By Annie Kurtz, Staff Attorney
The ACLU of Colorado is taking its lawsuit, Nash v. Mikesell — which challenges the Teller County Sheriff’s 287(g) agreement with the U.S. Immigration and Customs Enforcement (ICE) — to the Colorado Court of Appeals. Sheriff Jason Mikesell’s harmful, anti-immigrant 287(g) program violates state statutes and the Colorado Constitution and exceeds the limited authority of his office. The challenge is brought by people who live in Teller County who are concerned that the Sheriff is violating state law and using their tax dollars to do it. We are asking the court to order him to stop.
What’s the problem?
Sheriff Mikesell’s 287(g) program — so-called because of the section of federal law it relies on — targets immigrants serving time at the Teller County Jail. Under Colorado law, when a person who is incarcerated posts bond, completes their sentence, or otherwise resolves their criminal case, the jail must release them. Sheriff Mikesell’s 287(g) program unlawfully disrupts this required release. When a person targeted under the program becomes eligible for release from jail, the Sheriff relies on his 287(g) agreement to prolong their detention and eventually turn them over to ICE.
How does it work?
Under the Sheriff’s 287(g) program, designated Teller County Jail deputies are trained and certified by ICE to perform certain functions within the jail that are normally reserved for federal immigration officers. That includes accessing ICE databases to investigate the immigration status of anyone booked into the jail who is suspected of being foreign-born. If the local deputy and ICE are interested in the person, the deputy can procure administrative forms from ICE to purportedly authorize the individual’s continued detention for suspected violations of civil immigration law. This allows the Sheriff to refuse to release certain persons after they have become eligible for release, even though those forms only establish suspicion of civil immigration violations, are not warrants under Colorado law, and are not reviewed or signed by a judge.
What’s happening with the lawsuit?
The ACLU took the case to trial in Teller County District Court in late January 2023. The evidence showed that three individuals were detained at the jail under the 287(g) program for days after state law required their release. They were all turned over to ICE.
In a disappointing ruling, a Teller County judge decided there were no legal issues with these prolonged detentions. We believe the judge got the law wrong. We filed our notice of appeal in April and expect briefing to begin at the end of July. Our appellate team includes cooperating counsel Stephen Masciocchi and associate Hannah Armentrout of Holland & Hart, as well as Byeongsook Seo of Snell & Wilmer.