The question of whether local law enforcement in Colorado can hold suspected unauthorized immigrants past their release dates for ICE is in the legal crosshairs with one judge’s answer now in conflict with another judge’s — from the same judicial district.
In March, 4th Judicial District Judge Eric Bentley in Colorado Springs ruled an agreement El Paso County Sheriff Bill Elder had with federal immigration authorities to hold inmates beyond their release dates violates state law. The judge said doing so without an order signed by a federal judge constitutes a “warrantless arrest.”
But a ruling just this week by Judge Lin Billings Vela, also in the 4th Judicial District, allows, thus far, neighboring Teller County’s Sheriff Jason Mikesell to keep his own agreement to hold onto a suspected unauthorized immigrant upon release for U.S. Immigration and Customs Enforcement.
The ACLU of Colorado sued the sheriffs in both cases.
In the Teller County case, the ACLU represents an undocumented immigrant named Leonardo Canseco Salinas who was arrested for allegedly playing $8.25 in unattended slot machine credits and having an allegedly forged green card, according to court documents. A Teller County deputy faxed information about Canseco Salinas to ICE, and ICE faxed back a form saying the Department of Homeland Security determined that probable cause existed that Canseco Salinas is a “removable alien.” The form, signed by an “authorized immigration officer,” also asked that sheriff’s department to notify DHS at least 48 hours before they release him and to hold him “for a period not to exceed 48 hours beyond the time when he would otherwise have been released from custody to allow DHS to assume custody,” according to court documents.
Canseco Salinas hasn’t yet posted bond because of the possibility that ICE will take him into custody when he does, court documents say. The ACLU asked Judge Billings Vela for a preliminary injunction, arguing the sheriff should release Canseco Salinas when he posts bond, and holding him any longer for ICE would be a new warrantless arrest. The sheriff’s office argued they should be allowed to cooperate with ICE, and pointed to a revised ICE policy from 2017, “which now includes a probable cause analysis” on a form, and another form “signed by an authorized ICE officer as providing probable cause that the person is a removable alien,” the judge wrote.
In her decision against issuing a preliminary injunction, Billings Vela wrote:
There is no controlling case law in Colorado on the issue presented in this case. Colorado does not have a statute compelling law enforcement to cooperate with federal immigration officials … Nor does Colorado have a statute prohibiting law enforcement from cooperating with federal immigration officials (House Bill 15-1356, which sought to prohibit a public safety agency from holding or detaining a person beyond the point he/she is eligible for release based solely on an immigration detainer request or warrant, did not pass). Both parties cite cases from other jurisdictions as persuasive authority. The briefs from the United States and the Amici Curiae also cite numerous cases from federal and state courts across the country. Another division in this judicial district recently reached a different result in a similar situation. What is apparent in this area of continuously developing law and legal uncertainty is that reasonable minds both analyzing the same set of facts and legal authority may reach different conclusions.
The ACLU said in a statement that it is disappointed in this decision in its ongoing case in Teller County.
“This decision is now in direct conflict with a previous order from the same court stating that requests from ICE do not provide legal authority for Colorado sheriffs to hold individuals after they post bond or resolve their criminal cases,” said ACLU of Colorado Legal Director Mark Silverstein in a statement. “We are confident that the higher courts will ultimately agree with our position, and we will continue to work toward that result.”
Against this backdrop is a political season where Republicans at the state and national level are making so-called sanctuary cities a focal point of their campaigns, and as Republican President Donald Trump cracks down on people crossing the U.S. border illegally and unauthorized immigrants who are already in the country.
There is not a legal definition of a sanctuary city in Colorado, but the term generally applies to municipalities like Denver that might not honor requests by federal immigration agents to hold suspects in jail beyond their release dates or share information about a suspect’s immigration status with ICE. Denver Mayor Michael Hancock has said the city is not a sanctuary city, but has said he embraces the title if it means Denver is welcoming to immigrants and refugees. In 2014, a federal judge ruled that a county jail in Oregon holding a woman past her release date had violated her 14th Amendment Constitutional right against unreasonable search and seizure.
According to a 2017 report by the pro-immigration libertarian Cato Institute, “All immigrants are less likely to be incarcerated than natives relative to their shares of the population,” and “Even illegal immigrants are less likely to be incarcerated than native-born Americans.” Still, a Gallup survey from the same year found nearly half of Americans believe immigrants make “the crime situation” worse.
Trump has repeatedly ripped immigration-friendly policies of local municipalities, saying those cities “breed crime.”
According to Factcheck.org, “U.S. Immigration and Customs Enforcement documented nearly 2,000 cases in which cities with sanctuary policies refused to honor ICE detainers, and unauthorized immigrants then went on to commit crimes. But some law enforcement officials say that in the big picture, sanctuary policies also can help to reduce crime” by building trusting relationships with immigrant communities.
On Monday, during a news conference in Woodland Park, Teller County Sheriff Mikesell said, “We won the right to continue to protect our citizens,” The Gazette reported.
In El Paso County, Elder has vowed to fight the ALCU’s lawsuit and take it to the nation’s highest court if he has to.
The Teller County decision might already be having ripple effects. The County Sheriffs of Colorado Association has a policy that sheriffs can’t hold unauthorized immigrants beyond their release dates without a signed warrant from a judge, but in light of the judge’s recent decision the group will review that policy, The Pueblo Chieftain reported.
“Ultimately, this could be a good test case that will have to work its way through the appeals process,” Pueblo County Sheriff Kirk Taylor told the paper. “It’s not that sheriffs don’t want to hold people for ICE, but the guidance that we’ve received from previous federal court decisions is that we can’t.”
He said the association would likely talk about the issue at its meeting in Steamboat Springs next week.