Like it or not, President Donald Trump appears to be making good on his campaign promises.
During his first week in office, the newly elected Republican executive signed a flurry of orders designed to fulfill a campaign promise to crack down on refugees and immigrants. So far, the two that deal with illegal immigration may seem more subtle than the immediately chaotic "Muslim ban," but in time, El Paso County could be forced to choose between violating the Constitution or sacrificing federal grant money.
Whether that choice actually looms depends on how the administration's new policy gets implemented. There are parts — like the construction of a southern border wall — that can't materialize without appropriations from Congress, but there are others — like new enforcement priorities — that lay the groundwork for mass deportations right away.
Under President Barack Obama, undocumented immigrants involved with espionage, terrorism or gang activity were top priority for removal while lower-level offenders were supposed to be secondary. That guidance, however, was interpreted so loosely that Immigration and Customs Enforcement (ICE) agents were known to go after people whose infractions were as minor as driving with a busted tail light.
Similarly, Trump vowed to focus on "criminal aliens" like murderers, rapists, drug dealers, etc. But his executive order stretches those priorities to include those convicted of or charged with any crime and anyone who has committed acts that constitute a chargeable offense (e.g., crossing the border without inspection). Also subject to priority removal, according to the order, is anyone who "in the judgment of an immigration officer, otherwise pose[s] a risk to public safety or national security."
"It's about as broad as you could make it," comments Kyle Huelsman, Colorado Immigrant Rights Coalition's policy and advocacy manager, about the category of people now at risk for deportation.
To see all those removals through, the order sets out executive policy to "empower State and local law enforcement agencies across the country to perform the functions of an immigration officer" through agreements that authorize local deputies to carry out "the investigation, apprehension, or detention of aliens."
Those agreements, part of the 287(g) program, have been touted as a "force multiplier" since the Clinton era. Trouble is, over the years, local agencies have grown hesitant to participate because turning deputies into de facto immigration officers is expensive, litigious and breeds distrust in Latino communities. El Paso County Sheriff's Office stopped participating in 2015, but 37 agencies in 16 states are still in 287(g) agreements.
They are optional by nature, so to urge cooperation the executive order makes a threat: "The Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 [sanctuary jurisdictions] are not eligible to receive Federal grants."
Unlike Denver, Aurora and Boulder, nobody's calling Colorado Springs a "sanctuary city." But, there's no precise definition for what that means. Commonly, the term refers to jurisdictions that don't assist with immigration enforcement — the politicized connotation there being that local officials would defiantly shelter undocumented immigrants while withholding information from the feds.
In reality, there's a lot of variation in how local law enforcement agencies interact with immigration enforcers. The primary way, as required by law, is for county jails to automatically share arrestees' fingerprints so ICE can check them against immigration databases. Then, if an ICE field office suspects the arrestee of an immigration violation, agents can ask the jail to hold on to that person so ICE can shepherd them straight from jail into deportation proceedings.
Some hold requests, otherwise known as "detainers," are actually warrants signed by a judge or magistrate based on probable cause. Others are merely requests that carry no legal obligation.
Since 2014, a federal district court and two other appellate circuits have ruled that honoring warrantless detainers is unconstitutional. In cases involving both citizens and non-citizens, jurisdictions that held people past when they could've otherwise been released were found to have violated the Fourth Amendment, which requires probable cause to make an arrest. Crucially, civil liability fell on the counties that honored the detainers, not the agency that issued them.
After those rulings came down, hundreds of county jails — including those in Colorado — stopped unlawfully detaining people on ICE's behalf. El Paso County was one of the last to do so in Colorado, but the Sheriff's Office under Bill Elder has become considerably disentangled from the immigration enforcement apparatus.
"That won't change," Elder told the Indy after the order came down. To be clear, his office doesn't honor warrantless detainers, participate in the 287(g) program or have any intent to do so. The county jail, however, does share inmates' information with ICE and has even housed detainees in deportation proceedings on ICE's behalf. The intergovernmental agreement that compensates El Paso County for ICE's use of jail beds is ongoing but dormant.
"Even if we wanted to [house ICE detainees] we just don't have any more room," says Sheriff Elder of the county jail that's maxed out with a daily population between 1,500 and 1,700. "In fact, we ship some inmates off to other facilities."
Sheriff's spokesperson Jackie Kirby emphasizes that no local policies have changed and adds, "We are not a sanctuary county, but we will not violate the Constitution."
Some jurisdictions cooperate with federal immigration enforcement more than El Paso County and some cooperate less. But who gets labeled a "sanctuary city" is up to the Secretary of Homeland Security, Gen. John Kelly, so for now there's no knowing who's at risk of losing federal grant money.
The administration's financial threat isn't guaranteed to work. There could be a relevant precedent set by the U.S. Supreme Court's ruling against the Obama administration's attempt to tie states' federal funding to their cooperation in Medicaid expansion. But Trump's executive order names grants, not appropriations, so the circumstances could be considered different.
"We will see lawsuits," predicts Huelsman. "At this point, everyone's just waiting until they actually withhold federal funding. Then some jurisdiction will have to go to court."
Already, though, the strategy is working. Right after Trump signed the order, the mayor of Miami-Dade County in Florida capitulated, telling local jails to start honoring warrantless detainers. "It really was a no-brainer," Mayor Carlos Gimenez told Fox and Friends on Jan. 27. "It's a $52,000 a year issue for Miami-Dade."
The move earned him a supportive tweet from the commander-in-chief that read: "Miami-Dade Mayor drops sanctuary policy. Right decision. Strong!"
That dynamic has immigration advocates worried. "This policy is focused directly at a state like Colorado, to try to get us back in line," says Huelsman. "We need a broad base of citizen allies to make sure our local officials aren't willing to negotiate."
Responding to the Indy via a translation done by Colorado College Spanish Professor Naomi Pueo Wood, local grassroots immigrant rights organization, Grupo Esperanza stated, "This is a very important and difficult moment for all foreigners as we are now in an environment where racial differences are inciting fear and negative feelings. Since our arrival in this country we have been subject to daily fights starting with linguistic difference, customs, people that look at us differently, and even higher rates of taxation because we do not hold adequate documentation. And, although this is a painful process, we look for a way to adjust and to follow the laws of this land so that our families are respected ... We want to come out of the shadows."