In defending his practice of holding inmates in jail at Immigration and Customs Enforcement’s request, Teller County Sheriff Jason Mikesell told a state judge Wednesday that his job description includes aiding federal law enforcement when they ask for help.
Mikesell was sued in July by the American Civil Liberties Union of Colorado, whose lawyers argue holding inmates beyond their sentences, or after they have posted a cash bond, violates the state’s constitution and is outside the authority of a local sheriff.
"Today we argued that Colorado sheriffs do not have any authority to enforce … federal immigration law," said ACLU’s lead attorney Mark Silverstein. "Being present in the country in violation of federal immigration laws is not a crime and when people post bond, the sheriff has an obligation under Colorado law to release that person."
Sheriff Mikesell disagrees. He has held five people at ICE’s request in the past year, each time for less than 48 hours, because he said the federal requests allow him to do so.
"This is a nationwide issue and there needs to be a decision made on it. We’re not holding people because we want to … These folks who we hold, something triggered the U.S. government to want to hold them," he said, after the proceedings. "If we released everyone the ACLU wanted us to release, I wouldn’t have anyone in my jails."
At issue is whether local sheriffs have any inherent authority or implied powers to help federal immigration authorities when they ask for it. The Colorado ACLU argues the state legislature has limited sheriffs’ authority in other cases — including whether they can issue concealed carry permits.
ACLU lawyers say that holding an undocumented inmate for longer than they should be in jail under Colorado law is the same as the sheriff arresting them again for something else.
"The sheriffs are limited by expressed powers of the state constitution," Silverstein said. "I don’t think the sheriffs have any inherent power, implied power or common law power to arrest people because ICE has asked them to."
Also overarching in this case is whether people here illegally are subject to U.S. constitutional protections. Sheriff Mikesell and Teller County Attorney Paul Hurcomb say illegal immigrants aren’t afforded the same rights as citizens. The ACLU argues the U.S. Supreme Court has said otherwise, and that anyone on U.S. soil is protected by the Constitution.
The defendant in the lawsuit is a man named Leonardo Canseco Salinas. He was arrested in Cripple Creek by a gaming officer after he allegedly sat down at a slot machine that had some money left on it and started playing. The woman who had left the machine returned and argued he stole the money from her.
Mikesell said that Salinas had previous criminal charges in Chicago but declined to say what those were.
"Everybody would like you to think that there is no reason except $8 that this guy is being held," Mikesell said. "This is a chess game that is bigger than one inmate in one jail in one rural county. I don’t care about the $8 this gentleman spent. I care about my community."
Immigration Customs Enforcement issued a statement ahead of the trial saying cooperation with local law enforcement is crucial to doing its job. Officials noted a number of criminals that went on to commit more significant crimes because law enforcement didn’t hold them for longer than their sentences.
Most Colorado counties don’t carry out ICE holds, ACLU lawyers said, but instead honor ICE notifications. The difference is that holds are for beyond a sentence or after someone has posted a bond, while notifications are a simple call to let ICE know when someone is being released from jail.
Sheriff Mikesell allows ICE to use space at his office. Asked why they need to hold people for longer when ICE officials are usually nearby, he said they are overworked in his part of the state and sometimes need a little extra time.
Mikesell said he has never held anyone for ICE for more than 12 hours, but he would honor a 48 hour hold, he said. Before the judge, Mikesell said he has been seeing more undocumented immigrants in his community and he cited legalized recreational marijuana and the problems with drug cartels as the reason.
This isn’t the first case like this in this part of Colorado. Until recently, the El Paso County sheriff was also honoring so-called ICE holds. The ACLU also sued him and a state judge ordered him to release everyone on a hold immediately. The county said it will appeal that decision.
Judge Linda Billings Vela noted Wednesday that this issue was bigger than the proceedings in her courtroom, but she was going to attempt to solve the problems in front of her.
"This is a very, very emotionally wrought national issue and I only am addressing the one small part of it. I have no intention to go past that," she said. "But I appreciate the gravity."
Judge Vela is expected to rule on the case within a week.