DENVER (CN) – The ACLU accused a Colorado sheriff of breaking state law Tuesday by wrongfully detaining released persons for ICE.
At the request of Immigration and Customs Enforcement, El Paso County Sheriff Bill Elder has held numerous individuals in prison days, weeks, and months after posting bond, completing their sentence, or having their cases cleared.
The class action lawsuit was filed by Saul Cisneros, 47, and Rut Noemi Chavez Rodriguez, 21, two Colorado Springs residents who have been imprisoned since November. ACLU estimates 200 other individuals have been retained on ICE holds in El Paso over the last year.
“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 Mark Silverstein, legal director ACLU of Colorado. “When individuals have posted bond or resolved their criminal case, Colorado law requires that Sheriff Elder release them.”
After Cisneros’ eldest daughter posted his $2,000 bail, she learned that he would not be released until ICE finished its investigation. Rodriguez’s family prepared her $1,000 bail, but was told she would remain imprisoned.
Once the state has ordered the individual’s release, a new arrest with a new cause is required to continue to hold them. A local law enforcement officer cannot make an arrest on behalf of ICE without a warrant signed by a judge.
Yet the complaint alleges “Sheriff Elder … carries out these lawless deprivations of liberty in the absence of a judicial warrant, without probable cause of a crime, and without any other valid legal authority.”
In the past, ICE has routinely issued detainer requests, or “ICE holds,” asking local sheriffs to hold persons up to five days beyond their legal release while the federal office investigates whether to take them into custody for a suspected immigration violation.
ACLU reports that ICE issued more than 8,700 detainer requests to Colorado jails between October 2011 and August 2013. In 2013, the Colorado legislature repealed a law requiring local law enforcement to enforce federal immigration policy in hopes of building trust between immigrants and local police.
“Since 2007, we have not changed any of our practices as it relates to the arrest and housing of inmates to include foreign born nationals,” Elder said. “We arrest and house criminals where probable cause exists for a state crime. If the criminal is unlawfully present, EPSO honors the detainer filed by ICE and requires ICE to pick up the inmate within a reasonable period of time.”
It is the policy of the El Paso Sheriff’s Office to immediately notify ICE when a “foreign born national is arrested on state charges.” Elder also pointed out that El Paso County does not consider itself a sanctuary and that the El Paso County Sheriff’s Office has never been added to ICE’s warning list for failing to cooperate.
“What we’ve seen is any communication between local law enforcement and ICE break community trust, and it really makes sheriffs’ jobs harder, because people are afraid to collaborate with them,” said Brendan Greene, campaign director for the Colorado Immigrant Rights Coalition. “Folks no longer see them as sheriffs representing the whole community. They are really seen as ICE agents.”
A new strategy being promoted by ICE includes issuing administrative warrants with their detainer requests. Without a judge’s signature, the lawsuit claims, Colorado sheriffs have no authority to execute them.
“Now they (ICE agents) are pushing a new program, that if they fax them a different combination of papers, none of which are approved by a judge, that they all of suddenly magically become a federal prisoner of ICE authority and that is not how it works,” Greene added.
In addition to seeking compensation for Cisneros, the class action suit seeks “declaratory judgment and an injunction on behalf of all current and future prisoners who are the subject of ICE detainers.”
In addition to the ALCU Colorado, the plaintiffs are being represented by Stephen Masciocchi, an attorney with Holland & Hart.