Denver would shield more immigrants from ICE under council proposal

8 min. read
City council members Paul Lopez and Robin Kniech. A city council committee meeting on sentencing reform as it relates to undocumented immigrants, May 11, 2017. (Kevin J. Beaty/Denverite) denver; city council; city and county building; kevinjbeaty; denverite; colorado;

City council members Paul Lopez and Robin Kniech. A city council committee meeting on sentencing reform as it relates to undocumented immigrants, May 11, 2017. (Kevin J. Beaty/Denverite)

Denver City Council members Paul Lopez and Robin Kniech want to enshrine the city's practices and policies around immigration and law enforcement in an ordinance that would also end the practice of notifying immigration authorities when non-citizens are due to be released from jail.

"The problem is that people are afraid to call the police," Lopez said as he introduced the proposal at a Safety, Housing, Education and Homelessness Committee Wednesday.

Kniech said the proposal is about public safety, not "political pronouncements," but it's almost certain to further cement Denver's reputation as a city at odds with the federal government -- even though it's not a formal sanctuary city.

President Donald Trump has signed an executive order threatening to withhold funding from cities that don't cooperate with federal immigration authorities. Denver complies with federal requirements to share fingerprints with the FBI and U.S. Immigration and Customs Enforcement, so immigration authorities know when someone they're looking for is in the Denver jail. That's the letter of what federal law requires, and for that reason, Denver officials say they are in compliance and not in danger from Trump's executive order. Nonetheless, Denver is supporting a lawsuit on the part of the city of San Francisco and Santa Clara County to block enforcement of that executive order.

However, Denver -- like nearly every county in Colorado -- does not generally collect immigration information about people with whom police have contact and does not honor immigration detainers, which are requests from ICE that local jails hold people beyond their standard release date so that immigration agents can arrest those people.

The Denver Sheriff's Department does notify ICE of the pending release of inmates the agency is interested in arresting. The city faced intense backlash when that notification didn't take place until the last minute, late at night, with one particular inmate, and he was later arrested in connection with a murder.

"I believe this city, Denver, we’re doing things right," Lopez said. "There have been great positions taken by the Mayor’s Office. Unfortunately, the community doesn’t know that. Our community is very, very afraid. ... They’re afraid to call the cops. They’re afraid to call 911 in an emergency. They don’t want to go into the emergency room when they’re injured."

Lopez and Kniech said the purpose of their proposal is to take current practice and turn it into law. That way, it will be clearer to the community in general where the city stands, and if the policy changes in the future, it will be through a public process with plenty of notice and discussion.

Enshrining these practices in ordinance also means it would become a violation of law to share information with ICE in many circumstances, and if employees did act contrary to city policy, there would be greater consequences.

And their proposal also makes one significant change: ending the policy of notifying ICE of pending releases from the jail, except in certain situations involving people convicted of gang- or terrorism-related offenses and violent felonies.

The proposal has four elements:

  • Denver would not hold people on "immigration detainers" past their normal release date from the county jail.
  • Denver would not ask for or record immigration status unless required by federal or state law. This is already the most common practice, but there are situations where it has occurred, including one case where a man was reported to ICE by a state-level probation officer. This ordinance would apply to city employees, but not state-level law enforcement officers.
  • Denver would not share any information about immigration status for the purposes of immigration enforcement, except as required by federal or state law. Exceptions include people who have been convicted of a violent felony in the last seven years, people who have been convicted of gang-related offenses under federal law, people who are suspected of participation in terrorism per the Department of Homeland Security or the FBI and people for whom there is a judicial warrant.
  • Denver would not use any public resources to help immigration enforcement, including providing access to private facilities and areas. This is also the predominant practice in the city already.

Kniech and Lopez said they are not stopping ICE from arresting people they seek, and if they want assistance, such as Denver provides to other law enforcement agencies, ICE should get warrants signed by judges, not the administrative warrants that ICE currently uses.

"The courts have been very clear," Kniech said. "There is one kind of warrant in this country, and that’s one signed by a judge or a magistrate. Anything else is just a piece of paper."

Denver has repeatedly clashed with ICE over the practice of agents going to courthouses to arrest people who are there to deal with criminal or traffic offenses.

"Having ICE hanging out outside sensitive areas and tackling people, that’s not an appropriate place to proceed," Kniech said. "The appropriate way to proceed is to get a warrant. Show it to the sheriff. Anytime this city is presented with a warrant, we comply. Getting a fax and hanging out in an alley is not a safe way to proceed."

That said, Denver cannot prohibit ICE agents from waiting outside or even inside public areas of government buildings, and this ordinance would not change that.

ICE spokesman Carl Rusnok said it would be inappropriate for the agency to comment at such an early stage of the process.

A spokesman for the Denver Sheriff's Department referred questions to the Mayor's Office. Jenna Espinoza, a spokeswoman for Mayor Michael Hancock, said he shares the goals of Lopez and Kniech that immigrants feel welcome in Denver and safe cooperating with law enforcement.

"We continue to stand with Denver’s immigrant and refugee communities and are committed to protecting them and their contributions to the vitality of our city from the Trump administration’s chaotic immigration policies," she said in an email. "... This is why we took steps to reform sentencing laws, created plea by mail and joined litigation challenging the White House’s immigration orders. As a result, Denver is recognized as a national model for how cities can keep families together and neighborhoods safe. But we are neither satisfied nor finished, and our work will continue."

She said the mayor is reviewing the language of the proposal with a focus on public safety.

Members of the Denver City Council were briefed on legal issues around the proposal in executive session. Lopez said he believes the constitution is on the city's side, and Denise Maes of the Colorado chapter of the American Civil Liberties Union said the city would still be fully compliant with federal law if it adopted the ordinance. Issues around immigrant detainers have never been litigated all the way up to the Supreme Court, but numerous lower court rulings have found that cities and counties cannot hold people in jail without a judicial warrant.

In public comments to the committee, Salvador Hernandez, an immigrant from Mexico who came to the U.S. when he was 15, described being shot five times and left for dead on the street in North Las Vegas.

"I had the confidence to go to the police and cooperate with them because I knew they would not question my undocumented status," he said. "I don't know what would have happened if I had to face immigration consequences on top of being a victim of a crime. I don't think that would be fair. It shuts the door on folks who want to seek justice."

Hernandez, an organizer with Mi Familia Vota, said that even though he has documents now through the DACA program, he has a lot of fear and would do anything he could to avoid going to court. He called the ordinance a step in the right direction, though he would like to see it go further, including a total prohibition on notifications about release. Some undocumented immigrants released from jail may go on to commit violent crimes, but that's just as true of citizens who are released from jail, he said, and the two classes of people shouldn't be treated differently.

Denver officials report that at least nine domestic violence victims have withdrawn from prosecution specifically because they feared drawing attention to their immigration status if they went to court. And in the first few months of the year, reports of crime from Latinos in Denver went down, even as reports of crimes in those same categories went up among other groups. The numbers are small, and it's hard to draw firm conclusions -- but Denver police said they are monitoring the trend.

Kniech and Lopez plan to introduce this proposal as an ordinance at the Aug. 2 SAFEHOUSE committee meeting, from which the ordinance would go to the full City Council.

This story has been updated with comment from the committee hearing and the Mayor's Office.

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