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Judge orders Colorado sheriff to stop holding prisoners illegally for ICE

ACLU of Colorado filed a class action lawsuit on Feb. 27 alleging Elder had unlawfully imprisoned dozens of individuals for days, weeks and even months without legal authority.

A judge ordered a Colorado sheriff on Monday to stop holding prisoners illegally for immigration officials, siding with the American Civil Liberties Union's request for a preliminary injunction.

State District Court Judge Eric Bentley ordered El Paso County Sheriff Bill Elder to immediately stop relying on ICE immigration detainers or ICE administrative warrants as grounds for refusing to release plaintiffs from custody when they post bond, complete their sentences or otherwise resolve their criminal cases.

ACLU of Colorado filed a class action lawsuit on Feb. 27 alleging Elder had unlawfully imprisoned dozens of individuals for days, weeks and even months without legal authority, solely on the ground that ICE suspected that they were subject to deportation for civil immigration violations.

According to court documents, the two named plaintiffs - Saul Cisneros and Rut Noemi Chavez Rodriguez - both attempted to post bond, but the sheriff's office told them it wouldn't be accepted because they were on ICE holds. The most recent EPSO policy stated the office would hold people for up to 48 hours, to give ICE an opportunity to provide proper documentation and take them into custody.

At a hearing Monday morning, ACLU attorneys requested a preliminary injunction to stop the practice, arguing Elder's policy violated Colorado law and the prisoners held by Elder would suffer irreparable harm by continuing to forfeit their liberty while the case proceeded.

The sheriff said ICE's request to hold someone allows him to do so because of probable cause, court documents say. The ruling explains that because a person's immigration status is a civil matter, not a criminal one, ICE detainers do not apply.

"Accordingly, the ICE forms at issue, at best, provide the Sheriff with probable cause to believe an individual is subject to a civil deportation proceeding, but not with “probable cause to believe an offense was committed.” Thus, a federal officer’s finding that an individual may be removable from the United States does not authorize the Sheriff, under the warrantless-arrest statute, to deprive that individual of liberty."

Bentley said that previous cases indicate keeping someone in custody, who would otherwise be released, is essentially a new arrest, and that ICE detainers are not considered warrants under Colorado law. Therefore, keeping someone in custody makes that a warrantless arrest.

"The ICE forms also raise the issue of whether Sheriff Elder may rely on a federal immigration officer’s finding of probable cause, which is set forth on the form simply by checking a box, without providing meaningful specifics as to the basis for the finding.... Even if the Sheriff personally had information that amounted to probable cause to believe that an individual is removable, he would still lack authority to make a warrantless arrest, since he would still lack probable cause that a crime had been committed."

In a ruling issued late Monday night, Bentley granted the injunction:

"In addition to the warrantless-arrest statute, the legislature has expressly recognized certain other limited circumstances in which the power to detain is appropriate. In each case, a statute spells out the scope and limits of that power. That is appropriate, in light of the fact that there is no greater deprivation of freedom than the taking of a person into confinement. I am reluctant (as was the Massachusetts Supreme Court in the Lunn case, 78 N.E.3d at 1157) to interpret silence in the law as the basis for a heretofore-unrecognized power of arrest."

According to the documents, El Paso is one of two counties that honor ICE requests. The ruling also listed Adams County. If you're wondering about that, Adams County issued a statement Thursday emphasizing that information is inaccurate and they should not have been included in the documents. Their statement included a portion of their policy, which states: "That Adams County Sheriff's Office will not maintain custody of an inmate solely based on an ICE detainer and/or federal administrative warrant."

Read the full ruling here.