A federal judge Thursday will hear arguments on whether undocumented immigrants in Colorado who have committed no crimes can be detained without warrants signed by judges.
The civil case filed by the American Civil Liberties Union of Colorado against top officials at the Department of Homeland Security represents four immigrants who were, or still are, detained in Colorado while awaiting deportation hearings. They are seeking class action status.
At issue, the ACLU and other attorneys argue, is that under federal law immigration agents are not granted unfettered authority to make warrantless arrests. In order to detain someone without a warrant signed by a judge, an agent must have probable cause to believe the person being arrested is in the United States in violation of immigration laws and likely to flee and escape before a warrant can be obtained.
ACLU lawyers say their four plaintiffs’ stories, while all different, represent a pattern in the way Immigration and Customs Enforcement agents operate in Colorado.
The four people were arrested and detained without a warrant and without any public evaluation that they were likely to flee before a warrant could be obtained. The four have lived in their communities for years and have long histories of local employment or schooling, and present no likelihood of escape, let alone probable cause for a crime, their lawyers argued in the suit.
One of the plaintiffs is Caroline Dias Goncalves, a University of Utah student who was detained after being stopped on Interstate 70 in Mesa County. She was brought to the United States from Brazil as a child and was in the United States on an expired tourist visa. She had no criminal record when she was detained for more than two weeks. Goncalves has since been released.
The plaintiffs attorneys are seeking a preliminary injunction in a two-day scheduled hearing in front of U.S. District Court Judge R. Brooke Jackson.
Lawyers for the government said in filings that the preliminary injunction would enable the ACLU attorneys to assume control over certain ICE operations in Colorado relating to arrests, training and reporting and that would be inappropriate.
The federal government acknowledges in court documents that although “some” warrantless arrests occur, Denver ICE agents usually conduct targeted operations to arrest undocumented immigrants with warrants. These operations, the federal government said in a court filing, primarily focus on immigrants with final removal orders or serious criminal history.
They also told the court that the Department of Homeland Security agents are trained to assess flight risk of the people they’re detaining. They’re “expected to evaluate, through a consensual encounter, whether there is reason to believe that the person may be in the United States unlawfully as well as whether the person poses a flight risk,” government lawyers said in court documents.
“Determining whether there was a reason to believe an alien was likely to escape before a warrant can be obtained is a nuanced inquiry,” the documents said.
The government also noted that the plaintiffs in the ACLU’s case are not likely to be subject to unlawful warrantless arrests in the future because ICE now has arrest warrants signed by judges for all four of them.
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