Colorado court rules against arresting jailed migrants on federal detainers

DENVER (KDVR) — The Colorado Court of Appeals ruled last week that state and local law enforcement cannot arrest or detain already jailed individuals on a civil immigration detainer if they would otherwise be eligible for release.

The case was brought by the ACLU of Colorado on behalf of five Teller County taxpayers who were opposed to state tax funds being used to hold migrants in the state or local facility on a federal detainer. The case was brought against Teller County Sheriff Jason Mikesell, challenging the sheriff’s office’s agreement with Immigration and Customs Enforcement established in January 2019.

The ACLU of Colorado said the so-called “287(g)” agreement, named after the section of federal law it’s pulled from, “targeted immigrants at the Teller County Jail.”

The district court ruling that was overturned said that the taxpayers’ argument that people should be allowed to bond out of jail and then be served with an immigration detainer would lead to “chaos.” The appeals court disagreed and said that ICE should be the group arresting or detaining migrants without legal authorization to be in the U.S.

“Though a procedure that requires ICE officers to directly arrest and detain aliens — rather than delegating such authority to local law enforcement — would require ICE to exercise more effort to apprehend and detain aliens, it was the legislature’s prerogative to require immigration officials to put forth that effort in Colorado,” the appeals court stated.

Because of the appeals judgment, the case has been sent back to the district court. The appeals court judges reversed the previous lower court judgment and remanded the case with directions to the district court.

“This is the first case in the country holding that a sheriff violates state law by detaining immigrants pursuant to a 287(g) agreement with ICE,” the ACLU of Colorado stated in a release .

“We brought this case out of concern for the harm that the Sheriff’s agreement inflicts on all Coloradans. Local law enforcement officers have no business acting as federal immigration agents and keeping immigrants in jail — especially when state law expressly forbids them from doing so. The court’s ruling sends an important message that no Colorado sheriff is above the law,” the ACLU of Colorado added.

Teller County has contracted with ICE since 2019

The Teller County Sheriff’s Office first entered into an agreement with ICE in January 2019, according to the appeals court documents. The agreement delegated ICE’s authority to the sheriff’s office, and specifically to four deputies with “designated immigration officer” training.

According to the court case, these designated officers arrested people at the Teller County Jail on ICE’s behalf several times, while the inmates would have otherwise been eligible for release.

There are two main forms that are referenced in the case. The first, I-247A, is an immigration detainer that states “DHS has determined that probable cause exists that the subject is a removable alien,” and requests the local jail call ICE before the individual is released and keep them in custody for 48 hours or less to allow DHS to take the individual into custody.

The I-247A forms have to be accompanied by the second form, I-200, which is titled “warrant for arrest of alien” and directs any authorized immigration officer to serve arrest warrants for immigration violations.

When the case was argued in district court, the judge ordered that Mikesell’s claims be granted and the five represented taxpayers be denied. The judge found that Mikesell had the legal authority to enter into the agreement with ICE, and the functions the designated officers were performing were “lawful and consistent with Colorado law.”

According to the appeals court, the district court concluded that law enforcement officer prohibitions could not apply to designated enforcement officers because they are “federal officers, not state officers, when performing functions” under the agreement. The appeals court said it disagreed with that conclusion because the deputies still operate at state expense and noted that there are some purposes for which the deputies are federal employees, and not for others.

“In other words, (Teller County Sheriff’s Office’s) DIOs remain subject to Colorado law even though they are also subject to federal law while performing immigration enforcement functions,” the appeals court wrote. The court also noted several cases upholding that logic and said that Colorado’s police power regulations are not preempted by federal law.

Are agreements with ICE necessary for peacekeeping?

The court then looked at the last issue at hand: whether the Teller County Sheriff’s Office can fulfill its statutory peacekeeping duties without an agreement with ICE.

“Sheriff Mikesell testified he was able to fulfill his statutory peacekeeping duties before TCSO’s Agreement,” the appeals court wrote. “And Sheriff Mikesell testified that he couldn’t remember any issues with his ability to perform his duties during the time TCSO didn’t have any DIOs performing immigration officer functions under TCSO’s Agreement.”

Nevertheless, the district court found that the agreement “furthered Sheriff Mikesell’s general authority to preserve the peace.” The court also noted that there are sections of law that say Colorado law enforcement, such as sheriff’s deputies, cannot arrest or detain individuals on civil immigration detainers.

The case will return to the district court to determine whether the five taxpayers met their burden of proof for a permanent injunction, which would be the final ruling on the case if the judge determines they met that burden.

FOX31 reached out to the Teller County Sheriff’s Office in search of comment on this litigation. A public information officer said Tuesday that the sheriff will be releasing information after conferring with his attorney.

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