DENVER - Denver is joining a growing list of Colorado counties that will no longer honor immigration hold requests from U.S. Immigration and Customs Enforcement, unless the requests are accompanied by criminal warrants.
"In recent weeks, federal courts in two separate jurisdictions have ruled that a county sheriff department is potentially liable for a Fourth Amendment violation when the county jail holds a prisoner in custody solely on the basis of an immigration detainer," Denver Sheriff Gary Wilson said in a news release. "After consultation with the City Attorney, I have concluded that a change in our policy is in order."
The announcement comes after an extended effort by the American Civil Liberties Union to get county sheriffs in Colorado to change their policies.
So far, sheriffs in Boulder, San Miguel, Mesa, Routt, Grand, Jefferson and Adams Counties either have or are in the process of doing so.
Wilson said, "Effective immediately, the Denver Sheriff Department will no longer honor a request in an I-247 detainer that DSD maintain a person in custody 'beyond the time when the subject would have otherwise been released,' unless the detainer is accompanied by a criminal warrant or some other form that gives DSD legal authority to hold the requested person."
"(A detainer request is) the legal equivalent of asking the sheriff to make a new arrest," said ACLU Legal Director Mark Silverstein. "To make the 'new' arrest, a sheriff needs adequate grounds. We don't think that the detainer furnishes adequate grounds."
Silverstein says a huge percentage of detainer requests are against people with minor records or no record at all.
"Thirty nine percent had no record," he said.
Silverstein says ICE issues detainer requests whenever officials believe somebody might be deportable.
"It's important to remember," Silverstein said, "that being in the country in violation of immigration laws is NOT a crime… Ice handles those deportations not through criminal proceedings, but through deportation proceedings which are civil proceedings."
University of Colorado Law Professor Violeta Chapin says those proceedings can have a devastating and disproportionate impact on the immigrants and their families.
"Many times, we've had clients living and working here for years. They get roped into the criminal justice system. Criminal charges get dismissed entirely, yet they're still dragged over to the Immigration Detention Center, because of the detainers, and then are held for weeks or months and are deported because they can't afford an attorney. It's been absolutely devastating to see this happen."
When asked about community anger against undocumented immigrants who have been involved in fatal car crashes while driving drunk, after previous arrests related to traffic violations, Silverstein said, "When there is evidence that people who are brought into the criminal justice system are guilty of a serious crime, the criminal justice system deals with them. If they are convicted, they are going to go to the penitentiary for a very long time."
Silverstein told 7NEWS that he doesn't know that people who are here without papers engage in drunk driving any more than people who are here with papers.
"We can't predict when somebody is going to commit a crime in the future," he said. "And fortunately, we don't have a legal system that tries to predict that and tries to incarcerate people before they commit a crime."
Immigration Law attorney Hans Meyer said there are multiple ways of enforcing the law while still respecting the constitution.
"Today is a great day to be a defender of the Constitution," Meyer said.
ICE officials says they are aware the decisions by several Colorado sheriffs.
They sent a statement to 7NEWS that says:
"U.S. Immigration and Customs Enforcement (ICE) will continue to work cooperatively with law enforcement partners throughout Colorado as the agency seeks to enforce its priorities by identifying and removing convicted criminals and others who are public safety threats."
ICE officials say they place detainers on individuals arrested on criminal charges to ensure that dangerous criminals are not released from prisons or jails and into our communities, as well as on other priorities for immigration enforcement. The release of a serious criminal offender to the community, rather than to ICE custody, undermines ICE's ability to protect public safety and impedes us from enforcing the nation's immigration laws.
The release of a serious criminal offender to the community, rather than to ICE custody, also creates an officer safety issue when ICE officers have to attempt to apprehend the most serious offenders outside a controlled penal setting.
But Silverstein says placing a hold on the m any people who are not serious criminals "undermines public safety."
He says if somebody without papers witnesses a crime and knows that talking to police might lead investigators to look up an old, minor warrant that could land them in jail, they might worry that that would be a straight pipeline to deportation proceedings, so the response is going to be, "better not call police."
Silverstein says Denver gets 3,000 detainer requests a year and that most were processed as a "command" by the federal government to obey, not as a simple request.
Denver City Councilman Paul Lopez applauded the Sheriff Department's decision to no longer honor the detainer requests without a criminal warrant.
"We cannot wait for (Washington) D.C. to write our community safety laws," he said.