DENVER – Several Colorado agencies are named in the first weekly report issued by federal immigration authorities that documents where undocumented immigrants committed crimes and which local law enforcement agencies allegedly failed to comply with immigration detainers.
But the report is already raising eyebrows among the agencies in Colorado, as well as other in other cities across the country, who say the report from the Department of Homeland Security gets some of the data wrong and falsely accuses them of not honoring federal law in the latest fight over “sanctuary city” status.
At issue is the time period in which a local agency can hold someone on an immigration detainer, which is a request from federal authorities and not a judge-approved order that local authorities need to adhere to.
Report cites Boulder Co., Denver, Broomfield, Weld Co. for alleged violations
The report covers the week of Jan. 28 to Feb. 3 and shows that Immigration and Customs Enforcement (ICE) doled out 3,083 detainers to local agencies for undocumented immigrants and permanent residents subject to deportation under Trump’s executive order.
The order, “Enhancing Public Safety in the Interior of the United States,” says that people living in the country illegally can be deported even if they are suspected or charged with a crime.
Of the detainers, the report documents just 206 instances in which law enforcement agencies were deemed to not have complied with the orders.
Of those, 11 cases were in Colorado: six in Boulder County; one in Denver; three in Broomfield and one in Weld County.
The report alleges that Boulder County declined the six pending detainers on Jan. 31, which had all been issued between August 2015 and December 2016. Of the six people who saw their detainers declined, three were convicted of assault, one was convicted of burglary, one was charged with cocaine possession and another was charged with possession of dangerous drugs.
Denver’s detainer was issued in December 2016 and applied to a person convicted of DUI. It was declined on Jan. 29, according to the report.
The Broomfield Detention Center is listed three times in the report, which says the jail declined all three detainers on Jan. 31 – two for people convicted of DUI last year and another convicted of forgery on Jan. 20.
And the Weld County jail is the final Colorado jail on the list, which reports that the jail on Feb. 3 declined a detainer issued in December for a person charged with violating a court order.
Of the 11 cases, 10 involved Mexican nationals and one involved a native of El Salvador.
Colorado authorities question report, citing recent federal cases
“When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect the public safety and carry out its mission,” said Acting ICE Director Thomas Homan in a statement announcing the first report. “Our goal is to build cooperative, respectful relationships with our law enforcement partners.”
But some of those law enforcement partners are already questioning some of the language in the report.
Though the city of Boulder adopted an ordinance earlier this year that it is a “sanctuary city,” the ordinance specifically allows city employees to obey lawful orders and assist in investigations of criminal activity. But it bans cooperation with federal agencies “with respect to any investigation of a person’s immigration status.”
And though both Denver and Aurora’s mayors have said their cities are not sanctuary cities, they both have said that their officers are in line with state, local and federal laws and in compliance with the new ICE guidelines.
The Aurora Detention Center is listed in the report as being one of the facilities that “will not honor ICE detainer.” But they facility is only a municipal facility and is only allowed to hold people for a maximum of three days. Honoring any ICE detainer request beyond that holding time would be in violation of the U.S. Constitution’s Fourth Amendment – an issue expressed by most Colorado jurisdictions.
“Aurora has consistently cooperated, within lawful and constitutional bounds, with ICE’s efforts to contact and detain undocumented individuals who pose a threat to public safety," city spokesman Abraham Morales said. "As such, we believe ICE’s new report on enforcement and removal operations does not reflect Aurora’s collaboration with ICE so we are reaching out to them to make this correction.”
The Ninth Circuit Court of Appeals ruled in 2014 that immigration detainers were merely requests, as the new report notes in its FAQs, and that people could not be held beyond the statutory limit without a signed warrant or the existence of probable cause. At least two other courts have also ruled recently that local agencies could be subject to civil rights violations for holding people on Ice detainers.
The American Civil Liberties Union slammed the ICE report on Tuesday, citing the recent court decisions, some of which involved ACLU lawyers.
Issues between DHS report, local law
Trump’s executive order allows the DHS secretary to review and determine whether or not each jurisdiction is a sanctuary jurisdiction – whether local officials judge it that way or not.
The timing of the notification on detainers and the time in which local agencies are allowed to hold suspects are one of several issues local agencies have brought up in regards to the report, however, as the report itself notes.
“At present, ICE does not document, in a systematically reportable manner, the immigration status of an alien at the time of detainer issuance,” the report says. “ICE sends detainers to law enforcement agencies, which requests aliens be turned over to ICE prior to release, if ICE possesses probable cause to believe that the alien is removable from the United States.”
This passage poses some problems from local law enforcement agencies in Colorado. In 2014, Colorado became the first state to reject detainer requests to its county jails from ICE after it sometimes asked jails to hold people for up to five days beyond when they should have been released.
And Denver is among several jurisdictions in the state where authorities say they will honor legal detainer requests from ICE, but will not actively help in locating and prosecuting people solely on the basis of their immigration status.
“Denver does not shield criminals, and we will always honor federal warrants. We're focused on enacting policies and practices that protect people’s safety and their rights, including the rights of immigrants, while allowing federal authorities to focus on immigration enforcement that removes dangerous and violent felons from our streets,” Simon Crittle, a spokesman for the Denver Sheriff Department, told Denver7. “We should all focus on creating a system where federal and local governments respect each other’s respective roles and work together to eliminate any gaps.”
There has already been at least one spat between DSD and ICE over the matter since late last year.
ICE accused DSD of not complying with a detainer on a man who was then accused of aggravated auto theft and vehicular eluding charges. It said that DSD, which runs the jail, never notified ICE of Ever Valles’ pending release. But DSD had proof it had, though ICE never relented on its accusation. Valles later allegedly shot and killed a man during a robbery at a Denver light rail station.
Boulder County, which runs the jail, also maintains that it has no constitutional or statutory authority to enforce federal immigration rules, and that it is in line with federal law despite the city’s sanctuary city proclamation.
“Immigration enforcement is the responsibility of the federal government, not local authorities. The Sheriff’s Office has no statutory or constitutional authority to enforce immigration laws, nor do we seek it. Our philosophy has been to build trust with minority communities, and to encourage the reporting of crimes and protection of residents regardless of immigration status,” Sheriff Joe Pelle told Denver7.
He said that aside from a judge- or magistrate-reviewed and signed warrant, that his agency could be liable to punishment if it aids federal immigration authorities beyond that.
“We fully cooperate with Ice on sharing information about the inmates in our jail and their release dates,” Pelle added. “We are not sure how a presidential directive might override the rulings already made in federal court in several districts, and until those issues are settled, we will continue to follow our current policy.”
President Trump has said that sanctuary cities and states stand to have all their federal funding stripped if they continue to be “noncompliant” with the new immigration executive orders, though Monday’s report makes clear that DHS is still trying to figure out exactly how to facilitate such moves.
The report even details that some of the data contained within it may be subject to different interpretations by the agency and federal authorities, as may have been the case in the incident between DSD and ICE regarding Valles.
“This report may reflect instances in which the [law enforcement agency (LEA)] may have technically provided notification to ICE in advance of an alien’s release, but where the LEA did not provide sufficient advance notification for ICE to arrange the transfer of custody prior to release due to geographic limitations, response times, or other logistical reasons,” the report states. “In these instances ICE records the detainer as declined by the LEA.”
Denver immigration lawyer Hans Meyer called the ICE report a “false narrative” that was a “stunning piece of propaganda.”
“ICE’s report is a huckster's attempt to bully local jurisdictions who have passed policies limiting detainers, but those cities should stand proud knowing that they are defending constitutional rights,” Meyer said. “ICE needs to stop playing like a junior varsity squad and comply with the Fourth Amendment, just like every other law enforcement agency in the country.”
The Weld County Sheriff’s Office said it was still reviewing the new report and the incident it was cited for in the report.
“The Weld County Sheriff’s Office is looking into this incident,” said Weld County Sheriff’s Office Corporal Matt Turner. “Once we know more information, we’ll communicate that with the community.”
A spokesperson for the city of Broomfield said all three cases involved the detention center notifying ICE ahead of time, but ICE did not come pick the people up in time.
The ICE reports are expected to be published each week in accordance with the new executive order.
It also came a day before Denver proclaimed March 21 to be an immigration day of action.