Will an arcane legal challenge bring down Nashville's controversial 287(g) program? 

ICE Hazard

ICE Hazard

Daniel Renteria-Villegas does not seem like an ideal poster child for a social-justice challenge. But he may become one. On Aug. 14, 2010, a Metro K-9 officer claimed he heard shots coming from a 1995 red Honda Passport, parked out in front of the club El Coyote on Glenrose. The SUV sped off, and a pursuit began — a short pursuit. About half a mile down the road, the vehicle slammed into a railroad-crossing pole.

Several people sprinted from the wrecked SUV. But one was quickly brought down, hard, by the K-9. After being treated for dog bites, Renteria, 19, was booked on two misdemeanor charges: suspicion of evading arrest, and contributing to the delinquency of a minor for the 17-year-old girl in the car. He later bonded out, but a couple of days later, Metro Police showed up at his house with an arrest warrant for the alleged shots fired. He was booked Aug. 22 on an aggravated assault charge.

But that would be the least of his troubles.

Almost immediately, Renteria was marked for what is commonly known as an "ICE hold." That's a detainment by U.S. Immigration and Customs Enforcement, or ICE. In Renteria's case, it meant he was suspected of being an undocumented immigrant — grounds for deportation.

But ICE agents weren't the ones who zeroed in on him. Instead, the officers who fingered Renteria worked for the Davidson County Sheriff's Office, the entity that operates our local jails.

Under the controversial program called 287(g) — an agreement with the Department of Homeland Security and ICE — Sheriff Daron Hall's ICE-designated deputies can screen anyone who enters the jail for immigration violations. The deputies can file a recommendation to make any suspected illegals appear before an immigration judge, which an ICE supervisor then signs off on.

At root, it's a recommendation to deport. ICE can detain any suspect until his immigration hearing, if it so chooses. It also essentially serves as a force multiplier for ICE — more boots on the ground, at a fraction of the price. So the system works, right? This Renteria sounds like a troublemaker. If he's in this country illegally, why, boot him right back to where he came from.

Except that "where he came from," for Renteria, is the city of Portland, Ore. Daniel Renteria-Villegas is a United States citizen. Yet when Metro Police Officer Rickey Bearden took down his information in the arrest report, he listed Renteria's place of birth, for some reason, as Mexico.

Daniel Renteria-Villegas speaks poor English and has brown skin. Combined with the birthplace error, that was enough to make a fully legal American citizen a suspected undocumented immigrant on track for a deportation recommendation. It didn't seem to matter that he had a Tennessee Identification Card, which requires proof of citizenship or lawful immigration status. Nor did it make much difference when he recited his Social Security number for the 287(g) officer and it came back valid. Or that he could name the Portland hospital where he was born.

A judge would later dismiss Renteria's aggravated assault charge on Sept. 3 for lack of probable cause. As it turned out, he hadn't fired the shots. But his inmate log indicates that even after he was cleared, the ICE hold remained against him for nine more hours. Three hours after that, he was released.

By that time, for a dismissed charge, Daniel Renteria-Villegas had spent almost two weeks in jail.

Those last nine hours, though, could be the downfall of 287(g), a program that has brought harsh rebukes from critics while bringing Sheriff Hall the approval of conservatives and anti-immigrant factions. As a result of his experience, Renteria is now plaintiff in a lawsuit filed Jan. 7 in Chancery Court by immigration attorney Elliott Ozment. While Ozment declined to comment on pending litigation, the suit draws a clear bead on the sheriff's pet program.

Naming Bearden, Hall and Metro Nashville government as defendants, the suit contends Renteria was wrongfully detained even after he'd proven his citizenship beyond a shadow of doubt. It suggests the case raises grave questions about Sheriff Hall's oft-repeated contention that his department's 287(g) program is all but incapable of racial profiling.

But that's not the facet of the suit that has the program's foes and legal observers intrigued. In an inspired tactical gambit, Ozment asserts that by screening for undocumented immigrants, Hall's 287(g) program violates local, state and federal law. It does so, he challenges, not by lofty indignities to human rights, but by exceeding the powers delegated to Hall's office by the musty old Metropolitan Charter of Nashville and Davidson County.

What sounds like a mundane argument could be a deathblow in disguise. And it opens doubts about the application, as well as the motivations, of a program that has roused a wildfire of debate.

In a bizarre coincidence, the most serious challenge to Sheriff Hall's partnership with ICE may come not from an undocumented immigrant named Villegas whose plight disturbed many — i.e., Juana Villegas, who went into labor while handcuffed to a gurney in one of his jails — but from a legal citizen by the same name without a sad story. Just as curiously, the end of the sheriff's 287(g) program could conceivably be brought about by dusty legal arcana, not white-hot charges of racial profiling and constitutional violations.

Yet that's where Ozment sees the roots of 287(g)'s demise. Making Davidson unlike every other county in Tennessee — where sheriffs have full police powers — the 1963 charter that created the city and county's combined metropolitan government carved up responsibilities between Metro Police and the sheriff's office, to prevent overlap. The sheriff could no longer go out into the public, investigate crimes and make arrests. His only responsibilities would be to serve civil process and maintain the jails.

That didn't sit well with Robert Poe, then Davidson County's sheriff. Poe sued Metro government quickly after the charter's ratification, claiming it violated the Tennessee Constitution by stripping his law enforcement authority. The Tennessee Supreme Court, however, sided with Metro in 1964. In a passage key to Ozment's argument, the justices ruled:

"It is plain to us that it is the purpose and intent of the Charter to take away from the Sheriff the responsibility for the preservation of the public peace, prevention and detection of crime, apprehension of criminals, protection of personal and property rights except insofar as may be necessary and incidental [emphasis ours] to his general duties as outlined in T.C.A. sec. 8-810 and to transfer such duties to the Department of Police of the Metropolitan Government."

Those general duties are the maintenance of the jails. A half-century later, Ozment's complaint asks one essential question: Is enforcing federal immigration law "necessary and incidental" to policing the local jails?

And if it isn't, as Ozment argues, there's another line in section 287, subsection (g) of the Immigration and Nationality Act that could bring down the whole house of cards: 287(g) officers may carry out these immigration functions only "to the extent consistent with State and local law."

If the 287(g) agreement violates the Metro Charter, Ozment argues, it automatically violates federal law. That's the part that has other attorneys convinced Ozment may have something.

"The sheriff under the Metro Charter does not have police power and cannot interrogate," says David Esquivel, a Nashville attorney who served as lead counsel in a 2005 suit against a former El Salvador government official for war crimes. "And the agreement with ICE and the training manuals and all sorts of evidence make very clear that what happens under 287(g) is an interrogation by sheriff's officers. They can't do that. The memo with ICE says the agreement can't violate state or local law. That seems pretty conclusive to me."

"This is a very stark line that the charter drew, and it drew it for the purpose of not overlapping services provided by the sheriff and police," says Alistair Newbern, who runs the Vanderbilt Law School Appellate Litigation Clinic. "That's the point of Metro consolidation, right? Not to waste taxpayer money by having two law enforcement agencies who do the same thing."

Through a spokesperson, Sheriff Hall declined to comment on pending litigation.

None of this would be happening, if not for the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It introduced the idea that someone's very presence in the United States could be "unlawful," and allowed for the deportation of undocumented people convicted of misdemeanors. Critically, it also allowed for closer cooperation between the federal government and local and state authorities, now known as 287(g).

Not until Sept. 11, 2001, did anyone think of local officers working hand in glove with the feds to enforce immigration law. It wasn't until 2002 that Florida signed the first 287(g) agreement because several 9/11 hijackers had apparently lived there. As the debate over illegal immigration heated up, funding and applications for 287(g) agreements proliferated by 2006.

That year, an undocumented Nashville man, Gustavo Garcia Reyes, killed a couple from Mt. Juliet, Donna and Sean Wilson, while driving drunk. He'd been popped repeatedly for drunken driving. Now the public clamored to know how he kept getting out of jail without getting deported. It was a question for which no one seemed to have a good answer.

Enter Sheriff Daron Hall, custodian of the jails. With public outrage fresh, he successfully petitioned the federal government to approve Davidson County for the 287(g) program. It was implemented here at the start of 2007.

More than 90 different state and local entities across the country now participate in the program. For ICE, it looks like a win-win. According to the Department of Homeland Security, the average cost of a first-year ICE agent is estimated to be roughly $130,000. A first-year 287(g) officer, on the other hand, costs the federal government about $20,000. And like all other participants at the local level, in Nashville the sheriff's office pays their salaries.

If 287(g) is a cost-saver for the federal government, it's a flat-out moneymaker for private prison contractors such as Nashville juggernaut Corrections Corporation of America. Ninety-six percent of prosecuted immigration offenders receive a prison sentence, according to Pew research — a bigger percentage than almost any violent offense.

What's more, federal immigration violations now constitute the single largest category of prosecutions on the federal criminal docket: about 35 percent, in 2010. That means more prisons, more inmates — and more business. It's a business model Sheriff Hall would know well, as a former CCA program director.

From the outset, the stated goals of ICE and Homeland Security with 287(g) have been to remove only the most dangerous criminal aliens. The initial contract between ICE and the sheriff's office even cemented the goal in writing. In no uncertain terms, it stated that 287(g) officers would only process undocumented immigrants convicted of state or federal felonies for deportation. At least in initial public statements, Hall seemed to agree.

"The ultimate goal is to increase public safety by detaining and removing those who pose a risk to the Nashville community," Hall told Hispanic Nashville in January 2007.

In practice, though, the sheriff's program has been out of step with ICE's stated goals from the very beginning. For the 2009 review of the first two years of Hall's 287(g) program, it was found that 85 percent of those processed for immigration violations were arrested on misdemeanor offenses — most often for driving without a license.

This disturbed advocates who feared, despite public pronouncements, that 287(g) was being used to round up undocumented immigrants, regardless of the seriousness of the crime.

"Are people ending up in the sheriff's custody for offenses they might not normally end up in the jail for, because of some suspicion that they're not in the country legally?" Newbern asked.

Indeed, right after the program began, a Criminal Justice Planning analysis of Metro Police COMPSTAT data indicates the arrest rates for Hispanics caught driving without a license doubled. For everybody else, the arrest rates for that offense declined by 25 percent. This was particularly confusing, because Metro police officers don't participate in 287(g) — at least not officially.

In fact, one of Hall's big selling points to ICE was that a firewall would exist between the arrest by Metro Police and the immigration screening at Davidson County jails, because Hall's deputies can't make arrests. Yet the no-license arrest rates raised a logical question: If 287(g) is only being enforced in the jails, why would rates have doubled for Hispanics — unless Metro Police were using the no-license offense as a pretext to arrest someone they suspect could be deported?

Ozment has often said that 287(g) encourages racial profiling. Sheriff Hall, on the other hand, argues our system of General Sessions judicial commissioners — who determine whether an arrest is valid before booking — ensures that illegal immigrants aren't picked up on bogus charges or racially profiled. So who is right?

First, it's important to understand that ICE district counsel must prove to an immigration judge that a person is here illegally. In that way, it's not much different from the relationship between a cop and a district attorney, the 287(g) officer being the cop. If the person can prove he has a right to be here — as Renteria did — he should get off the ICE hold and out of jail.

But here's where the police/287(g) similarities end. If for some reason Renteria couldn't prove it — even if the 287(g) officer hadn't proved he's here illegally — he might end up detained anyway. Frequently, someone like Renteria, who has multiple criminal charges and can't post bond, will get whisked away to a prison in Alabama and then one or two more in Louisiana before ending up detained in a federal prison in Oakdale, La. That's where the immigration court is located for people who can't get or pay a bond — guilty until proven innocent.

Therein lies the danger of a Catch-22 with the General Sessions commissioners. If a commissioner finds probable cause for an arrest, Hall can use that finding as proof the suspect poses a danger to the community — a reasonable basis to recommend deportation. How does Hall know they should be deported? They got arrested, didn't they?

"Okay, I don't know of anybody unless they've been arrested," Hall said in a deposition taken during the Juana Villegas case. "So there is no case you can give me that doesn't include an arrest. ... And the reason that I know that person posed a risk is that they wouldn't be in jail if they didn't."

The problem is, we'll often never know whether the arrest even led to a conviction. That's because ICE doesn't require that 287(g) programs follow through on the original charge. In explaining the procedure to the Scene, Temple Black, an ICE spokesman, made resolving the initial incident sound like the critical first step: "Once the criminal charge is resolved, an ICE supervisor utilizes ICE's enforcement priorities as a guideline when making custody determinations. ..."

So the Scene called bail bondsmen around town to see if ICE adheres to its own stated expectation: that all local charges be pursued to completion before someone is detained in Louisiana. After all, nobody takes a bigger hit than a bondsman if a defendant doesn't show up in court.

To a one, the bondsmen said they wouldn't post bond for someone on an ICE hold. Too often, they said, the defendant is shipped off to a Louisiana detention facility, which causes the accused to miss his hearing — and leaves the bond company holding the bag.

"[The judges] make us pay it off even though the federal government puts their hand on it and ships 'em off, even though they're not supposed to ship 'em off if they got charges here," said a bondsman who spoke only on condition of anonymity.

By spiriting an undocumented person away even after they've posted bail, ICE may actually be violating a provision of the Tennessee Constitution that states anyone can post bail and be released, except on capital crimes. But if programs such as Sheriff Hall's are guilty of straying substantially from ICE's intent, ICE itself is culpable for not more closely monitoring local deputies who suddenly find themselves wielding the power of federal immigration authorities.

A January 2009 study released by the U.S. Government Accountability Office found that federal oversight of 287(g) was patchy across the country. According to the study, many programs were using their immigration enforcement power to process undocumented people for minor offenses, such as open container and driver's license charges. Yet the report found that many of those programs — unlike Nashville's — lacked specific language in their ICE agreements about the type of criminal 287(g) is intended to nab.

That same year, now working for President Barack Obama, ICE drew up a new tiered approach that emphasized 287(g)'s focus on serious criminals. The most serious felonies would be Level One. Minor drug offenses and property crimes would make up Level Two. The rest, small-potatoes misdemeanors, would be lowly Level Three.

From then on, according to federal mandate, 287(g) officers were to focus on the top level, the worst of the worst. And yet the new agreement simultaneously appeared to lower the bar. Instead of a state or federal felony conviction, the suspected undocumented immigrant now needed only an arrest for a local, state or federal offense, which could be just about anything.

Despite this fine print, the new 287(g) priority levels accomplished two things. They appeased immigrant advocates, who were infuriated at all the small-time offenses that had netted potential deportees. And they temporarily quieted conservative critics, who claimed Obama was soft on illegal immigration.

But there remained no accountability system in place to ensure the rules were followed. As of March 2010, hardcore Level One offenders — the program's ostensible focus — made up only 9 percent nationally of those processed through 287(g), according to the Department of Homeland Security's Office of Inspector General. Level Three misdemeanor offenses, however, accounted for a whopping 50 percent.

Last July, an internal ICE memo sent to its field offices identified 11 287(g) programs across the country that were recommending deportation for too many people brought in on minor offenses. Davidson County's was one of them. "Aliens convicted of the most serious crimes are the highest priority," the memo read.

The audit also indicated that from January to March 2010, 73 percent of the undocumented people processed through Davidson County's 287(g) program were arrested on petty charges. Interestingly, the office's 287(g) priorities were in much better alignment during the following three months, despite the fact that the number of undocumented people processed through the program remained fairly consistent. In fact, the percentage of Level Three offenses was halved.

ICE spokesman Black addressed this abrupt turnabout only obliquely: "ICE also may, on a case by case basis, exercise prosecutorial discretion and not make an administrative arrest." He went on to say that the buck stops with ICE supervisors, who are charged with ensuring that the program's priorities are followed.

What this does not explain is why, throughout the program's entire existence, 287(g) criminal priorities were rarely observed — and why so many Level Three misdemeanors ended in notices to appear before an immigration judge.

The answer may be found in sheer numbers. Davidson County's program turns out a relatively high number of deportation recommendations — nowhere near Los Angeles or Maricopa counties, but still among the top. In December, a Washington Post story showed that's where Washington's priorities truly lie.

The story reported that ICE brass were pushing field-office directors to deport as many people as they could before the end of the fiscal year 2010 — in order to break last year's record. Typically, even charges like drunken driving and misdemeanor assault would have required undocumented immigrants to go before an immigration judge. Now, ICE officials were going so far as to suggest giving undocumented immigrants with these kinds of offenses the ability to voluntarily return to their native country, without a ding on their immigration record.

They got the numbers they wanted. "It has been another record-breaking year at ICE," Homeland Security Secretary Janet Napolitano said, announcing the more than 390,000 deportations in 2010 — more than the Bush administration or any other before. In private, ICE was pushing quantity above all else. Publicly, Napolitano was touting the program's ability to post those blockbuster deportation numbers "in sensible, firm and thoughtful ways."

Particularly under 287(g), however, ICE's enforcement has been anything but sensible and thoughtful. Since the beginning, some 186,000 people have been identified nationwide for deportation or voluntary removal under 287(g). But according to ICE's own statistics, only 127,000 were actually deported.

Following a Freedom of Information Act request, Syracuse University obtained overall ICE deportation numbers, finding a similar pattern for the last three months of fiscal year 2010: Roughly one in every three attempted deportations by ICE was rejected by an immigration judge — either for humanitarian reasons, or because of some other wrinkle in the most complex system of laws in the United States. ICE declined to release more detailed information about which program, whether 287(g) or others, was responsible for most of the thwarted deportations.

In the roughly four-year existence of Davidson County's program, some 8,400 people have been identified for deportation or voluntary removal by Sheriff Hall's 287(g) deputies, who receive about four weeks of ICE training. Only 5,600 ended up being deported — a percentage slightly worse than the national 287(g) average. If you factor in the total number of people in Davidson County detained on ICE holds and interviewed — which is 13,500 — the percentage deported drops to 41 percent.

The problem, ICE critics say, isn't just that Davidson County's 287(g) program and many others fail to scoop up the right kind of undocumented immigrants. It's that the program is detaining people who aren't legally deportable. A 19-year-old kid like Daniel Renteria-Villegas got tangled up in the system even though he's a citizen and he proved it from the start.

But even repeat offenders like Gustavo Garcia Reyes — the undocumented serial drunk driver who provided the impetus for the sheriff's office to enter the program — don't adequately explain the need for 287(g). Even before the program, Davidson County's sheriff's deputies would have known Reyes had a lengthy string of priors upon booking. If the bond had been set high enough, or if the criminal penalties for repeat offenders were strict enough, it's unlikely an alcoholic of limited means would have been careening through the streets again.

So when someone like Reyes gets out, is it less an immigration issue and more a criminal justice issue? It cuts to the heart of Sheriff Hall's justification for partnering up with ICE. For all the bluster about weeding out the worst of the worst, the practice on the ground hasn't matched the preaching in Washington, D.C. Nor has the preaching in Washington always matched what ICE officials expect in private communications.

As the legal battle over 287(g) nears a Davidson County courtroom, the larger debate may form around two questions. First, why did we really sign on to the program — to rid the city of dangerous criminals, or undocumented immigrants? Second, and perhaps more to the point, do we even need it? Tennessee recently passed a state immigration law requiring jailers to ask whether someone is here illegally and place the suspect on a 48-hour ICE hold if he isn't. The law does not apply to places like Nashville, which already has a program with ICE — but it would seem to cover the same territory.

As for the Reyes problem, it's an anachronism now. Because of ICE's ambitious new program, Secure Communities, a massive link-up of Homeland Security and FBI databases, an undocumented offender would receive an ICE hold as soon as the database returned a hit. He'd be picked up soon after and put into immigration detention. Simply put, it's not 2006 anymore.

Certainly not for ICE. For 2011, their national goal is 404,000 deportations. It could be another record-breaking year.

Email editor@nashvillescene.com.

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