On February 22, 2023, Colorado state court judge Scott A. Sells held that Teller County Sheriff Jason Mikesell had legal authority to participate in an controversial agreement with federal Immigration and Customs Enforcement (ICE) – despite a 2019 state law prohibiting law enforcement officials in the state from holding anyone based on an immigration detainer. When certified by ICE and acting pursuant to an agreement under Section 287(g) of the Immigration and Nationality Act, the Court reasoned, local or state law enforcement personnel become de facto federal officers, putting them beyond the reach of the state government.
ICE uses the agreements to train and certify local jail guards to identify detainees eligible for deportation and process them upon release directly into federal custody. The plaintiffs, taxpayers in Teller County, filed suit arguing that Sheriff Mikesell had exceeded his authority by participating in the 287(g) program. They argued he was in violation of Colorado’s constitution and state law by authorizing his deputies to arrest and detain people otherwise eligible for release from jail based solely on ICE documents that were not signed by a judge. They sought declaratory relief and an injunction prohibiting deputies from acting under the 287(g) program.
Sheriff Mikesell began participating in the program in January 2019, not long before HB19-1124 was signed into law by Gov. Jared Polis (D) on May 28 of that year, becoming CSR § 24-76.6-102(2). During the following three-year period, 16 Teller County jail detainees were subject to ICE holds under 287(g), including three who had made bond and otherwise would have been released. Those three were held based on ICE Form 1-200, “Warrant for Arrest of Alien,” which is signed by an immigration official, not by a court. Yet Judge Sells found that Form 1-200 was “a valid warrant pursuant to federal law,” with no judicial signature required.
The plaintiffs contended that the sheriff’s participation in the 287(g) program violated CRS § 24-76.6-102 (1)(b), which states, “Requests for civil immigration detainers are not warrants under Colorado law. A warrant is a written order by a judge .... The continued detention of an inmate at the request of federal immigration authorities beyond when he or she would otherwise be released constitutes a warrantless arrest, which is unconstitutional.”
Judge Sells fixated on the word “request” in the statute, noting that the 287(g)-certified deputies “do not arrest anyone based on a ‘request.’ Instead, they serve valid federal arrest warrants on individuals .... No individual has been arrested or detained based on a civil immigration detainer request,” because the “1-200 warrant is not a request.”
Additionally, the court held that 287(g)-certified deputies, although county employees, were “de facto federal immigration officers” who served “federal warrants in their federal capacity” – despite the clear language of CSR § 24-76.6-102(2) that reads: “A law enforcement officer shall not arrest or detain an individual on the basis of a civil immigration detainer request.”
Judge Sells also wrote, disingenuously, that the sheriff had authority to serve process in civil or criminal cases, and serving Form 1-200 warrants fell within that authority. “That the service of process results in an arrest for ICE ... is irrelevant to the determination that the Sheriff possess [sic] express authority under Colorado law to serve process,” he stated.
Concluding the state legislature “did not prohibit Colorado sheriffs from entering into 287(g) agreements,” the court granted declaratory relief in favor of Sheriff Mikesell. See: Nash v. Mikesell, Colo. Jud. (Teller Cty.), Case No. 2019CV30051.
“We remain steadfast in our claim that the sheriff’s program of enforcing federal immigration law violates the Colorado Constitution as well as state law,” said Mark Silverstein, former legal director for the American Civil Liberties Union of Colorado, which represented plaintiffs in the suit and vowed to appeal.
State lawmakers introduced House Bill 1100 in January 2023, shortly before Judge Sells released his decision. Passed and signed by Gov. Polis on June 6, 2023, the law now prohibits local governments, as well as the state, from entering into ICE detention agreements. The law also required any existing agreements to be terminated. Teller County had Colorado’s only 287(g) agreement with ICE.
Additional source: Colorado Sun
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