Teller County Sheriff Jason Mikesell, left, and El Paso County Sheriff Bill Elder.

Allison Sherry/CPR News

Undocumented immigrants arrested in El Paso County and neighboring Teller County would be treated differently in jail if ICE was interested in them -- thanks to two state judges who disagree about whether sheriffs have legal authority to hold people for federal immigration authorities.

At issue is whether local sheriffs can honor so-called Immigration and Customs Enforcement “holds” -- when immigration authorities ask local police to hold someone for up to 48 hours longer than their sentence or after he or she has posted a cash bond at ICE’s request.

Normally, this is for time. ICE, which has limited resources in a sprawling state, said they sometimes need two days to get to a jail and pick up someone when they are being discharged by local officials.

“Nationwide, we have seen too many examples of the terrible crimes that some aliens have committed after ICE detainers were not honored,” ICE spokesman Carl Rusnok said in a statement. “ICE’s position is that the U.S. and Colorado constitutions both allow local officials to detain aliens in response to federal detainer requests.”

ACLU lawyers disagree with this -- at least when it comes to state law.

Both El Paso and Teller sheriffs were honoring ICE holds earlier this year. A minister in Colorado Springs attempted to post a bond for a woman being held in jail, but because ICE asked deputies to hold her, authorities told the minister the woman would not be released.

“I felt like my rights were being violated,” said Siena Mann, an immigrant activist in Colorado Springs, who went with the minister to help the undocumented woman in jail. “Her rights were obviously being violated … as a citizen that’s an incredibly disempowering feeling.”

The ACLU sued El Paso County Sheriff Bill Elder and Teller County Sheriff Jason Mikesell on the grounds that local sheriffs don’t have any authority under state statute to enforce immigration law.

Both cases landed in state court in the same courthouse, a few months apart.

Judge Eric Bentley in the El Paso case ordered a preliminary injunction, which means El Paso had to immediately halt holding people for ICE. Judge Linda Billings-Vela, in the Teller County case, did not which means Mikesell continues to honor ICE holds.

“Our highest court has never made a decision or ruling on whether sheriffs can or can't,” Mikesell said. “I think it comes down to someone having to take a stance to do that. A lot of agencies have settled these cases with the ACLU. And here's the thing I've learned about the ACLU, if we settle with them, they'll keep coming after us.”

The El Paso case is back in state court in a few weeks. ACLU attorneys are asking the same judge to grant a permanent order prohibiting Sheriff Elder from holding people for ICE.

Lawyers say they hope if the permanent order is granted -- sheriffs across the state will honor it.

“We’re hoping we have a final judgment and we’re hoping the final judgment will be a comprehensive, written ruling … that would persuade the sheriffs statewide,” said Mark Silverstein, legal director of the ACLU of Colorado.

Both sheriffs talk hopefully about the issue going to a higher court because they say they want clarity -- in this case it would be the state’s Court of Appeals.

“One way or the other we need a pressing answer,” said El Paso Sheriff Elder. “I believe this has ramifications throughout Colorado. Many different sheriffs offices, jails, operate in different fashions.”

Mikesell said most undocumented people who come in contact with his deputies are of  no interest to ICE.

“Those are just good family people that make mistakes, just like a US citizen who makes a mistake,” Mikesell said. “On the other side, I do have bad people that the US government does want to hold that should not have the right to be here if they're going to commit crimes against US citizens."