"The individuals that fail to comply [with the subpoenas] could be held in contempt," Matthew Albence, the acting director of ICE, said during a press conference in Washington, D.C., on January 23. "They can show up to court with a toothbrush, because they might not be going home that night, because they could be jailed for failure to comply with a lawful order from a judge."
Albence's comments came after Denver officials refused to comply with administrative subpoenas sent to interim sheriff Fran Gomez on January 13, which asked the city jail to turn over information regarding four individuals that ICE wants to detain. The information requested included basic biographical information and also things like the addresses of where the individuals live and work. All four of the men had been arrested on serious charges, such as vehicular homicide, sexual assault and domestic violence.
"Although ICE has not historically had a need to issue immigration subpoenas requesting information, the authority to issue immigration subpoenas is codified in federal law," Alethea Smock, a spokesperson for the Denver ICE field office, says in a statement sent to Westword. "The majority of law enforcement agencies throughout the country willingly cooperate with ICE to provide information regarding aliens arrested for crimes in the interest of public safety. ICE is using every tool available to obtain information on the whereabouts or release dates of aliens in jurisdictions that choose to, or are unable to, cooperate with ICE."
The Associated Press pointed out that this is the first time ICE has ever subpoenaed another law enforcement agency.
The subpoenas noted that if Gomez didn't comply with the requests, she could be subject to an order of contempt by a federal court.
City lawyers disagree.
"Unless there is an order issued by a court of competent jurisdiction, there is no avenue to hold anyone in the City and County of Denver in contempt for failure to produce documents or information in response to the documents you sent," Chad Sublet, a lawyer with the Denver City Attorney's Office, wrote to a local ICE officer on January 16. In that same email, Sublet let ICE know that Denver was denying the subpoena requests.
A week later, Albence made his toothbrush comment. In response, Mayor Michael Hancock's chief of staff, Alan Salazar, fired back on Twitter: "Very professional. He needs to do some brushing up (no pun intended) on the law he is sworn to uphold."
Salazar and the rest of the Hancock administration are no fans of ICE, with which they've had an acrimonious relationship for years.
In August 2017, Denver City Council passed an ordinance prohibiting most city staff from communicating with ICE or collecting information about a person's immigration status; the ordinance also codified a Denver policy of not obliging detainer requests from ICE. Hancock signed it into law.
ICE sends out detainer requests when it wants a local law enforcement agency to detain a person who's just been released for up to 48 hours. This allows ICE agents to apprehend that person in the most efficient and safe manner, ICE contends.
But immigrant-rights advocates and lawyers argue that when local law enforcement agencies oblige detainer requests, they're essentially rearresting a person and doing the work of ICE.
In 2019, the Colorado Legislature passed a bill that prohibits law enforcement agencies in Colorado from abiding by detainer requests.
ICE had originally sent detainer requests for the four individuals to the Denver jail. Operating in accordance with local and state law, Denver's jail didn't abide by the detainer requests, but did notify ICE of the release dates of three of the individuals on the days they were set to be released. A fourth hadn't been released at the time the subpoenas were sent to Denver.
Although Denver officials may technically respond to release-date requests from ICE before detainees are released, ICE officials contend that Denver rarely gives enough notice for officers to apprehend detainees being released in the jail's lobby.
"Nine times out of ten with Denver, they're already gone," says Smock. "What we typically request with the detainers is 48 hours, but even then, having even an hour or two would help dramatically."
Denver law enforcement officials keep track of release requests from ICE and note the time when ICE sends in the request and when Denver notifies the federal agency about an impending release. But city officials say they're unable to specify how much notice the jail gives to ICE when it sends out a release date. "There’s no way to do that with the system," says Daria Serna, a spokesperson for the Denver Sheriff's Department.
The subpoenas have a response deadline of 3 p.m. today, January 27. After that, ICE would have to force Denver's hand in federal court in order to get the city to comply with its subpoenas.
Albence apparently is hoping that ICE's aggressive approach toward so-called sanctuary cities like Denver and New York will scare other municipalities into cooperation.
"Hopefully...some of these other jurisdictions that don't want to cooperate will see that we're taking this seriously, and maybe they'll come around and try to help their own communities," Albence said at the press conference.