Fidel Kabyesiza hadn't been charged with a crime when he spent a month detained at the El Paso County jail. He was in the custody of U.S. Immigration and Customs Enforcement, awaiting resolution to a dispute regarding his immigration status, and was being housed at the county jail through a service-provider agreement between the county and the federal agency.
Two years later, Kabyesiza has filed a lawsuit against Sheriff Terry Maketa, alleging the jail violated his Fourth Amendment rights and ignored ICE's policy on how detainees are to be handled. The lawsuit seeks unspecified monetary damages.
The Tanzanian-born student first came to the United States in 2003 to study in Ohio, later moving to Colorado. According to the claim filed Dec. 21, Kabyesiza was detained by ICE in 2007 for overstaying his student visa.
Kabyesiza was released pending a review of his immigration status. As the complaint reads, "The condition of his release changed over time, sometimes requiring him to wear an ankle bracelet, mandating that he be physically present at his residence from 6 p.m. to 6 a.m. every day, requiring in-person reporting to the ICE office periodically, requiring documentation of his whereabouts and activities, and subjecting him to unnoticed home visits."
Kabyesiza could not be contacted. His attorney, Zhonette Brown, declined to discuss the case.
In 2008, the county signed an Inter-governmental Service Agreement with ICE to house detainees for a fee of $62.40 per detainee per day. In 2009, this a meant a revenue of $3.6 million — 10 percent of the sheriff’s budget.
The jail can hold up to 150 detainees at a time, who are housed among the general population, according to Deputy Teresa Murphy. At the moment, the jail is holding fewer than 100 detainees.
As to Kabyesiza’s suit, Murphy points out that the sheriff’s office has yet to be served, so “as this matter needs looking into, we cannot offer any additional comment.”
On Dec. 23, 2008, wearied from restrictions for more than a year and complaining that these conditions impeded his ability to make a living, Kabyesiza approached ICE officials in Aurora, wanting resolution of his immigration status. ICE took him into custody. The next day, he was transferred to El Paso County jail, according to the complaint, to be held pending the review.
According to the 2008 agreement, detainees are not charged with criminal violations but are held "to assure their presence throughout the administrative hearing process."
Kabyesiza's suit alleges that when he was transferred to the county jail, he was strip-searched in a common shower area. The search was invasive, his complaint states, including a visual body cavity search, and was conducted in an area open to other detainees, and despite no reasonable suspicion that Kabyesiza was trying to smuggle contraband into the jail.
The jail might conduct full-body searches on inmates held on criminal charges, but Kabyesiza was not being held on criminal charges. The suit says Kabyesiza "has no criminal, drug-related or violent background and had not displayed any suspicious or aggressive behavior."
ICE standards say detainees may be strip-searched and subjected to a cavity search "only when there is reasonable suspicion that contraband may be concealed on that person," and must be based on "specific and articulable facts." Kabyesiza alleges he was strip-searched because of a blanket policy for all detainees processed into the jail.
"Officers," his complaint reads, "instead subjected all detainees, including Mr. Kabyesiza, to an unconstitutional blanket strip and visual body cavity search policy that conflicted with ICE's written policy at that time."
Kabyesiza, according to his attorney, now resides in Denver.
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