Tuesday, February 27, 2018

UPDATE: ACLU of Colorado sues Sheriff Bill Elder over "ICE holds" at the jail

Posted By on Tue, Feb 27, 2018 at 3:53 PM

People have been illegally held at the county's Criminal Justice Center, the ACLU of Colorado alleges in a lawsuit. - FILE PHOTO
  • File photo
  • People have been illegally held at the county's Criminal Justice Center, the ACLU of Colorado alleges in a lawsuit.


UPDATE: The Sheriff's Office has released a statement that appears to defend its enforcement of ICE policies rather than refute the ACLU's claim that it's overstepping its powers. In the statement below, Sheriff Bill Elder also claims that policies on ICE detainees haven't changed since 2007, which is puzzling given that the department claimed to have exited the federal program known as 287(g) in 2015.

Back in February 2017, Elder told the Indy, "Even if we wanted to [house ICE detainees] we just don't have any more room."

Here's his statement:
The Sheriff’s Office will not speak about pending litigation. What I can say is that 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. 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.

Make no mistake, we have and will continue to fully cooperate with Immigration and Customs Enforcement (ICE). ICE itself agrees that we fully cooperate!

The following steps are followed when a foreign born national is arrested on state charges and presented to the El Paso County Jail.

ICE is notified immediately upon booking. If ICE requests a hold, EPSO holds the inmate and notifies ICE when the arrestee is preparing to post bond or be released after serving the sentence imposed by the local court. If ICE wishes to pursue deportation, ICE presents their signed form I-247 (a statement signed by an ICE agent confirming that the person in custody is foreign born) and the foreign-born immigrant remains in custody until ICE responds.

The El Paso County Sheriff’s Office has never been added to any ICE warning list for failing to cooperate.

In addition, El Paso County maintains an Intergovernmental Agreement with ICE, agreeing to hold their in-custody foreign born immigrants who are awaiting deportation. EPSO complies with ICE audits of the jail facility as well. EPSO is reimbursed for the costs of housing immigrants.

The facts are that El Paso County does not provide sanctuary status.

The priority of this agency is ensuring the safety of the community by keeping criminals off the streets, regardless of their nationality or immigration status.
Then, the county, too, issued a statement:
While El Paso County cannot speak specifically to the pending litigation, it is clear that the ongoing debate over United States immigration policies is having a local impact.

Comprehensive United States immigration legislation adopted by Congress in 1952 has been amended and adapted through federal legislation, Presidential orders and court rulings over the last 60 years.

There is almost universal agreement in Washington that through this process that immigration policies and procedures have become overly confusing and are in need of comprehensive reform. But there has been no agreement on reform proposals among federal lawmakers or between lawmakers and the Whitehouse [sic].

As a result, this is an area of the law that is constantly evolving, largely through court rulings on specific cases that may not provide guidance to law enforcement agencies as they deal with local cases.

The Sheriff’s Office has briefed the Board of County Commissioners on the complexities involved. The County will continue to work to ensure public safety by fostering strong relationships with its law enforcement partners at all levels.

The County fully supports the Sheriff’s Office in these efforts and applauds the Sheriff for his ongoing commitment to work in a collaborative manner and reduce crime throughout the region.
——————-ORIGINAL POST 1:46 P.M. TUESDAY, FEB. 27, 2018————————-

The American Civil Liberties Union of Colorado has filed a lawsuit against El Paso County Sheriff Bill Elder alleging he illegally is detaining people under Immigration and Customs Enforcement orders that don't carry the weight of a warrant signed by a judge.

Moreover, the ACLU is seeking class action status for all detainees who have been or will be illegally held. The class is defined in the lawsuit as "prisoners in the El Paso County Jail who are, or will be, the subjects of immigration detainers (ICE Form I-247A) and/or administrative warrants (ICE Form I-200) sent to the Jail by officers of United States Immigration and Customs Enforcement."

According to the lawsuit, the proposed class is "so numerous and so fluid that joinder of all members is impracticable."
click to enlarge Sheriff Bill Elder was named in a lawsuit filed Feb. 27 alleging people are being held illegally in the county jail. - FILE PHOTO
  • File photo
  • Sheriff Bill Elder was named in a lawsuit filed Feb. 27 alleging people are being held illegally in the county jail.

According to a roster obtained by the ACLU from the Sheriff's Office for 2017 and the first three weeks of 2018, 180 prisoners were listed as having "ICE holds."

The lawsuit, filed in El Paso County District Court on Feb. 27, alleges that Elder is the only sheriff in Colorado who continues to hold detainees on "ICE holds" after the ACLU explained, back in 2014, that it's illegal to hold someone without a warrant signed by a judge.

We've asked County Attorney Amy Folsom and the Sheriff's Office for a comment on the case and will update if and when we hear from them.

The lawsuit cites specific cases, such as this one:
51. The court set bond for Mr. Cisneros at $2000. On November 28, 2017, Gloria Cisneros, Saul’s eldest daughter, went to the jail to post bond for her father. She posted the money and obtained a receipt, but her father was not released.

52. Gloria made several calls to the jail the next day. She was told that after she posted the bond money, ICE put a “hold” on her father, so the jail would not release him. Later that day, another jail deputy explained that with an “ICE hold” on her father, he could not get out on bond.

53. Gloria was able to obtain the return of the money she had posted in her unsuccessful attempt to secure her father’s release on bond.

54. The inmate search portion of the jail’s website now states that Mr. Cisneros has an “ICE hold.”

55. Gloria Cisneros remains willing and able to again post the $2,000 bond to secure her father’s release from jail pending trial on his misdemeanor charges. Because of Sheriff Elder’s policies that are challenged in this lawsuit, she cannot secure her father’s release without the intervention of this Court. 
Here's the ACLU's news release:
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 today by the 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 Chavez, 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, Chavez’s pastor and his wife have been told that due to an “ICE hold,” the jail will not release Chavez on the $1000 bond set by the El Paso County District Court.

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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