Cox says he wants an ICE facility in Utah

Utah Governor Spencer Cox speaks during his monthly news conference in February 2022. Photo: Utah Gov. Spencer J. Cox

Staffing issues and federal law make the governor’s request complicated, experts say

By: Kyle Dunphey, Utah News Dispatch 

Utah Gov. Spencer Cox on Thursday said he wants U.S. Immigration and Customs Enforcement to build a detention facility in Utah so the agency doesn’t have to transport detained migrants to Las Vegas, which he said is creating a backlog.

But the governor said efforts to work with ICE to allow state-run facilities to hold detainees for longer have been unsuccessful.

“We would love to have a holding facility here and we have made several offers to make that easier so there isn’t this backlog when it comes to transportation,” Cox said Thursday during his monthly PBS news conference.

“We can offer up these facilities and they’ve turned down our offers unfortunately. I think they like the problem, exacerbating the problem, and that’s deeply frustrating,” Cox continued.

ICE did not respond to a request for comment by publication time. However, staffing issues could explain why the agency wouldn’t be able to operate a facility in Utah, per the governor’s request.

“ICE doesn’t have the manpower to run a whole facility,” said Adam Crayk, a Utah-based immigration attorney. “There’s this issue between the feds and the state, where the state is willing to offer space but feds don’t have manpower to actually run that space.”

In lieu of an ICE facility, Cox said Utah is detaining migrants “who enter illegally and commit crimes.”

“The problem has been with the Biden administration and ICE officials, the closest detention facility for us is in the Las Vegas area in Nevada,” Cox said. “ICE, the federal government, is supposed to transport these illegal immigrants, these lawbreakers, back to that holding facility where they can then be processed. … We can hold them even longer here, but the Biden administration has put these rules in place that make it impossible for our jails to do that. It’s deeply frustrating.”

However, instructing jails to hold detained migrants for longer periods of time could run afoul of federal law, Crayk said.

If an undocumented person is arrested and incarcerated, ICE will place an immigration hold on them, but they are still in state custody. And if the arrest was for a non-felony offense, like a DUI, it’s unlikely a judge will order that person to remain in custody for a long period of time.

Once a judge orders their release, the immigration hold is activated and ICE is notified that the jail cannot keep the person for more than 48 hours. Crayk said attempting to keep the person in custody for longer could be a violation of the Constitution.

“The jails don’t hold them because they can’t hold them. The jail has an obligation to let someone out,” said Crayk. “ICE agents have this difficult proposition hanging over their head as to what they are going to do with that person.”

Something like a DUI is not typically a deportable offense, said Crayk. Often, it’s classified as a public safety offense, meaning their unlawful presence in conjunction with a misdemeanor has placed the public in danger.

ICE will then pick the person up and transport them to one of three immigration holding facilities in the Las Vegas area. Twice a week, the agency runs a shuttle from Salt Lake City to Las Vegas for these types of cases.

There, a judge will decide whether the person should be released under a bond. For that to happen, the person needs to prove they are not a danger to the community or a flight risk.

Whether the proceeding takes place in Salt Lake City or Las Vegas, nothing guarantees the person won’t be released.

“It just means an immigration judge will make a decision as to whether or not the federal government wants to release that person back to the community,” said Crayk.

Cox has repeatedly criticized the federal government and Biden administration for its immigration policies. That rhetoric continued on Thursday.

“I’ve reached out to Sec. Mayorkas directly and again, with ICE officials here,” Cox said during his news conference. “We’ve had several meetings with the Department of Public Safety as well as the Sheriffs Association and so were getting to a better place, but again, the federal government when it comes to border security, when it comes to processing illegal immigrants, when it comes to deporting those who have broken the law, they are failing the country at every turn.”