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Nash v. Mikesell.

2021 COA 148. No. 20CA0929.  Jurisdiction—Taxpayer Standing—US Immigration and Customs Enforcement—Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

December 16, 2021

Section 287(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes the Department of Homeland Security (DHS) secretary to enter into agreements with a state or a state’s political subdivision that allow qualified individuals to perform certain immigration officer functions. The Teller County Sheriff’s Office (TCSO) entered into a § 287(g) agreement with US Immigration and Customs Enforcement (ICE), through a delegation of authority from the DHS secretary to ICE, that empowered TCSO personnel to perform immigration functions when they were assigned to duty at the jail.

Plaintiffs sued the Teller County sheriff claiming that the § 287(g) agreement violated the Colorado Constitution and HB 19-1124. Although plaintiffs had not been detained as a result of the § 287(g) agreement, they invoked standing as taxpaying residents of Teller County. The trial court concluded that plaintiffs lacked standing and granted the sheriff’s motion to dismiss.

On appeal, plaintiffs argued that the trial court erred in finding they did not have standing. Because the jail uses plaintiffs’ tax dollars, which are allegedly being used in an unconstitutional manner, plaintiffs demonstrated a clear nexus sufficient to confer taxpayer standing to challenge the sheriff’s § 287(g) agreement.

The order was reversed and the case was remanded with directions to reinstate the lawsuit.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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