The ACLU of Colorado lawsuit against Teller County Sheriff Jason Mikesell

Under 8 U.S. Code § 1357, Powers of immigration officers and employees, U.S. Immigration and Customs Enforcement (ICE) is authorized to delegate immigration law enforcement functions to any state or to one of its political subdivisions.

These laws defining the powers of immigration officers were enacted as Section 287(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That is why delegation of authority agreements are called 287(g) Programs.

As of July 2019, a total of 89 such agreements with 22 states were in-force. ICE had exactly one 287(g) agreement in Colorado; that was with the Teller County Sheriff's Office.

This is how 8 U.S. Code § 1357 section (g), Performance of immigration officer functions by State officers and employees begins:

Notwithstanding section 1342 of title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.

The section concludes with to the extent consistent with State and local law. ICE can't make an agreement that would require a local police officer to violate the laws of the state in which he is employed. Surely, the intention was not to permit a state to enact legislation forbidding the making of 287(g) agreements, contradicting and somehow nullifying existing federal law.

That cannot be, due to the Supremacy Clause of the U.S. Constitution, which makes the constitution the supreme law of the land, thereby prohibiting states from interfering with the federal government's exercise of its constitutional powers.

The ICE 287(g) agreement with Teller County

On January 6, 2019, a Memorandum of Agreement establishing a 287(g) program in Teller County was signed. Under this agreement, ICE acquired the ability to delegate, to personnel in the Teller County Sheriff's Office, authority to perform the following federal immigration law enforcement functions:

  • Interrogate any detained person who the officer believes to be an alien regarding his right to be in the United States
  • Serve warrants of arrest for immigration violations
  • Take fingerprints and photographs, interview aliens, prepare affidavits and take sworn statements for ICE supervisory review
  • Prepare charging documents for the signature of an ICE officer
  • Issue immigration detainers, which authorize the county jail to temporarily hold detainees for pickup by ICE agents
  • Detain and transport arrested aliens subject to removal to ICE detention facilities.

Under the agreement, the Teller County Sheriff's Office accepted responsibility for the following costs and expenditures:

  • Personnel expenses, including salaries and benefits, local transportation, and official issue material
  • Travel, housing, and per diem expenses associated with training required for participation in the 287(g) agreement
  • Expenses at the sheriff's office facility resulting from cabling and power upgrades
  • Office supplies and necessary security equipment.

HB19-1124: ‘Protect Colorado Residents From Federal Government Overreach’

Ten days after the 287(g) agreement with the Teller County Sheriff's Office was signed, legislation designed to “outlaw” such agreements was introduced in the Colorado House of Representatives. HB19-1124, Protect Colorado Residents From Federal Government Overreach, signed into law by Governor Jared Polis on May 28, 2019, opens with the following attempt to execute an evasive maneuver around the Supremacy Clause:

The federal government does not have the authority to command state or local officials to enforce or administer a federal regulatory program, as doing so would violate the tenth amendment of the United States constitution.

This is the Tenth Amendment to the U.S. Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

This requires somehow proving that the authors of the Bill of Rights reserved to the states a right to prevent their own agents from participating in the enforcement of federal law, which itself derives validity from the very document that the Bill of Rights amends.

The ACLU lawsuit against Teller County Sheriff Jason Mikesell

On June 27, 2019, almost exactly one month after the enactment of HB19-1124, American Civil Liberties Union attorneys acting on behalf of seven plaintiffs filed a lawsuit against Sheriff Jason Mikesell, in the Teller County District Court.

The plaintiffs are needed because the ACLU itself lacks standing in the case, meaning they cannot demonstrate that the law being challenged does sufficient harm to their own selves, to support their participation in the lawsuit as plaintiffs.

The lawsuit complains that Sheriff Jason Mikesell detains illegal aliens on behalf of ICE in violation of the Colorado Constitution and in direct violation of a recently-enacted Colorado statute that specifically prohibits law enforcement form [sic] extending a person’s detention for immigration purposes. They are referring to HB19-1124.

This is how the plaintiffs, all residents of Teller County, claim standing in the case: In pursuit of this plan for illegal arrests and detentions, Sheriff Mikesell is diverting taxpayer funds and taxpayer resources from their intended purposes in order to pay for and launch an unlawful program that he lacks Colorado authority to carry out.

The ACLU, by way of the plaintiffs, seeks a declaratory judgment and a permanent injunction against Teller County's 287(g) program.

Then they would check and make sure that the neighborhoods they live in aren't about to be inundated by the tide of illegal immigration they're helping to create, having made darn sure that county jails aren't handing alien criminals over to ICE for deportation.

The motion to dismiss

Soon after the lawsuit was filed, the sheriff drafted a motion to dismiss the suit, arguing that Teller County's 287(g) agreement is perfectly legal. District Court Judge Scott Sells recently held a hearing dealing with the motion to dismiss. After hearing both sides, the judge decided that he needed three to five weeks to come up with a written decision regarding whether to accept or reject the motion.

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