ACLU, Colorado sheriff square off in court over ICE holds

Author: Lance Benzel, The Gazette - August 16, 2018 - Updated: August 30, 2018

Teller County Sheriff Jason Miksell (Source: Teller County Sheriff’s Office/Facebook)

The American Civil Liberties Union of Colorado on Wednesday asked a judge to halt the Teller County sheriff’s practice of detaining suspected illegal immigrants who would otherwise be eligible to post bail.

The request for a preliminary injunction comes less than a month after the ACLU sued for the release of inmate Leonardo Canseco Salinas, who is being held at the Teller County jail in Divide on $800 bond on suspicion of two misdemeanors stemming from an alleged theft of $8.

Although Salinas can pay his bail, jailers have said they will not release him because U.S. Immigration and Customs Enforcement (ICE) wants him held to allow for a future transfer to federal custody — a request the lawsuit claims is without a legal basis.It’s the latest flashpoint in Colorado over the legality of ICE’s approach to finding and arresting suspected illegal immigrants who are already in jail.

In March, a judge suspended the same practice at the El Paso County jail based on a similar petition filed by the ACLU on behalf of two suspected illegal immigrants being held at ICE’s request, handing the civil liberties group an early victory.

In that case, 4th Judicial District Judge Eric Bentley found that ACLU would probably win a lawsuit alleging that sheriffs must release people on bond unless they have an overriding warrant or sentencing order signed by a judge. An ICE detention request did not meet that threshold, the judge found.

Despite the injunction, the lawsuit is pending.

Attorneys for El Paso County have called the ICE detainers lawful and denied wrongdoing.

No other sheriffs in Colorado are known to honor the ICE detention requests, making the Pikes Peak region ground zero in the fight over how far Colorado law enforcement agencies may go in assisting federal immigration authorities.

Whether the ACLU prevails in its latest petition falls to 4th Judicial District Judge Lin Billings-Vela, who suggested in court Wednesday that she plans to rule soon whether to grant the preliminary injunction. Canseco’s lawsuit names Teller County Sheriff Jason Mikesell as the sole defendant.

During roughly two hours of arguments, an attorney for Mikesell told the judge that sheriffs were on firm ground honoring the detention requests because the law permits them leeway to provide operational assistance to immigration authorities.

Attorney Paul Hurcomb, who is handling the case on behalf of the Teller County Attorney’s Office, also argued that Canseco doesn’t have the full range of constitutional protections guaranteed to citizens.

Mark Silverstein of the ACLU of Colorado countered that while immigration authorities have “asserted” that Canseco is here illegally, the immigration courts haven’t yet weighed in on his immigration status. Silverstein said sheriffs’ arrest powers are clearly spelled out in state statutes, with no provision for denying bail release to inmates on the basis of a request by federal authorities.

At least one state, Texas, has laws on the books requiring local law enforcement to honor ICE detention requests, but Colorado isn’t one of them.

“In Colorado, when someone posts bond, the sheriff is required to release,” Silverstein said.

Called to the stand to testify about his policies, Mikesell framed the issue as a matter of public safety, telling the court that his county was dealing with an uptick in undocumented workers, which he attributed to the illegal marijuana trade.

Mikesell said after the hearing that he didn’t mean to suggest that Canseco was engaged in marijuana cultivation.

During remarks to the media after the hearing, Mikesell also alluded to prior criminal acts by Canseco but declined to specify what those were.

In a recent statement to the media, Mikesell said that he and other county leaders “will not be forced into being a sanctuary county” or “swayed by bullying tactics.”

Judge Billings-Vela offered little evidence in court how she intended to rule, saying only that she hadn’t pre-judged what she called a “emotional” issue with national interest.

Canseco was arrested July 14 on suspicion of bilking a fellow gambler out of $8.25 at a Cripple Creek Casino. Citing a police report, the ACLU said Canseco started playing a slot machine that had been reserved by another player.

He repaid the money but was arrested by a state gaming officer on two misdemeanors: a gaming violation related to the missing money and a charge alleging he presented a falsified ID card to the officer.

The ACLU of Colorado said numerous Colorado sheriffs in 2014 said they would not honor ICE detainers. That year, the civil rights organization negotiated a $30,000 settlement with Arapahoe County on behalf of Claudia Valdez, a domestic violence victim who was held for three days under an ICE detainer until a judge ordered her release

Lance Benzel, The Gazette

Lance Benzel, The Gazette