El Paso County sheriff can't hold inmates for ICE after they post bond, judge rules

DENVER – A Colorado District Court judge ruled late Monday that the El Paso County Sheriff’s Office can’t hold people in jail who have already paid their criminal bond just because federal immigration officials have requested they be held.

The decision from Judge Eric Bentley came just before midnight. The American Civil Liberties Union of Colorado filed a class action lawsuit against El Paso County Sheriff Bill Elder in late February alleging he and jailers had held prisoners for up to months on end after they had posted bond and were set to be released.

U.S. Immigration and Customs Enforcement (ICE) will often place holds or detainers on people suspected of being in the country illegally who have also been arrested by local agencies.

After a host of judges in various states said that sheriffs couldn’t hold inmates solely on the behalf of ICE, all of the state’s sheriffs except Elder said they would stop doing so.

The ACLU sought a preliminary injunction in their latest court battle, arguing that the prisoners were suffering “irreparable harm” by continuing to be held in the county jail.

Last week, according to court filings, the sheriff’s office changed its procedures so that any inmates set to be released by the jail would be in federal custody after ICE faxed over the immigration detainer and administrative warrant, in addition to an agent appearing in person. But they would still be housed in the county jail for 48 more hours before officially being in ICE custody, according to the filings.

In his judgment, Bentley wrote that such ICE detainers do not constitute a warrant under state law because the forms aren’t signed by judges. He said that that were the state to pass a statute authorizing local agencies to work with ICE detainers or if Elder was to enter into a formal written agreement with ICE, the arrests might be considered warranted.

Elder had argued previously that the sheriff’s office was following procedures it signed in a contract with ICE in 2007, though the most recent agreement was signed in 2013 and terminated in 2015, according to court records.

Similarly, the judge found that a preliminary injunction would be warranted to “preserve the status quo and protect Plaintiffs’ rights” because they were suffering “real, immediate and irreparable injury” by not being released from the jail despite posting bond.

“Were I to interpret ‘last uncontested status’ the way the Sheriff urges – namely, to preserve his longstanding policy of honoring ICE holds – then it is hard to imagine how any plaintiff in this context could obtain relief,” Judge Bentley wrote. “Such a ruling would not be consistent with fundamental equity.”

“Colorado sheriffs swear an oath to the Constitution, not to ICE,” said ACLU-Colorado Legal Director Mark Silverstein in a statement. “Federal immigration authorities are attempting to co-opt sheriffs’ limited resources for their aggressive deportation agenda, but they cannot do so at the expense of individual liberties of Colorado law.”

Elder and the sheriff’s office did not immediately return a request for comment Tuesday morning. The plaintiffs in the case will be released pending their next court appearances, according to the judge's order.

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