When federal agents with Immigration and Customs Enforcement want to arrest someone at the Denver Office of Adult Probation, they can utilize a twelve-step procedure that the probation office put together to help facilitate undercover immigration arrests.
That’s according to an internal memo that was sent to probation office employees last month, which outlines such steps as:
• Escorting plainclothes ICE agents to a special conference room where they can stage their arrest
• Leading the unsuspecting probationer to the conference room where ICE agents detain them
• Escorting both the ICE agents and arrested probationer to a stairwell where, according to the memo, “they will exit the building in an attempt to not draw attention to themselves or their presence at the probation office.”
Aside from providing guidelines to help ICE make such arrests, the memo also instructs probation employees to assess whether probation clients are undocumented, and to proactively communicate with ICE whenever there is any question about a probationer’s residency status or whether they are foreign-born.
César Cuauhtémoc García Hernández, an associate professor of law at the University of Denver, wrote about the document on his blog.
According to García Hernández, the memo is significant because it shows the state probation office helping ICE deport people in a way that may not be required by law.
"There is no federal law that I know of that requires a probation department to go out of its way to help ICE identify individuals who are potentially removable," he says. (That applies as long as ICE doesn’t present the probation employee with a signed warrant.)
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Similarly, federal judges have ruled that local and state jails are not required to honor ICE’s “detainer requests” — holding on to inmates past their jail sentences so that they can be arrested by ICE officers — unless the jail is presented with a warrant.
ICE often relies on the judicial system to detain undocumented immigrants, including undercover ICE agents making arrests at courthouses — a controversial practice that even the chief justices of California’s and Oregon’s supreme courts have condemned on the grounds that the arrests undermine trust in the judiciary and can dissuade non-citizens from participating in trials, even as witnesses, out of fear. (This has, in fact, happened: Denver prosecutors have had to drop nine domestic-violence cases this year because witnesses haven't appeared in court, which they attribute to ICE’s courthouse arrests. Westword obtained FOIA documents in September that showed that ICE carried out 31 such arrests at Denver courthouses between October 2016 and May 2017.)
According to García Hernández, the policy at the state probation office in Denver also undermines trust in the judicial process for non-immigration-related cases.
"This policy carries the risk of subverting the sentencing decisions that were made by a state judge who considered what the individual had done and what the best steps were to make the community whole again,” he says. “And here the probation department has formally adopted a policy that sideswipes that sentencing decision."
The professor says that the twelve-step arrest process — meant to be concealed from the public — is deeply concerning.
"To me, that was the most surprising, shocking and lamentable part of the memo. It's one thing for individual officers to take it upon themselves to assist ICE in its immigration enforcement responsibilities. It's another thing entirely for the office of Denver adult probation to formally identify ways of cooperating with ICE that are expressly intended to conceal their cooperation and to deceive the members of the public who may happen to be present in conducting judicial business in the probation office."
Rob McCallum, public information officer with the Colorado Judicial Branch, which oversees the city's adult probation department, says that formal guidelines for communicating with ICE have been in place at the department since June 2015.
“With a policy, staff knows what is expected and what the parameters are for what they are and are not to do,” he says of the memo.
McCallum revealed that in the past two years, ICE agents have arrested 35 individuals at the adult probation office, at 303 West Colfax Avenue. “The incidence of this process have remained fairly constant over the past two years and actually declined a little bit this year,” he says.
McCallum says the twelve-step memo is not intended to shroud anything. “It’s not a secret process. The intent is to not disrupt the overall operation of the probation office and the numerous clients we serve.”
He says probation officers don't "report" undocumented individuals to ICE. “We merely ascertain their ICE status if we do a pre-sentence investigation," he says. "If an offender absconds, we may check with ICE to see if the person has been picked up. And finally, we provide limited publicly available information to ICE when they reach out to us in keeping with state law.”
Nevertheless, associate professor García Hernández says he still has many questions about the memo.
"There's a very palpable sense of a policy decision that was made by somebody in the probation department to identify people who might be removable from the United States and put them into the immigration detention and deportation pipeline," he says.
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Some agencies in the state are adopting policies that intend to limit cooperation with federal immigration agents.
Denver recently passed a bill that prohibits city employees from communicating with ICE unless presented with a warrant. As Westword recently reported, Denver employees may face fines, jail time or termination if they break the new city law. Probation departments in Colorado often employ state, county and city employees, however McCallum says the Office of Adult Probation does not have any Denver city or county staff.
Read the memo in its entirety: