The ACLU of Colorado on Tuesday filed a class action lawsuit against El Paso County Sheriff Bill Elder, accusing him of illegally detaining prisoners at the request of federal immigration authorities.
According to the suit, defendants Saul Cisneros and Rut Chavez have been held in the El Paso jail awaiting trial since November. Cisneros made bail, set at $2,000, shortly after his arrest, but was held on at the request of Immigrations and Customs Enforcement, or ICE. Chavez’s wife and pastor have been told that Chavez will not be released on the $1,000 bond set by the El Paso County District Court, also because of an “ICE hold.”
As a rule, Colorado sheriffs do not honor ICE requests to hold anyone beyond their release date without a warrant. In 2014, a federal judge ruled that doing so was a violation of the Fourth Amendment. That same year, the ACLU reported that all counties in Colorado had agreed not to comply with these holds, also known as detainers.
Last February, Jacqueline Kirby, spokeswoman for the El Paso County Sheriff’s office, said that the county is no exception. But in a statement released Tuesday, Sheriff Elder said, “If the criminal is unlawfully present, [the El Paso County Sheriff’s Office] honors the detainer filed by ICE and requires ICE to pick up the inmate within a reasonable period of time.”
The ACLU is alleging that Elder has “unlawfully imprisoned dozens of individuals for days, weeks, and even months, without a warrant, without probable cause of a crime, and without any other valid legal authority, solely on the ground that ICE suspects that they are subject to deportation for civil immigration violations.”
ACLU of Colorado Legal Director Mark Silverstein said, “When individuals have posted bond or resolved their criminal case, Colorado law requires that Sheriff Elder release them.”
The ACLU suit claims that Elder is holding arrestees beyond their release dates under what it calls “a new kind of arrangement” with ICE.
Under this arrangement, ICE signs a contract with a local jail, agreeing to pay a daily rate in exchange for the jail housing federal detainees. When ICE is interested in a prisoner, the suit claims, officials fax or email three forms (none of which are signed by a judge) to the jail. Then, at least as ICE sees it, the detainee becomes a federal prisoner in ICE custody. ICE was not able to provide comment to The Colorado Independent in time for publication.
But the ACLU argues that this practice is unlawful.
“The new arrangement does not change the fact that when Sheriff Elder holds a prisoner for ICE, it is he, not ICE, who is making a new arrest, one that he has no legal authority to make,” the ACLU said. “ICE does not transform a prisoner from state to federal custody by sending a fax or an email.”
Elder said in a statement that he cannot comment on pending litigation, but confirmed in his statement that El Paso County “maintains an Intergovernmental Agreement with ICE, agreeing to hold their in-custody foreign born immigrants who are awaiting deportation,” and that the sheriff’s office is reimbursed for the costs of housing these immigrants.
He added, “Make no mistake, we have and will continue to fully cooperate with Immigration and Customs Enforcement (ICE). ICE itself agrees that we fully cooperate!”
The lawsuit seeks a declaratory judgment and an injunction on behalf of all current and future prisoners who are the subject of ICE detainers.
According to the complaint, nearly two hundred people were subject to ICE holds in the El Paso County Jail last year.
