June 27, 2019
DENVER – ACLU of Colorado filed suit this morning against Teller County Sheriff Jason Mikesell to challenge his plan to enforce federal immigration law under an agreement with U.S. Immigration and Customs Enforcement (ICE). The ACLU’s lawsuit, on behalf of six Teller County residents and taxpayers, argues that Sheriff Mikesell is diverting their tax money from its intended purpose of enforcing Colorado law in order to fund his unlawful plan to enforce federal immigration law.
The agreement, also known as a 287(g), calls for three Teller County deputies to make immigration arrests and exercise other immigration enforcement powers ordinarily reserved exclusively to federal officers. The Teller County Sheriff’s Office (TCSO) is responsible for the costs and expenses of the program, including paying for the three deputies to attend a four-week training course in South Carolina.
Section 287(g) was added to the federal immigration statute in 1996. It provides that ICE can allow selected local officers to exercise the powers of federal immigration officers at local expense “and to the extent consistent with State and local law.”
“In Colorado, a 287(g) agreement is not consistent with state law,” said ACLU of Colorado Legal Director Mark Silverstein. “Sheriff Mikesell plans to carry out warrantless immigration arrests and detentions that violate the Colorado Constitution as well as a recently enacted Colorado statute.”
In an ACLU class action lawsuit against the El Paso County Sheriff last year, the state district court ruled that when prisoners in a county jail post bond or resolve their criminal cases, the Colorado Constitution requires that the sheriff release them, even when federal immigration authorities suspect the individuals may be removable for civil immigration violations. The court ruled that the sheriff’s practice of holding prisoners past their release date at ICE’s request constituted an unconstitutional warrantless arrest.
The Colorado Legislature codified that court’s ruling with HB19-1124, which Governor Polis signed into law in late May. That statute prohibits Colorado sheriffs from holding prisoners past their release dates at the request of ICE.
“Relying on his 287(g) agreement, Sheriff Mikesell now plans to do exactly what Colorado law expressly forbids: hold prisoners past their release date if they are suspected of immigration violations,” Silverstein added. “An agreement with ICE cannot legally authorize a Colorado peace officer to violate Colorado law.”
Teller County’s 287(g) program would become the only one in Colorado. El Paso County ended its program in 2015, noting that 287(g) agreements have “attracted a wide range of criticism.  Among the concerns, critics say [they] lacked proper Federal oversight, exhausted local resources and ultimately, resulted in the profiling of undocumented immigrants.” In an interview about the termination of the program, the El Paso County Undersheriff said that “it boils down to: ‘Who are we paid to serve and protect?’ It's our community.”
287(g) programs can cost local communities millions of dollars annually. For example, Prince William County, Virginia raised property taxes after its 287(g) program cost $6.4 million in the first year; Harris County, Texas ended its 287(g) program due to cost; and Gwinett County, Georgia is spending an estimated $1.2 million to $3.7 million annually on its 287(g) program.
“These 287(g) programs drain local resources and undermine community trust and safety,” said ACLU of Colorado Staff Attorney Arash Jahanian. “Teller County is walking down a path that has failed communities across the country. The Sheriff’s Office should be serving its community instead of the Trump administration’s anti-immigrant agenda.”
The ACLU is seeking an injunction to stop the Teller County 287(g) program and Sheriff Mikesell’s expenditure of taxpayer dollars to fund it, and a declaration that his enforcement of federal immigration law violates the Colorado Constitution.
Today’s lawsuit was filed in state district court in Teller County. In addition to Silverstein and Jahanian, the legal team includes ACLU Cooperating Attorneys Byeongsook Seo and Stephanie A. Kanan of Snell & Wilmer, LLP.
The ACLU of Colorado is the state’s oldest civil rights organization, protecting and defending the civil rights of all Coloradans through litigation, education and advocacy.