How far will Denver go to stop ICE? Two proposals reveal tension

A proposed executive order from Mayor Michael Hancock walks a careful line as Denver City Council considers an ordinance that confronts new DOJ rules.
7 min. read
Misun Oh holds a tiny flag at a rally outside of the GEO private immigrant detention facility. (Kevin J. Beaty/Denverite) ICE; immigration; deportation; aurora; protest; rally; denver; colorado; kevinjbeaty; denverite

Denver's elected leaders have tangled for months with federal immigration authorities. They've been rewriting laws, drafting letters and trying to keep enforcement agents away from schools and courthouses, all to protect immigrant communities -- even as they resist the "sanctuary city" label.

Through it all, there's been this tension: How far would Denver go to resist the federal crackdown? We may soon find out.

Two Denver City Council members have introduced a bill that would forbid local cooperation with the feds, with limited exceptions. It comes up for an important meeting on Wednesday — and Mayor Michael Hancock's office just released its own proposal.

Meanwhile, the federal Department of Justice has made specific new threats to cut funding to uncooperative cities. The council proposal may violate those rules, putting hundreds of thousands of dollars in question, while Hancock's proposal may stay within the new requirements, hoping to avoid unnecessary federal attention, as one city attorney told The Denver Post.

Within hours, the contrast of the two proposals drew some heated criticism of Hancock's office from immigrant advocates, presaging what could become a bigger fight over how much Denver can or should do to resist the federal government.

However, both groups of Denver officials say they have the same goal: Keep the city out of immigration enforcement.

"Whether it is in the form of a city ordinance or an executive order, we will be taking additional steps to stand with our immigrant and refugee community and protect their safety and rights," Hancock said in a written statement.

His spokeswoman, Amber Miller, described the executive order as another option to accomplish the same objective, potentially with more flexibility.

Here's what the two proposals would do.

The council proposal, the "Public Safety Enforcement Priorities Act," is being drafted by council members Robin Kniech and Paul López. It was announced last month.

The mayor's executive order is still being drafted. An initial version was released exclusively to The Denver Post on Tuesday.

They have several things in common:

ICE often requests that local jails keep immigrants in detention until agents can arrive. Denver, like most Colorado counties, already refuses to do that, saying it can only hold people for criminal matters, not immigration issues. Both proposals would make that policy permanent.

The council proposal expressly forbids ICE agents from entering secure jail areas to conduct investigative interviews. The mayor's proposal doesn't allow ICE to make arrests in jail, but it does allow for jailhouse interviews.

Both proposals generally declare that city resources should not be used to do the federal job of immigration enforcement.

"I think that both the City Council’s proposal and the mayor’s proposal are going to offend (Attorney General) Jeff Sessions," said Chris Lasch, professor of law with the University of Denver.

And a couple of important differences:

The Kniech-López proposal says that Denver won't notify ICE of the upcoming release of certain jail inmates who are wanted on immigration matters.

The "jail is currently providing voluntary notice to immigration enforcement about hundreds of individuals, including low-level traffic offenders," according to a memo discussing the ordinance.

In contrast, the Post reported that Hancock's executive order would allow deputies to notify ICE of people's upcoming release from jail

"The fact sheet is stunningly silent on that point," Lasch said of the mayor's proposal. Notification could be a crucial point of contention, he said, because it's part of a "pipeline" that can suck people in from a minor traffic offense to the deportation system.

Either way, Lasch noted that it often would be impossible to give 48-hour notice, since people who post bond are normally allowed to leave jail immediately, and neither proposal allows for extra detention for immigration purposes.

Denver has come in for harsh criticism when immigrants accused of crimes are released from jail without sufficient notice to ICE, as in the recent case of an inmate who killed another inmate in a fight (he was not charged in the death, as prosecutors believed it may have been self-defense) or earlier this year, when a man previously wanted on immigration violations was arrested in connection with a murder at a light rail station.

The mayor's proposal also would create a new "legal defense fund" that would provide legal support for people facing deportation. It's unclear whether it would be funded with city dollars.

This might tick off the Justice Department.

Late in July, the Department of Justice introduced some new rules for one of its major grant programs.

Cities now must allow immigration agents "to access any detention facility in order to meet with an alien" and interview them, according to a description on the DOJ website.

The council proposal appears to violate that requirement, as it bars ICE from entering secure areas for interviews. The mayor's proposal seems to obey the new federal requirement. Miller argued that it's better to allow ICE to interview, as the agents would otherwise try to get the interviews surreptitiously.

DOJ has also declared that cities must provide "48 hours advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody," if requested.

The council proposal may violate that new rule. It would only allow for ICE notification when inmates have convictions involving gang activity, felony convictions related to violent crimes, are wanted for homeland security purposes or when ICE has a warrant signed by a judge, as opposed to the administrative warrants ICE typically uses.

López and Kniech have said that city staff are "closely analyzing" whether they would run afoul of the DOJ rules. In a written statement they argued that the new DOJ guidelines will likely face court challenges because "criminal justice grants are not focused on immigration."

The city recently has received more than $400,000 per year from the program in question.

Lasch pointed out that the Trump administration already has been held up by the courts in its attempt to limit other grants. He suspects that the administration is intentionally creating confusion among city leaders.

"The Trump administration is trying their best to create as much uncertainty as possible around the whole concept of who’s a sanctuary, who’s not a sanctuary," he said, "and the game is pretty clear. What they’re trying to do is generate uncertainty so that jurisdictions will want to err on the side of catering to the administration’s goals."

What happens next?

The two proposals may end up in competition. Kniech and López today released a written statement calling for more discussion.

“We recently learned from the Mayor’s Office that they are considering issuing an executive order to codify many of the practices the city already does regarding public safety," they said. "We do not believe that their draft accurately does that or that it goes far enough to ensure greater safety for our Denver residents. The draft has not had the benefit of community input like our ordinance has."

Hans Meyer, a prominent immigrant rights attorney, criticized the mayor's approach in a written release.

"If Mayor Hancock wants to stand up for the principles he espouses and protect Denver's immigrant community against the Trump administration's deportation machine, then he should adopt all the substantive protections of the proposed ordinance and not simply cherry pick the parts that make for easy sound bites," he wrote.

Hancock has not made an official statement on the council proposal. He supported earlier reforms meant to protect undocumented immigrants in jail, but he also has been cautious to avoid the "sanctuary city" label.

The mayor's order does not require council approval. Like other executive orders, it could be reversed by the next mayor. Hancock would have the power to veto the council's proposal if it is approved.

This story was updated with comment from the mayor's office.

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