El Paso County Sheriff Bill Elder is violating Colorado law by refusing, at the request of federal immigration officials, to release prisoners who have posted bond, completed their sentence, or otherwise resolved their criminal case, according to a class action lawsuit filed February 27, by the American Civil Liberties Union (ACLU) of Colorado.
Colorado sheriffs have no legal authority to enforce federal immigration law. Nevertheless, according to the ACLU lawsuit, Sheriff Elder has unlawfully imprisoned dozens of individuals for days, weeks, and even months, without a warrant, without probable cause of a crime, and without any other valid legal authority, solely on the ground that ICE suspects that they are subject to deportation for civil immigration violations.
“Colorado law authorizes sheriffs to deprive someone of their liberty only when there is probable cause of a crime, not for suspected civil violations of federal immigration law,” said ACLU of Colorado Legal Director Mark Silverstein. “When individuals have posted bond or resolved their criminal case, Colorado law requires that Sheriff Elder release them.”
The ACLU’s clients, Saul Cisneros and Rut Chávez, have been held in the El Paso County Jail as pretrial detainees since November. Shortly after his arrest, Cisneros’s daughter posted his bond, set at $2,000 by the county court, but the jail refused to release him because of a detainer request from ICE. Similarly, Chávez’s pastor and his wife have been told that due to an “ICE hold,” the jail will not release Chávez on the $1000 bond set by the El Paso County District Court.
“When individuals have posted bond or resolved their criminal case, Colorado law requires that Sheriff Elder release them.”
In 2014, ACLU of Colorado wrote to Colorado sheriffs explaining that when they hold a prisoner on the basis of ICE detainer requests, they are making a new arrest, without legal authority. The ACLU then negotiated a $30,000 settlement with Arapahoe County on behalf of Claudia Valdez, a domestic violence victim who was held for three days after a judge ordered her release because the jail honored an ICE detainer request.
Within a few months, every Colorado sheriff receiving the ACLU letter declared that they would not hold prisoners for ICE without a warrant signed by a judge. By the end of 2016, more than 500 state and local law enforcement agencies around the country were declining to hold prisoners on the basis of ICE immigration detainers and ICE administrative warrants.
ICE is now promoting a new arrangement that it claims will shield sheriffs from legal liability for honoring ICE detainers. Under this arrangement, ICE signs a contract to house federal detainees at the jail at a daily rate. When ICE takes interest in a prisoner, it faxes or emails three forms—none of which is approved by a judge—to the jail, and according to ICE, the detainee then becomes a federal prisoner in ICE custody.
The new arrangement does not change the fact that when Sheriff Elder holds a prisoner for ICE, it is he, not ICE, who is making a new arrest, one that he has no legal authority to make, according to the ACLU. ICE does not transform a prisoner from state to federal custody by sending a fax or an email, the lawsuit says.
“Sheriff Elder is allowing ICE to co-opt space and resources in an already overcrowded jail,” Staff Attorney Arash Jahanian said. “The jail’s participation in this scheme does nothing to promote public safety. Our clients have no prior criminal records and should have been out on bond months ago, consistent with determinations by a court of law. Their situation is yet another indication of the Trump administration’s inhumane and indiscriminate immigration policies.”
The ACLU’s class action seeks a declaratory judgment and an injunction on behalf of all current and future prisoners who are the subject of ICE detainers. According to the complaint, almost two hundred prisoners were subject to ICE holds in the El Paso County Jail in 2017, and the jail labels more than four dozen prisoners as “ICE holds” on any given day.
The lawsuit also seeks compensation for Cisneros, whose three months of unlawful imprisonment dates from his daughter’s posting of bond in November, 2017.
Plaintiffs are represented by Silverstein and Jahanian from ACLU of Colorado and Stephen G. Masciocchi of Holland & Hart, LLP.
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