Colorado Sanctuary Statutes Under Fire

December 18, 2023

Attorneys group shows sheriffs may cooperate with ICE

WASHINGTON—Attorneys United for a Secure America (AUSA), a project of the Immigration Reform Law Institute (IRLI), has filed a brief on behalf of Advocates for Victims of Illegal Alien Crime (AVIAC) in the Colorado Court of Appeals.

The case concerns whether local law enforcement can enter into 287(g) agreements with Immigration and Customs Enforcement (ICE) to detain criminal illegal aliens, or whether doing so conflicts with Colorado statutes that require a local judge to sign an arrest warrant. Law enforcement that ICE has trained under section 287(g) of federal immigration law are deputized federal immigration officers who have the authority to detain aliens without the need for a local judge to sign a warrant.

The state trial court had ruled that the law enforcement officer AUSA supports, Sheriff Mikesell, lawfully entered into 287(g) agreements with ICE, and did not require a judicial warrant, because federal immigration law supersedes state law.

AUSA supports the trial court’s position in this appeal. Under the Fourth Amendment to the Constitution, detentions pursuant to 287(g) meet the requirement that seizures be “reasonable,” even without a warrant from a judge. The amendment requires that all warrants be supported by probable cause, but does not require a warrant in order for detention pursuant to civil immigration law, supported by probable cause, to be reasonable.  

“Those politicians and law enforcement agents who protect criminal illegal aliens from deportation should be held accountable when those same people commit additional crimes,” said Donald Rosenberg of AVIAC. “Had the 287(g) program been in effect throughout the country just over the past decade, tens of thousands of women and children would never have been sexually assaulted or raped, and thousands of American citizens and immigrants would be alive today. Protecting criminals is a crime.”

“Failure to detain and remove criminal illegal aliens, especially during the current border crisis, enables dangerous criminals to enter, re-enter, and remain in the United States, where they will harm citizens and noncitizens alike,” said Dale L. Wilcox, executive director and general counsel of IRLI. “As AUSA’s brief shows, the use of 287(g) agreements to detain illegal alien criminals until removed back to their country after serving time for their crime is valid under federal immigration law, which is part of the supreme law of the land, and should not be undermined by a simplistic misreading of the Constitution.” 

The case is Nash v. Mikesell, No. 23CA-589 (Co. Ct. of Appeals).