Nash v. Mikesell.
2024 COA 68. No. 23CA0589. Immigration—Delegation of Immigration Authority—287(g) Agreement—State Enforcement of Civil Immigration Law—Civil Immigration Detainers—Injunctive Relief.
July 3, 2024
Pursuant to 8 USC § 1357(g), the Teller County Sheriff’s Office (TCSO) entered into an agreement with US Immigration and Customs Enforcement (ICE) (TCSO’s 287(g) agreement) under which ICE delegated authority to TCSO to perform certain immigration enforcement functions under a jail enforcement model. Four TCSO deputies completed training and were certified by ICE to act as designated immigration officers (DIOs), and they exercised their duties several times, including by arresting on ICE’s behalf three people housed at the Teller County Jail after they were eligible for release from state custody. Plaintiffs are Teller County taxpayers who filed a complaint seeking declaratory and injunctive relief regarding Teller County Sheriff Mikesell’s authority to enter into TCSO’s 287(g) agreement with ICE. Plaintiffs requested declaratory relief establishing that TCSO’s Agreement violates Colo. Const. art. II, §§ 7 and 19, and CRS § 24-76.6-102; and enjoining Sheriff Mikesell and TCSO from continuing to arrest and detain people under TCSO’s 287(g) agreement. Sheriff Mikesell counterclaimed for a declaratory judgment that he was authorized to enter into TCSO’s 287(g) agreement and that TCSO’s performance of duties under that agreement complies with Colorado law. The district court granted Sheriff Mikesell’s and denied plaintiffs’ claims for declaratory judgment.
On appeal, plaintiffs argued that certain activities carried out under TCSO’s 287(g) agreement are prohibited by CRS §§ 24-76.6-101 and -102, or Colo. Const. art. II, §§ 7 and 19. Section 24-76.6-101 defines a “civil immigration detainer” as a written request from federal immigration enforcement authorities to law enforcement officers, pursuant to 8 CFR 287.7, to keep an individual in custody beyond the time when such person is eligible for release from custody. Section 24-76.6-102 provides, in part, that requests for civil immigration detainers are not warrants under Colorado law, and it prohibits law enforcement officers from arresting or detaining individuals on the basis of a civil immigration detainer request. A “287(g) agreement” is a written agreement between ICE and a state, or any political subdivision of a state, under which ICE trains and certifies local law enforcement officers to perform certain immigration enforcement functions under ICE supervision. Participation in a 287(g) agreement by either the federal government or a state is voluntary, and compliance with local law is a condition precedent to local law enforcement’s performance of immigration enforcement functions under a 287(g) agreement. The court of appeals held that CRS §§ 24-76.6-101 and -102 are not preempted by 8 USC § 1357(g)(1), and a 287(g) agreement must comply with Colorado statutory law; and that CRS §§ 24-76.6-101 and -102 prohibit TCSO from arresting individuals on the basis of civil immigration detainers as defined in § 24-76.6-101, so any portions of TCSO’s 287(g) agreement purporting to authorize TCSO deputies to arrest or detain individuals on the basis of civil immigration detainers are invalid.
Because the court concluded that CRS §§ 24-76.6-101 and -102 prohibit Sheriff Mikesell and TCSO from arresting or detaining individuals solely based on civil immigration detainers, it declined to address plaintiffs’ constitutional arguments.
As to plaintiffs’ request for injunctive relief, the district court erroneously concluded that CRS §§ 24-76.6-101 and -102 are preempted by federal law and TCSO’s 287(g) agreement, so plaintiffs showed actual success on the merits of the case. But the district court failed to make specific findings and conclusions regarding whether plaintiffs met their burden for a permanent injunction.
The judgment was reversed and the case was remanded for further proceedings.
The full opinion is available at https://www.coloradojudicial.gov/system/files/opinions-2024-07/23CA0589-PD.pdf.