Denver Challenges DHS Subpoena, Will DHS Fold?
01/18/2020
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Recently, U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations (ICE ERO) served an administrative subpoena on the City of Denver for information about four illegal aliens held by the Denver Police. This strategy was to get around Denver’s refusal to respond to or adhere to two Department of Homeland Security (DHS) legal documents, a detainer and an arrest warrant, Forms I-247A and I-200, both authorized by Federal statute, i.e. an immigration officer is authorized to arrest any alien and detain that alien based on a reasonable belief the alien is in the United States unlawfully under Title 8 United States Code Section 1357(a).

Furthermore, an immigration officer can ask any law enforcement officer in the United States to hold such an alien for three business days based on the detainer and warrant under 8 USC 1357(d). These authorities are not administratively created, but in Federal statute. Also under 8 USC 1357(a), an immigration officer may subpoena any records held by any person or organization about any alien. Regulations for DHS administrative subpoenas are under Chapter 8 Code of Federal Regulations Section 287.4. This makes compliance mandatory, subject to arrest for obstruction of an administrative proceeding under Title 18 USC 1505, Obstruction of an Administrative Proceeding.

The City of Denver has responded to the ICE ERO subpoena, and they have refused to provide the subpoenaed information, claiming they do not have to provide any information related to immigration enforcement.

Denver officials on Thursday said they would not hand over information requested by U.S. Customs and Immigration Enforcement on four men wanted for deportation.

ICE, the Homeland Security agency tasked with arresting and deporting people in the U.S. illegally, sent four administrative subpoenas earlier this week to law enforcement looking for information on three Mexican nationals and one Honduran who had been in custody in Denver.

It was the first time subpoenas had been sent to a law enforcement agency — an escalation of the conflict between the Trump administration and so-called sanctuary cities.

[Denver Officials Won’t Hand Over Information Sought By ICE, by Colleen Long, Associated Press/Border Report, January 17, 2020]

Denver was quite blatant about their contempt for these subpoenas, and they laid down a marker.

Chad Sublet, Senior Counsel to the Department of Safety in Denver, noted in a letter to ICE officials that the subpoenas were administrative — not issued by a judge — and there was no verifiable information on the documents to show the purpose was for law enforcement and not civil immigration enforcement.

“The documents appear to be a request for information related to alleged violations of civil immigration law,” he wrote. “Based on these facts, we are denying your request.”

Sublet wrote the subpoenas could be “viewed as an effort to intimidate officers into help enforcing civil immigration law.”

There we have it. The next step in the process is for ICE ERO to go the U.S. Attorney’s Office for the District of Colorado (USAODCO), and request that they obtain an order from a Federal District Court to comply with the subpoena. This process and appeals could take years, so the viability of this strategy is questionable. One could hope for a hard-nosed judge who orders immediate compliance, and compliance despite any appeals, and, if Chad Sublet refuses to comply, issues an arrest warrant for contempt of court. Highly unlikely though.

A better strategy could be one of two more effective strategies; obtain a search warrant for the information and raid the City of Denver, seize their computer system, and take it away to review at the leisure of the ICE ERO officers. The second strategy, and these two are not necessarily exclusive, is to obtain an arrest warrant for Sublet for violation of Title 8 USC 1324, Bringing In and Harboring Certain Aliens and the above 18 USC 1505. This would be the shock and awe strategy, letting Sanctuary Cities know that DHS and the Department of Justice (DOJ) are serious about punishing their support for illegal immigration.

The only question is does Chad Wolf, DHS Secretary, have the balls to actually do something about Sanctuary Cities, or is he just another Kevin McAleenan? Stephen Miller should make it happen. Wolf has talked the talk about driver’s licenses for illegal aliens, can he walk the walk?

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