COLORADO SPRINGS — El Paso County’s sheriff is renewing his deal to jail suspected undocumented immigrants for federal officials, despite the high-profile legal battle prompted by that pact.
County commissioners on Tuesday unanimously approved a one-year extension of that agreement with Immigration and Customs Enforcement.
It allows the Sheriff’s Office to detain people solely on a request by ICE, though a judge has ordered that practice be suspended pending a lawsuit that the American Civil Liberties Union of Colorado filed Feb. 27.
The ACLU sued Sheriff Bill Elder on behalf of two inmates. The suit says the Sheriff’s Office has jailed people illegally “for days, weeks, even months” after they posted bond or resolved their cases, because ICE asked that they be detained without providing a warrant signed by a judge.
On March 20, 4th Judicial District Judge Eric Bentley granted a preliminary injunction, ordering the Sheriff’s Office to honor bonds for ACLU clients Saul Cisneros and Rut Noemi Chavez Rodriguez, who would have been eligible for release if ICE hadn’t asked for them to be detained.
Sheriff’s officials said they renewed the contract in hopes of getting clarification on the legality of such detainments over the next year – either from a judge or the federal government.
The county has expressed disappointment in ICE, saying it has not provided the legal support promised in the contract, which took effect in 2008 and generated millions of dollars under ex-Sheriff Terry Maketa.
But Elder said the intergovernmental service agreement is a “worthwhile partnership.”
“It’s a valuable tool,” he said. “It’s a way for us to keep illegal immigrants from walking the streets once they’ve been charged with a crime.”
The county’s decision to renew the arrangement comes about a month before the June 26 primary election, in which Elder faces a Republican challenger who has accused Elder of having lax immigration policies.
That candidate, retired Air Force Col. Mike Angley, has vowed that he would reinstate a federal effort to train deputies to act as immigration officers.
The county discontinued that 287(g) program amid concerns that it led to racial profiling and drained local resources. Elder reiterated Tuesday that his office has no plans to reinstate it.
But , he said, renewal of the ICE agreement shows support for the immigration policies of President Donald Trump, who promised to deport millions of undocumented immigrants and ramped up enforcement by executive order during his first month in office.
If the federal government did crack down on illegal immigration and relied on local jails for bed space, the agreement with ICE positions the Sheriff’s Office to help.
“That’s why it’s important for me to keep this IGSA in place – so that if and when they need someone, we are capable of fulfilling that need when others can’t,” Elder said.
In a May 15 legal filing, the ACLU specified that it isn’t “challenging the validity of the IGSA” or claiming the sheriff must stop jailing detainees brought in by ICE.
Rather, the sheriff does not have the authority to detain someone at ICE’s request after the person’s case brought by local law enforcement has been resolved or the detainee has posted bond, the ACLU says.
An ACLU spokesman said he couldn’t comment Tuesday night.
Because of the preliminary injunction, the once-lucrative contract isn’t expected to generate much revenue until the lawsuit is resolved.
For the past two years, Elder said, the Sheriff’s Office hasn’t jailed detainees brought in by ICE from elsewhere because of jail overcrowding.
ICE paid the county more than $11 million from 2008 to 2015 to jail detainees, but that windfall has dwindled amid record jail populations.
The county took in about $7,000 through August last year, compared with a high of nearly $2.7 million in 2009, Sheriff’s Office records show.
The county appealed Bentley’s ruling to the Colorado Supreme Court, asking for the preliminary injunction to be lifted while the case is pending, but the state’s highest court declined last month to hear the appeal.
On May 1, the judge granted an ACLU motion to modify the complaint into a class-action suit, so others taken into custody by the Sheriff’s Office and held at ICE’s request can be represented in the lawsuit.
A tentative trial date has been set for December, said Senior Assistant County Attorney Lisa Kirkman.
The U.S. Department of Justice filed a statement of interest with the judge, arguing the county’s position, Kirkman said. But the federal government has not offered to represent or indemnify the county.
“They have offered some support, but not what we wanted,” she said.
Carl Rusnok, a regional spokesman for ICE’s Denver office, told The Gazette at 3:30 p.m. that he did not have time to prepare a comment.
The Sheriff’s Office still notifies ICE before releasing people in whom that agency has expressed interest, allowing ICE to take them into custody upon their release, Kirkman said.