In April, a Worthington man named Rodrigo Esparza was arrested for receiving stolen property -- the loot from a number of burglaries in surrounding counties, including stolen firearms, jewelry, and cash. The Nobles County Jail set his bond at $10,000.
But Esparza says the dollar amount was beside the point. Jail staff, he says, told him and his family that they weren’t going to release him -- whether they paid or not.
Backing them up is the Sheriff of Nobles County, Kent Wilkening, who says he has permission from Immigration Customs Enforcement, better known as ICE, to keep the man in custody.
On Thursday, the American Civil Liberties Union (ACLU) of Minnesota filed a class action lawsuit against Wilkening on behalf of Esparza and three other inmates. The complaint says Wilkening has been detaining them -- Esparza, Maria de Jesus de Pineda, Timoteo Martin Morales, and Oscar Basavez Conseco -- for days, weeks, even months after they were supposed to be released. Wilkening didn’t respond to interview requests.
“This is something that’s going on around the country,” the inmates’ lawyer, Norman Pentelovitch, says. ICE regularly requests local law enforcement to hold onto inmates they suspect might be in the country illegally, even after they’ve posted bail or served their sentences. It’s called an “immigration hold” or sometimes an “ICE Hold.”
Esparza says he’s actually a legal resident with a green card, but since ICE holds are not reviewed, approved, or signed by judges or judicial officers, he still got slapped with one. ICE has the first and last word.
Pentelovitch says Wilkening, and all Minnesota sheriffs, are bound to the state constitution and statutes, and that requests from ICE don’t give law enforcement the power to supercede them. And this isn’t the first time Wilkening has been warned about using ICE holds.
In 2017, Wilkening squared off against a man named Jose Lopez Orellana in Federal District Court. Orellana was arrested in 2014 for a DUI. While he was booked at the Nobles County Jail, he admitted that he was in the country illegally. This information was passed on to ICE, which issued an immigration hold for Orellana.
The next day, Orellana showed up for a bail hearing. District Court Judge Jeffrey Flynn was setting the terms -- $12,000 bail, or $6,000 if Orellana agreed to electronic alcohol monitoring -- when he stopped short.
“...I am told that there is [an] immigration hold on this gentleman, so I wouldn’t give anybody any money, because they’re not going to let you go anyway,” he said.
He was right. When Orellana’s wife, Maria Rosalina Flores De Lopez, eventually showed up and tried to pay his bail, she said, the staff wouldn’t accept her money. Her husband remained in jail, and was sentenced to 360 days. He was supposed to be released on bail Nov. 21, but he was detained until Dec. 1.
Judge Ann D. Montgomery didn’t approve Orellana’s motion. He couldn’t prove damages because the extra time he spent in jail earned him credit toward his eventual release. However, she did determine he’d been kept in jail illegally for 10 days. As part of the settlement, Wilkening agreed to tweak his immigration detainer policy:
“No individual should be held based on a federal immigration detainer… unless the person has been charged with a federal crime or the detainer is accompanied by a warrant, affidavit of probable cause, or removal order,” the new policy read.
Despite this, last Thursday's ACLU complaint says, he “routinely ignores this policy and instead has his staff detain anyone for whom ICE issues and ICE hold.”
According to the complaint, based on a contract between Nobles County and the Department of Justice, “...Nobles County actually earns money -- approximately $20,000 per month -- for every immigration detainee held in Nobles County Jail.”
Pentelovitch is hopeful this will be resolved quickly. But until there’s some action on the state level to ensure law enforcement cooperates, he says, this will just keep happening.
“I think the end would be when the courts tell sheriffs that they are not allowed to do this any longer.”