Colo. sheriff won't let consultant finish department assessment until after election

El Paso County Sheriff Bill Elder

A judge ruled Thursday that El Paso County Sheriff Bill Elder has no authority to continue holding inmates in jail if they are eligible for release, even if federal immigration authorities suspect they are in the country illegally.

The move by 4th Judicial District Judge Eric Bentley capped one of two local lawsuits challenging Colorado sheriffs’ power to abide by so-called immigration detainers.

The detainers – issued by the Immigration Customs and Enforcement -- request that inmates suspected of being in the U.S. illegally be held for up to 48 hours beyond their normal release dates to give authorities a chance to take them into custody.

The requests were described by Bentley as a central tool in the government's approach to finding and deporting undocumented immigrants.

In a 31-page decision, however, the judge concludes the practice violates inmates' rights under the Colorado constitution and exceeds sheriffs’ arrest powers under state law.

His ruling bars Elder from honoring the ICE requests, making permanent a temporary injunction the judge approved in April.

“The court ruled that when individuals have posted bond or resolved their criminal case, sheriffs have a clear legal duty to release them,” ACLU of Colorado Legal Director Mark Silverstein said in a statement that praised Bentley’s ruling as “very thorough.”

Sheriff Elder promised an appeal through his spokeswoman, Jacqueline Kirby, who declined further comment.

A spokesman for ICE, Carl Rusnok, said he wasn't prepared to make a comment.

The issue comes as the debate over immigration policy again seized a focus in the U.S., with President Donald Trump redoubling efforts to secure billions of dollars in funding to erect a secure wall at the Mexico border.

Trump, who made securing the border a central promise in his campaign for president, warned of dangers posed by a caravan of Central American migrants seeking refugee status in the U.S., calling it “an invasion of our country.”

In the Pikes Peak region, Bentley’s ruling fell short of resolving an ongoing legal debate over ICE detainers.

The judge’s findings conflicted with those of a different judge in the 4th Judicial District, who came to the opposite conclusion in a similar lawsuit by the ACLU challenging the same practice by the Teller County Sheriff’s Office.

In that case, Judge Lin Billings Vela declined to grant the ACLU’s request for a preliminary injunction barring Teller County Sheriff Jason Mikesell from honoring ICE detainers. The case is pending, but the judge's comments suggest she is poised to hand the ACLU a defeat.

Billings Vela found there is “a legitimate public interest in not obstructing the federal government from enforcing immigration law.”

She wrote in her ruling that the ACLU failed to cite a specific statute that prohibits the sheriff from cooperating with the federal government or to prove that an inmate would suffer “irreparable damage” if he posted bond and was held up to two more days in accordance with the sheriff’s policy.

Billings Vela said the practice fell into an area of “continuously developing law and legal uncertainty” in Colorado, where Elder is the only other sheriff who recently honored the detainers.

Bentley likewise welcomed a definitive ruling by the Colorado Court of Appeals, although he portrayed the issues as clear cut.

“No Colorado statute currently authorizes sheriffs to enforce civil immigration law or even to cooperate with its enforcement,” Bentley wrote.

Most other Colorado sheriffs halted the practice of honoring detainers in 2014 after a letter-writing campaign by the ACLU, which raised constitutional challenges.

The ACLU sued Elder in February on behalf of two people who were held in jail despite trying to post bond through intermediaries. One of them, Saul Cisneros, has a separate lawsuit alleging false imprisonment. He seeks unspecified damages from the four months he served in jail beyond when he was eligible for release.

Cisneros is currently free on an immigration bond and fighting an effort to remove him from the country, Silverstein said.

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