise control,” he said — though he said he followed the speed limit.

The driver said he was instructed by a supervisor to take the screenshot photo when he arrived in Washington, but said he could not recall the name of the supervisor who told him to do so.

“I get so busy sometimes, I don’t even know what the next day is,” the driver said. 

Under questioning, the driver said he began driving detainees to Washington about a month ago and has been employed by ICE for about 10 months. Before working for ICE he said he had worked in retail stores and also as a digital designer.

Questioned about bathroom breaks, he said he had not been trained to offer hand sanitizer, but that he did so on his own.

“There seems to be a lack of training and regard for the monumental responsibility of transporting other human beings when they allow someone like [the ICE officer who testified] to be the only one in a vehicle taking people long distances to the District of Washington,” Kasubhai said.

ICE has what it calls National Detention Standards that are published online and include a section on “Transportation by Land.”

The standards were not brought up during Friday’s hearing. They state in part: “Detainees being transported between facilities, institutions, or jurisdiction will be moved safely and humanely under the supervision of trained, experienced personnel.”

Asked to read text messages from the date he drove the man from Madras to Washington state, the ICE officer read messages he said he sent to a supervisor about being followed.

“I had a tail almost follow me home,” the text message stated, according to the driver’s testimony. “I am hiding out for a while until I get home.”

Other text messages involved attempts to identify the license plate of the vehicle from a photograph taken by the driver.

Asked in court why he sent the messages, the driver said, “I was fearing for my safety.” 

The driver was named in public court documents, but Lookout Eugene-Springfield is choosing not to name him. Assistant U.S. Attorney Gabrielle Parris-Ramfjord moved in court Friday to replace the public document naming the driver with a document identifying him only by his initials, and Kasubhai said he would allow the document to be refiled without the man’s name.

During Friday’s hearing, Kasubhai at one point questioned Parris-Ramjford.

“So we don’t worry about officers endangering people’s lives by speeding on the highway? That’s a huge public safety concern,” Kasubhai said.

“I don’t believe that is supported today in the record,” Parris-Ramfjord said in response.