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An effort to block ICE agents from making courthouse arrests in Colorado will test Gov. Polis on immigration

U.S. Immigration and Customs Enforcement says courthouse arrests are “far safer for everyone involved, including our officers and the person who’s being arrested.”

A U.S. Immigration and Customs Enforcement agent. (Provided by U.S. Immigration and Customs Enforcement)
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Colorado lawmakers this year are seeking to pass a bill that would bar U.S. Immigration and Customs agents from making arrests inside of and around courthouses across the state.

If signed into law, it would be one of the — it not the — strongest statewide limitations yet on the agency’s ability to carry out immigration enforcement in Colorado. 

“This is among the more progressive attempts by state legislators to protect people who have legitimate business in state courthouses to access those proceedings without fear of arrest by immigration officials,” said César Cuauhtémoc García Hernández, a University of Denver law professor who focuses on immigration policy.

ICE says the measure, Senate Bill 83, is a so-called sanctuary policy that will put its agents at risk. If it becomes law, the measure could serve to further escalate tension between officials and the state, which has been rising since last year, when state lawmakers blocked county sheriffs from holding inmates solely on immigration-related charges after they posted bail or served their criminal sentences.

Immigrant advocates say the legislation is a necessary step to ensure equal access to Colorado’s justice system. 

The measure represents a test for Gov. Jared Polis, who last year upset immigrant advocates by not supporting a sweeping attempt to effectively eliminate Colorado law enforcement’s ability to assist federal immigration agents. He worried about the impact it could have on state-federal law enforcement partnerships by politicizing them. 

Polis ultimately signed a watered-down version of the bill

The governor’s office isn’t saying much about Senate Bill 83 this year, but is signaling tentative early support while emphasizing that the details will matter.

The Senate Chamber at the Colorado State Capitol on Jan. 8, 2020. (Kathryn Scott, Special to The Colorado Sun)

“The governor supports the principle of this bill to keep people safer and looks forward to examining it more closely in the weeks ahead as the legislation works its way to his desk,” said Conor Cahill, Polis’ spokesman, in a written statement. 

García Hernández says the legislation, should it make it to Polis’ desk, will force the governor to decide how far he is willing to go on aiding people living in the U.S. illegally. “I think Gov. Polis needs to consider how he wants to position himself in relation to some of the most cutting-edge advocacy that I’ve seen anywhere in the country,” García Hernández said. 

Other states have already barred immigration agents from making arrests in courthouses. A Massachusetts judge was indicted on federal charges that she helped a defendant in her courtroom who is living in the U.S. illegally avoid an immigration agent.

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New York’s judiciary department last year passed a rule saying that ICE can’t arrest people living in the U.S. illegally inside courthouses unless they have a warrant signed by a judge. Oregon’s Supreme Court similarly outlawed courthouse arrests by federal immigration agents in 2019. 

And California’s legislature passed a law banning ICE from making courthouse arrests. That bill was recently signed into law.

The Colorado measure is being brought by two Denver Democrats: state Sen. Julie Gonzales, a longtime immigrant advocate, and state Rep. Leslie Herod, a Polis ally and one of the legislature’s most liberal members. 

Specifically, the measure prohibits any civil arrests while a person is at a courthouse, or while they are attending, going to or leaving a court proceedings. It also bars a civil arrest — immigration proceedings happen in the civil arena — on the sidewalk, driveway, entryway, green space or parking area associated with a courthouse.

Additionally, the bill would mandate that ICE agents present their credentials and state the purpose of their visit to a courthouse if they are not there for security reasons or to participate in a legal proceeding. People who violate the proposed law could be held in contempt of court or face a lawsuit.

“The reason why this matters is there is longstanding precedent to ensure that everyone has access to our courthouses, whether we’re talking about witnesses, whether we’re talking about victims, whether we’re talking about defendants, whether we’re talking about people who are going to the courthouse to conduct business,” Gonzales said. “Courthouses should be places where everyone should feel free to attend.”

Julie Gonzales speaks at a campaign event for Colorado Democrats in Denver’s Washington Park on Tuesday, Oct. 23, 2018. (Jesse Paul, The Colorado Sun)

Gonzales, who used to work as a paralegal at the Meyer Law Office, an immigration law firm, says she witnessed ICE make a courthouse arrest in 2018. She says a man stepped outside of court to use the restroom when two plainclothes agents took him into custody. 

“If immigrant community members can’t view the courthouse as a safe place, they’ll never show up,” said Hans Meyer, who leads the Meyer Law Office. “We’ve seen this as an issue that’s played out across the state. It’s been a major issue we’ve seen in communities for probably the past four or five years.”

Meyer says he currently represents about 15 people who were arrested at courthouses across Colorado, from Denver to Weld County and Durango to Gunnison. 

Alfredo Falcon Reyes is one of those clients. He says he was taken into custody by ICE agents  at the courthouse in Trinidad on Dec. 18, as he was leaving the building after paying a fine to resolve a petty marijuana possession charge. 

“There were three or four officers right there waiting for me,” Reyes said. “They asked for my name — ‘Alfredo is that you?’ — and before I even said anything” they took him into custody.

Reyes spent about a month in immigration detention before he posted bond last week and was released. He came to the U.S. from Juarez, Mexico, around 2007 or 2008 to escape violence there and lives in Liberal, Kansas, with his wife and two American-citizen children.

“They pretty much ripped him from our family,” said Reyes’ wife, Pamela Rosales. “They didn’t give us an explanation or anything. It was just a horrifying moment. It’s pretty scary to even go to court now, because who knows if they might do this again.”

Denver’s Lindsey-Flanigan Courthouse, photographed on March 18, 2019. (Jesse Paul, The Colorado Sun)

ICE says it can’t comment on pending legislation, but that courthouses are not included in the list of sensitive locations — like schools, places of worship and hospitals — that it directs agents to avoid making arrests in.

The agency says courthouse arrests are safer for both immigration agents and people being arrested. That’s because the arrestee has passed through security and therefore is likely unarmed and they limit interference from bystanders.

“In such instances where deportation officers seek to conduct an arrest at a courthouse, every effort is made to take the person into custody in a secure area, out of public view, but this is not always possible,” ICE spokeswoman Alethea Smock said.

ICE declined a Colorado Sun request for an interview with the agency’s acting director. 

ICE is now involved in a spat with the city of Denver over immigration enforcement and has been extremely critical of Colorado’s law passed last year barring county sheriffs in the state from holding people in their jails solely on immigration charges in a practice that’s called a “detainer.”

Gonzales said she hasn’t spoken directly with Polis about Senate Bill 83, but she feels confident he will see its value. Even a leading Republican in the Capitol, Senate Minority Leader Chris Holbert, says he sees merits in the policy, though he’s still likely to oppose the measure. 

Holbert said he doesn’t support sanctuary-type policies and doubts anyone in his caucus does either.

“I think I could support something that would protect anyone who is before a judge or a jury and not be interfered with,” Holbert, a Parker Republican, said. “… If a person is guilty of a crime or law enforcement has reason to make contact with them I would think that after that court proceeding is concluded that law enforcement ought to be able to have contact with those people.”

The Colorado District Attorneys’ Council hasn’t taken a position on the bill, but 18th Judicial District Attorney George Brauchler, a Republican, blasted the idea in a Denver Post opinion piece Sunday, calling it “ill advised” and too broad. 

“The bill would convert our monuments to the sanctity of the rule of law into sanctuaries from the enforcement of the law,” he wrote.

Brauchler also warned that it could affect officers’ ability to enforce civil contempt of court charges and force parents to comply with child support orders. Herod said she is willing to take Brauchler’s concerns into consideration and look at potential changes to the legislation. 

The legislation appears to have the support of fellow Democrats in the Senate, where it will likely face its biggest test as it makes its way through the legislature.  

Senate Bill 83 will receive its first hearing Wednesday in the Senate Judiciary Committee. 

Rising Sun