ICE wants more up-to-date release information from Teton County Jail

JACKSON — Although the Teton County Sheriff’s Office has received more clear direction from Immigrations and Customs Enforcement on how to better communicate with the federal agency, a former regional director of ICE argues further steps need to be taken.

A debate on whether local law enforcement should partner with ICE to detain noncitizens after they’ve been released from jail or become a “quasi ICE facility” was sparked after the Teton County Sheriff’s Office was accused of standing in the way of the federal agency.

“That covers you under the law, because now your jail bed is essentially becoming an ICE bed for that time,” John Fabbricatore, former ICE Denver Field Office director, told the Jackson Hole News&Guide on Monday.

Teton County Sheriff Matt Carr doesn’t foresee this being supported in Teton County.

He said his employees have always updated ICE to the best of their abilities when a case was nearing adjudication so that agents could pick up an undocumented noncitizen, but the sheriff’s office doesn’t have “a crystal ball,” he said. Judges sign off on release orders and can surprise law enforcement with their decisions, and he said law enforcement has to wait for the court documentation.

“Since this whole thing is stirred up,” Carr said, referring to a newsletter sent out Nov. 24 by U.S. Rep. Harriet Hageman, R-Wyo., “we have formalized that process a bit more with the folks in Casper.”

In her missive, Hageman alleged that there were “scores of individuals being held in the county jail who met the agency’s threshold for being detained and deported [DUIs, illicit drugs, sexual violence].” She said, “ICE requested the Teton County Sheriff’s Office to first hold these individuals in custody and to then transfer them to ICE for having violated immigration law, but the sheriff’s office chose to release them, thereby foiling ICE’s efforts.”

Hageman’s comments sparked outrage among Teton County Republicans and the state GOP, leading to a swarm of emails and phone calls to the Teton County Sheriff’s Office. Carr reached out to Hageman’s office to discuss the issue, but he said on Tuesday, more than three weeks later, that he has yet to hear back from her.

However, he said his office initiated a conversation with ICE agents in Casper about how to better communicate before a detainer request is needed for an undocumented person.

Denver Field Office Assistant Field Office Director Doug Carter sent an email to the sheriff’s office on Dec. 4 with contact information.

Carter said that for people being released quickly, such as those bonded out or “released on zero’s,” the date and time of notification will be in ICE’s computer system so it’s documented. He asked that for any person who is sentenced to jail time “in which we know an exact date and time of release,” the sheriff’s office provide the information well in advance through the specific notification process outlined by ICE to ensure officers are present at the facility before the individual is released from the sheriff’s custody.

“Make sure to give as much notice as possible,” a Teton County lieutenant told jail deputies in an email the same day. “I know this is something we used to do regularly in the past and has become less of a priority when it seemed they weren’t actually committed to picking up the person. Regardless, it will help them and it will show that we are doing what we can.”

The lieutenant phoned Carter on Dec. 4 to figure out “how we can work together while honoring the policies of the sheriff’s office.”

Carr said in November that when the Teton County Sheriff’s Office arrests a “foreign national,” his office starts to notify ICE by forwarding booking information and fingerprints and asking for identification assistance if the individual has no documentation. The sheriff’s office also facilitates interviews between ICE and undocumented individuals who have been arrested.

One of the policies that Carr views as instigating Hageman’s comments, and that he has defended, was his decision to deny detainer requests from ICE that are not signed by a judge.

A “detainer” or “ICE hold document” comes into play only after an undocumented individual has been adjudicated by a judge for his or her local crimes and released.

The Teton County sheriff explained in November that ICE can come pick up the person right from jail or can do nothing and let the person walk free.

A third option is to issue the “detainer.” ICE defines the document as a request asking a federal, state or local law enforcement agency to “notify the requesting agency as early as possible before they release a removable noncitizen” and to “hold the noncitizen for up to an additional 48 hours.”

Although the federal agency couldn’t answer at this time, Fabbricatore said a judge isn’t required.

Fabbricatore served in many roles at the federal agency from 1999 to 2022. Before he served as director in 2020, he helped establish the Criminal Alien Program and the 287(g) Task Force and was deputy director for more than a decade.

The Criminal Alien Program “identifies, detains and removes aliens who are incarcerated within federal, state and local prisons and jails, as well as at-large criminal aliens.”

Fabbricatore left ICE in 2022 and ran as a Republican for Colorado Congressional District 6.

He told the News&Guide that immigration law falls under both civil and criminal areas, and ICE largely uses its civil enforcement authority because the number of immigration cases “would overburden the U.S. Attorney General’s Office in a day.” There are many criminal charges, spanning entering the U.S. illegally, re-entering after deportation and harboring undocumented persons.

“Say 7 million people entered the U.S. illegally in the last four years,” he said. “Imagine taking 7 million of those cases and putting them in front of the U.S. Attorney’s Office.”

When it comes to the detainers, Fabbricatore said ICE is using its administrative authority under the Immigration Nationality Act to request undocumented persons be held. But the fact that the documents are not signed by a judge has come up in court after the American Civil Liberties Union filed suit, he said.

“A judge’s warrant isn’t needed because in the statute, it says that ICE supervisors have the same authority as a judge,” he said. “What gives a judge authority to sign a warrant? Its statute. It’s the law.”

He said a detainer can be signed by an officer, and an ICE arrest warrant or a notice to appear needs to be signed by a supervisor.

“But the detainer is an ask to investigate,” he said. “It’s based off a reasonable suspicion, not probable cause. In immigration law, you only need reasonable suspicion that a person is illegally in the U.S. You don’t need probable cause. You develop your probable cause during an investigation and see whether that person is here legally or not.”

The larger issue is the timing, though. The ACLU argues that ICE requesting a person be held two days after they are released goes against the Fourth Amendment of the U.S. Constitution. The National Immigration Law Center shares this concern.

“That’s really a fancy way of saying that ICE is asking the sheriff or the local law enforcement agency to undertake a new arrest,” said Heidi Altman, director of federal advocacy for the center. “And the Fourth Amendment says, and always has, that the government needs probable cause to be able to undertake an arrest. So, anytime that a law enforcement official complies with a detainer, they are undertaking new arrest without that constitutional imprimatur of probable cause unless there is a warrant that has been signed by a judge.”

The ICE detainer is an administrative warrant that Altman doesn’t refute needs to be signed by a judge, but she said it is the wrong document altogether.

“When a sheriff or a local law enforcement leader makes a decision not to comply with a detainer, that’s a decision that we find to be quite the reasonable approach,” she said, “both in terms of avoiding financial liability to the city or the county or the jurisdiction and in terms of making sure that the local law enforcement agency is not violating their constitutional or other legal requirements.”

In response to the argument that seeking criminal warrants would be too cumbersome for the justice system, Altman said: “Federal agencies don’t get to pick and choose which parts of the Constitution they want to comply with.”

She also said communities that limit detainer compliance without a criminal warrant improve public safety.

“Because they avoid an undermining of trust that happens when immigrant communities believe that their local police are essentially doing or undertaking direct immigration enforcement,” she said. “What flows from that is a fear that, for example, if you witness a crime, if you call 911, are you risking your own deportation or the deportation of someone you love?”

Fabbricatore said he saw the merits of the ACLU’s argument for holding a person after they are released, but he said he wants counties and towns to work closer with ICE to prevent the need for detainers. He said many local law enforcement offices contact ICE at the last minute.

Routinely, officers would call one day before a year-long sentence ended, Fabbricatore said, leaving ICE with little time to make a trek to pick up the person.

As of Nov. 27, the Denver Field Office had issued a total of 118 detainers to the Teton County Sheriff’s Office dating back to February 2023. The Teton County Jail held only 15 of those 118 released undocumented persons for ICE to take into custody.

Carr confirmed the numbers and said the discrepancy is because 103 of the detainers were not signed by judges, but rather by immigration officers. Those he accepted came with criminal warrants signed by a judge.

A 37-year-old Jackson resident was taken into custody Monday after a traffic stop by the Jackson Police Department for criminal re-entry into the country after previously being deported. He will be held in jail until ICE picks him up, Carr said. Because there was a federal criminal warrant, Carr will hold him as long as necessary.

Steve Kotecki, public affairs officer for the ICE Denver Field Office, said in November it was determined that the individuals subject to those detainers were no longer in custody. Additionally, he said the lack of notification before releasing noncitizens from custody limited the ability to carry out enforcement and removal operations.

“This lack of prior notification hampers coordination and can result in missed opportunities to apprehend criminal offenders in furtherance of the ICE public safety mission,” he said. “Those apprehended by ICE are given full access to legal due process as afforded under law.”

ICE declined to give further comment Tuesday about what the detainer request process is, when a judge’s signature is or isn’t secured and if ICE sees a legal difference between a detainer signed by a judge or an immigration officer.

The News&Guide also asked how many counties in Wyoming carry out ICE detainers without a judge’s signature.

In Wyoming, Fabbricatore pointed out, there is a lot of distance between the Casper or Cheyenne offices and Jackson.

He said there’s also another way to partner with ICE that would be beneficial. Counties can enter into an intergovernmental service agreement and become a “quasi ICE facility.” Sweetwater County has entered into this contract, and ICE pays the jail to hold the person in custody.

Carr said there are no plans at this time to enter into a support agreement with ICE or change its policies on detainers, but his office will take into account the clear direction it’s been given on notification.

Carr doesn’t know what the future holds. He said one constituent reached out to U.S. Sen. John Barrasso, R-Wyo., about their concerns in Teton County, and Barrasso told them to wait until Jan. 20, when President-elect Donald Trump is sworn in.

Carr will wait to see if ICE gets more funding or if it will have a heavier presence in Jackson.

He also said he is not blind to the fact that the Wyoming Freedom Caucus plans to introduce bills in the upcoming session that may require them to enforce federal immigration law. He makes no promises to immigrant advocates about what his office will or won’t do; he said he will follow the law.

“We’re not trying to be a sanctuary community,” he said. “I’ve said this before and I get trounced every time, depending upon the audience.”

But he said the immigrant community is a “pillar” of the valley.

“It’s a significant aspect of it,” he said. “So, I think we just have to move with caution, follow the law and the Constitution in the United States, and wait to see what actually happens.”

This story was published on December 18, 2024.