Utah is not a ‘sanctuary state,’ Gov. Cox says, citing ‘outdated’ ICE memo shared with state leaders

An “outdated” memo from U.S. Immigration and Customs Enforcement’s Salt Lake City field office that called Utah a “sanctuary state” drew criticism Friday from state leaders, who said the country’s immigration troubles were the federal government’s “failure” — not Utah’s or its sheriffs’ offices.

The public squabble comes as none of Utah’s county jails currently contract with ICE to detain migrants as they await immigration proceedings or removal, said Utah County Sheriff Mike Smith, who is also the president of the Utah Sheriffs’ Association.

The Utah County Sheriff’s Office severed their detention agreement with Immigration and Customs Enforcement in 2016. The Cache and Washington county sheriff’s offices each entered into their own agreement after that, but both contracts have since lapsed, Smith said.

Without such an agreement, county jails cannot hold migrant inmates past the constraints of any local charges. Immigration and Customs Enforcement, however, can still request a detainer that allows a jail to hold someone up to 72 hours past their release date so they can be taken into ICE custody.

The memo that state leaders referenced Friday was drafted on May 31 by Michael Bernacke, the director of Salt Lake City’s ICE field office. It was titled “Sanctuary State Designation for the State of Utah,” and outlined “detention capacity difficulties with the State of Utah” and the “Cache, Utah, and Washington County Sheriff’s Offices,” according to a subsequent memo that Bernacke drafted Friday, obtained by The Salt Lake Tribune.

The Tribune had not received a copy of the original May memo as of Tuesday afternoon.

Smith believes the May memo’s “purpose” was that, “at some point, it would be used politically to try to force Utah sheriffs into housing [ICE] inmates.”

The subsequent memo released Friday described the earlier document as “outdated,” Bernacke wrote. Since its May drafting, “the Salt Lake City Field Office has been working with state officials and sheriffs to address the capacity issues in Utah to further enhance public safety and border security,” he added in the document.

“The State of Utah and associated counties work collaboratively with the Salt Lake City Field Office,” Bernacke continued, “and is not a sanctuary state.” Bernacke noted his earlier designation of Utah as a “sanctuary state” was “notional in nature.”

An ICE spokesperson echoed the October memo in a response released to The Tribune on Tuesday morning, reiterating that the agency’s Salt Lake City field office rescinded the May memo and “maintains open and collaborative efforts with the State of Utah, along with the sheriff’s offices in Cache, Utah, and Washington Counties.”

“The State of Utah and ICE are proud to work collaboratively to ensure that we together are keeping communities safe,” the spokesperson said.

While the original memo was written in May, it made waves last week, eliciting responses from Gov. Spencer Cox, Senate President J. Stuart Adams, House Speaker Brad Wilson, Riverton Mayor Trent Staggs and the Utah Sheriffs’ Association.

Staggs released his response first — which he posted to X, formerly known as Twitter, on Thursday afternoon. He wrote that he was “horrified” to learn Utah had been declared a “sanctuary state” and called on Cox, Adams and Wilson to “lay aside agendas and consider the consequences of continuing down this path.”

Staggs did not immediately return The Tribune’s request for comment Friday evening.

On Friday, Utah politicians and the sheriffs association met with Bernacke, who they said committed to withdraw his earlier memo. He did that in the Friday memo titled “Recission of memorandum dated May 31, 2023, ‘Sanctuary State Designation for the State of Utah.’”

Follow that meeting, Cox, Adams and Wilson released a joint statement Friday afternoon that said Utah sheriffs are “completely justified” in declining new agreements with ICE when the federal agency’s requirements “become too onerous.”

“The border crisis, and the consequent increase in ICE detainees, represents a federal failure, not a state or local failure,” the joint statement read. “Utah’s cities and local law enforcement officials are under no obligation to serve as a backstop for longtime immigration failures at the federal level.”

A governor’s office spokesperson declined to provide additional context about the May memo on Friday afternoon and declined to provide The Tribune with a copy of the document.

The sheriffs association said in their statement Friday that the May memo was “misleading, reckless and damaging to any further interactions with I.C.E.” The association also took issue with Stagg’s Thursday statement, calling it “naïve and uninformed” and “in support of I.C.E.’s liberal agenda that blames state leaders for I.C.E.’s failures.”

“Nothing could be further from the truth,” the statement continued.

The association’s statement went on to say that previous contracts with Immigrations and Customs Enforcement subjected local sheriff’s offices with an “unending list” of regulations, many outside of Utah’s current county jail standards.

In a phone call Friday evening, Smith said the agreements, for instance, required separate entryways and housing for ICE detainees, as well as a different disciplinary system when such detainees break jail rules. He added that ICE pays less than a jail’s daily rate to house the federal detainees.

He said those requirements aren’t feasible, and that when jails don’t follow those rules, they open themselves up to lawsuits and “special interest group” scrutiny. Those factors render such agreements undesirable, Smith said.

Smith added that as more migrants enter the U.S., Utah’s migrant population is going to increase.

“And then for Bernacke to turn around and try to blame the Utah sheriffs for the result of their failures is just, to me, beyond ridiculous,” Smith argued. “I don’t know how the Utah sheriffs at this point could move forward working with Bernacke when he has executed that level of a breach of trust with us.”