Why El Paso County’s Sheriff Doesn’t Plan To Help With Trump’s Immigration Enforcement

Ryan Warner: This is Colorado Matters from CPR News. I'm Ryan Warner. President Trump hopes local law enforcement will do more to arrest and detain immigrants in the country illegally. He says it'll lead to more deportations. The El Paso County Sheriff's office, which serves the fairly conservative area in and around Colorado Springs has been the state's most active jurisdiction in helping the feds with immigration enforcement. But experiences there show the challenges of this. Undersheriff Joe Breister is here. Welcome to the program.

Undersheriff Joe Breister: Thank you.

RW: In a memo last month Trump's Department of Homeland Security says it wants to expand a program that trains local law enforcement as immigration agents. This program is called 287(g). It has actually existed nationally since the Clinton administration and the El Paso County Sheriff's office was the last agency in Colorado to participate. You started in '07 and stopped in 2015 and your sheriff's office said recently it wasn't interested in resuming. What were the big factors behind the decision to stop?

JB: Well I think there were several. The program itself in essence deputized, if you will, local law enforcement as federal marshals and we were doing their work so they wouldn't have to physically come to our facility to process people. And it just became too time consuming, with the fact that space availability in our jail was less and less and we just couldn't house the numbers. We would have upwards of 150 at times in our facility and we just didn’t have the space to continue housing those.

RW: Were you ever reimbursed by the federal government for those resources?

JB: They do reimburse us what we have as a set daily fee for what it costs to house somebody in our facility.

RW: But not necessarily for the hours logged by the deputies?

JB: No. There was no reimbursement for deputy time.

RW: So in a memo explaining why you ended the program in El Paso County you said it simply had become a drain on manpower and that some deputies were spending vast portions of their shifts on a single case sometimes.

JB: Yes. It can take, roughly, a deputy to do all the paperwork, all the processing, all the computer entries, anywhere from three to four hours. And with the daily number of people we have coming in and out of our jail, just for serving El Paso County, again the time constraints were just way too much.

RW: Did it then make what I suppose you would say are regular duties of a sheriff's deputy harder, something else fall by the wayside.

JB: Well I don’t think anything fell by the wayside, but there were unavoidable delays and we want to show the, or I guess dedicate ourselves to the citizens of El Paso County as opposed to assisting the federal immigration process.

RW: I want to say that the State Patrol participated in this program for awhile as well but it stopped in 2014. And I should be clear that it's voluntary. So the federal government doesn't require sheriff's offices, the state patrol or police departments to make officers available, to be trained as immigration agents. And the 287(g) has helped deport some immigrants who committed crimes. It could particularly help police or sheriff's departments that are far away from where ICE has offices. Those are two things that proponents often point to. What were the advantages in being a part of this program for El Paso County?

JB: I mean really there weren't any tangible benefits. I guess you could say a benefit was we were assisting the Department of Homeland Security, their Immigrations and Customs Enforcement, in doing their job identifying people who might have been in the country illegally. But it needs to be said, we did not go out and physically round up any of these people. What happened is these people would come into our jail for charges, crimes that they'd committed locally and we would have access to the ICE computers to check them to verify whether they were in the country legally or illegally.

RW: So even though El Paso County didn't apprehend people under this immigration cooperation program, it is absolutely the intention of the Trump administration, and I think of this law, that local law enforcement be able to do that.

JB: Yes. The Trump Administration's goal, from my understanding based upon the executive order, is that they would want a contingency of officers to go out into the streets of El Paso County, Denver, wherever you're at, and physically look for people suspected of being illegal immigrants and bring them back into the jail to be processed.

RW: Why didn't El Paso County choose to do that?

JB: We just did not feel at that point in time that it was viable. We didn't have the manpower to do it. Plus we felt like it would lead to racial profiling.

RW: You wrote in 2015 in that sort of final memo "There aren't any good reasons to remain involved in 287(g)." And yet I can imagine someone listening thinking well sure, it's potentially expensive, it requires time, but enforcing the law requires those things. Why not participate?

JB: Right. Well it's one of those, it's like anything else, you have to prioritize when it comes to manpower. The biggest thing that I think needs to be understood is being in the country illegally is a civil violation, an administrative action. It is not a criminal violation. In other words, there is not a state statute or a federal code for criminal charges for somebody being in the country illegally. It's a civil matter which the ramification for is review by a judge and then whether or not that person will be deported from the country. So technically we do not have the authority to enforce federal civil violations.

RW: Right. It was not a violation of any county or state law, it was enforcing federal immigration law.

JB: Correct.

RW: The head of the Colorado Sheriff's Association said recently to the Colorado Independent that the Trump Administration may focus on border states to try to expand its local training of law enforcement there. But even if the focus isn't on Colorado, you've said your program was hailed as a model nationwide, with practices that the other 70-some odd law enforcement agencies that participated could learn from. So I suppose what you're saying locally in El Paso County has some salience for the rest of the country.

JB: It does. I mean if you fully invest yourself into this and you have the resources to do it, it is a tremendous asset for the federal government but again it boils down to who are we paid to serve and protect. It's our community, that's part of it but we have to deal with the citizens of El Paso County before we worry about the federal government and the concerns and the problems that they're trying to address through the immigration reform.

RW: I do understand that one of your frustrations is that some immigrants you identified ended up not getting deported, even if they were in the country illegally, because President Obama's administration focused its resources on deporting more serious criminals. Or criminals at all, again that's a civil offense to be in the country illegally. Would you be more willing to train officers as immigration agents if you had more of a guarantee, as you might under Trump, that people you arrest and detain would actually be deported.

JB: I mean that's kind of a blurring of the lines. We have no idea of how many were deported or how many weren't. That's information we never got back from ICE.

RW: Really? So you participated in this program with no sense of what its impact was?

JB: Correct. Once they removed them from our facility we had no idea what the determination was by the federal government or by the judges that they appeared before in the Denver area.

RW: You're listening to Colorado Matters. I'm Ryan Warner. You may know that the Trump Administration hopes to rely increasingly on local law enforcement to help enforce immigration laws. This is allowed under a Clinton era act, a section known as 287(g) and for awhile, the El Paso County Sheriff's office participated in the program, from about 2007 through 2015. Then decided it was too much of a drain on local resources to continue. We're getting some perspective on their experience. Again, as the Trump Administration looks to increase use of the program. I do want to say that the El Paso County Sheriff's Office still works with another federal program where you detain immigrants in the jail, suspected of being in the country illegally but without all of that paperwork and training that you talked about earlier. And why have you stuck with that program? What's in it for El Paso County?

JB: Well we've stuck with it because we have a contract valid until August of 2018 but we just don’t have the space availability so right now I believe we don’t have any in our jail that are being held on that.

RW: Do you think that you'll renew that contract come 2018?

JB: I think a lot of that depends on not only what's happening nationally with the immigration reform act but also what's happening locally in Denver. There's several legislative initiatives being introduced that could drastically change how local law enforcement responds.

RW: Sometimes this means you have to take in folks from others states, right? It's not all just local people.

JB: Oh, correct. Correct. It would not be uncommon for us to receive busloads of people from El Paso, Texas, from Del Rio, Texas. They would bring them up here and house them in ours to get them before the court in the Denver area.

RW: In 2014 Arapahoe County settled with a woman who was held for three days after she was scheduled to be released and their decision to hold her, on behalf of immigration authorities, cost the county $30,000. In 2011 Jefferson County settled a similar case for $40,000. The immigrant in that case also got a similar settlement with ICE. Are there issues here with liability, legal liability?

JB: Yes and that obviously is a concern for the elected officials of any sheriff's office that, I mean a lot of these sometimes you hold them on ICE only to be informed two or three days later, to release them because they were determined to be a naturalized US citizen or have a US citizenship. And when that happens, you are basically, not basically, you are violating their constitutional rights. In a lot of the courts, rulings have come out, there's court precedents that local law enforcement is under no obligation to honor or enforce the detainers that ICE places on individuals and I think that's where the big confusion and rub starts to come.

RW: I don’t hear you saying, though, that El Paso County will be a sanctuary county.

JB: No, we won't. I mean I think one of the problems, if you will, with this is we don’t want a certain segment of the population to feel like they're being unduly targeted to where they're going to be victimized because they aren't going to want to report or call law enforcement for fear that our first objective is going to be, "Are you here in the country illegally," because we're going to deport you.

RW: Yeah because critics of this program say that there could be a chilling effect.

JB: The last thing that we would want for somebody, let's say to be a victim of a sex crime, not report that for fear they may be deported. We're not serving the community or doing the community any favors if that thought process becomes prevalent throughout the community.

RW: Did that happen when you were participating in this 287(g) program? Do you think trust was eroded?

JB: I don’t think it was eroded so much for us because ours was just a jail taskforce. The only people we interacted with or enquired or queried for their status within the country was once they had come to the jail. And obviously if they came to the jail, they came there because they were under arrest for some type of a local charge.

RW: Because you weren't involved in pure immigration apprehensions, once again.

JB: Exactly.

RW: Undersheriff Breister from El Paso County, is there anything the federal government could do to this 287(g) program, this deputizing of local law enforcement for immigration enforcement, is there anything they could do to change it that you think would make it more workable?

JB: Well I think one could be the timeliness and the volume of paperwork associated with it. But I think the bigger problem is there's not a consistent message coming from the judiciaries to what can and cannot be done on these immigration holds. The state courts have to recognize and adapt the federal guidelines and the federal courts have got to clearly establish what can and cannot be done on immigration holds, seeing they are not a criminal matter, but a civil matter.

RW: And it just sounds like the law is not settled on this question.

JB: No. You're exactly, absolutely, exactly right. Thank you.