by Keith Sanders

On February 22, 2023, a Teller County District Judge in Colorado ruled that the county Sheriff’s Office legally entered into an agreement with U.S. Immigration and Customs Enforcement (“ICE”) that gives the Sheriff’s Office the authority to detain prisoners after they post bond on behalf of ICE. The ruling stemmed from a lawsuit brought by the American Civil Liberties Union (“ALCU”) against Jason Mikesell, Teller County Sheriff.

The suit centers around an agreement between the Teller County Sheriff’s Office (“TCSO”) and U.S. Immigration and Customs Enforcement. Called the 287(g) Agreement of the Immigration and Nationality Act (“INA”), it allows TCSO deputies to act as ICE officials after a period of training, certification, and authorization by ICE. As such, the TCSO deputies, called 287(g) deputies, or Designated Immigration Officers (“DIO”), are “certified to perform immigration functions” with the purpose of identifying and processing prisoners “at the Jail on state or local charges who may be subject to removal under ICE’s civil immigration enforcement priorities.” Essentially, when TCSO deputies act as DIOs, they are acting as federal agents rather than county deputies.

According to the suit, that authority granted to TCSO deputies by the 287(g) Agreement violates Colorado’s Constitution and state statutes. The claims in the suit stem from this alleged violation, specifically the DIOs’ presumed authority to detain individuals after they posted bond for pending criminal charges using ICE forms that were not signed by a judge. The ACLU of Colorado asserted the TCSO does not have legal authority to detain individuals, arguing that the 287(g) Agreement itself is not binding because it allows deputies to perform duties that violate state statutes and the state Constitution.

In the Court’s ruling, District Court Judge Scott Sells first addressed the legality of TCSO’s agreement with ICE, which went into effect in 2019. Referring to INA, 8 U.S.C. §1357(g)(1), the judge noted that the provision explicitly states the “Attorney General may enter into written agreement with a State, or any political subdivision of a State, who is determined to be qualified to perform a function of an Immigration officer ... may carry out such function at the expense of the State.” Thus, Judge Sells ruled the agreement between ICE and Teller County is legally valid, as is the authority delegated to TCSO deputies to act as ICE agents or DIOs that is contained in the agreement.

Next, the judge turned to the illegal detention claims. He noted that Colorado statutes allow a prisoner with multiple Colorado criminal warrants from multiple countries to post bond. For instance, once a prisoner with a warrant from another county posts bond for a case in Teller County, the jail would notify the other county to make arrangements for the prisoner’s transfer, which means the prisoner would remain incarcerated after posting bond. The Court pointed out that the 287(g) process is similar.

That process consists of the DIO filling out an I-247A and I-203 form. The former is merely a tracking document and “has nothing to do with an arrest or for a reason the detain,” the Court observed. The Court also found that the I-203 form is not the “basis for a 287(g) hold of any of the involved inmates in this case.” Form I-203, an Order to Detain or Release Alien, is also placed in the prisoner’s file. The DIO involved acknowledged that none of those forms were signed by a judge.

However, the relevant form, I-200, which is a U.S. Homeland Security warrant, forms the basis for detaining the prisoners. The Court pointed out that the I-200, issued by an ICE official, is a “valid arrest warrant authorized by federal law under 8 U.S.C. §1357(a) and C.F.R. §236.1.” See also 8 U.S.C. §1226(a) and Abel v. United States, 362 U.S. 217 (1960); Lopez v. INS 758 F.2d 1390 (10th Cir. 1985), which states that under federal law an ICE warrant signed by an Immigration Officer is a valid warrant.

Because the Court ruled that TCSO deputies acting as DIOs are in effect de facto federal immigration officers under 287(g), the I-200 warrant is valid, and the TCSO deputies have the authority to issue the I-200 and hold the prisoners. See City of El Cenzio, Texas v. Texas, 890 F.3d 164 (5th Cir. 2018); Chavez v. McFadden, 843 S.E.2d 139 (N.C. 2020).

The ACLU asserted that Colorado statutes regarding state enforcement of civil immigration law does not authorize such an authority when a detainer is based on a request rather than an order (C.R.S. § 26-76.6-102(2) and § 26-76.6-101). While acknowledging the Colorado Legislature could have articulated the statute more clearly, the Court nevertheless concluded that the I-200 is not a request, and therefore, the TCSO deputies’ functions as DIOs are not “prohibited by Colorado law.”

Also, the Court noted that the TCSO Sheriff has “express authority under C.R.S. § 30-10-516 to serve process in civil or criminal cases, which is not limited to service of process of Colorado state cases.” Under federal law (8 C.F.R. §287.5(e)) and Colorado law, TCSO deputies are authorized to serve I-200 warrants.

The Court concluded by stating that since the I-200 is a valid federal arrest warrant by virtue of being signed by supervising ICE officials and issued by TCSO deputies acting as de facto federal agents, it does not need to be signed by a judge. The Court pointed out that “Colorado law does not and cannot invalidate federal arrest warrants.”

Sources: denverpost.com; Nash, et al. v. Mikesell, Case No. 2019CV30051