The federal government, however, disagrees, as evidenced at this morning's hearing. At first silent on the matter, the U.S. Department of Justice sent a letter to both parties this week, indicating that the United States doesn't believe it's an indispensable party — and moreover, that it didn't intend to show up at the hearing. Ozment's suit, DOJ counsel noted, challenges violations of Tennessee law and the Metro charter. From the beginning, Ozment's suit took pains to avoid including 287(g) officers and the federal government, apparently hoping to allow the challenge to hinge on the tenets of the Metro charter and to avoid compelling the United States to join Metro in defense of the program, as it would be required to do under its agreement with the Davidson County Sheriff's Office.
Indeed, the lawsuit claims that the Metro charter, which divested the Davidson County Sheriff of his law enforcement authority nearly a half century ago, allows the Sheriff to carry out only the duties that are "necessary and incidental" to the maintenance of the jails. A clause in the Immigration and Nationality Act states 287(g) participants may only wield immigration authority to the "extent consistent with State and local law (emphasis ours)." This, Ozment argues, precludes the Sheriff from participating, because enforcing federal immigration law is hardly "necessary and incidental" to the keeping of local jails.
In court, Metro counsel Lora Fox said it was understandable that the United States wouldn't want to join as a defendant in the lawsuit, but that it was clear, since an ICE supervisor is present at the jails, that it was an essential party. As of this writing, however, Metro has made no mention of this in any of its motions. What's unclear is what Metro's next move will be after losing a major tent-pole of its defense so far — and its hope that the DOJ would bring its own legal firepower aboard.
Even muddier is the venue in which the 287(g) challenge may be heard, despite the United States' obvious reluctance to join the scuffle. If the court forces Ozment to add the United States as a defendant, the suit could get kicked over to federal court. If the court dismisses the challenge for failing to include the U.S., as Metro counsel has argued, it could end up in a state court.
The 287(g) program came under fire soon after its inception from civil-rights advocates who say the program racially profiles as a matter of course. Over the last several years, both the Homeland Security Office of Inspector General and the Government Accountability Office have found that too often 287(g) programs around the country recommend deportation for undocumented immigrants arrested on petty crimes, contrary to stated priorities that the program be used to nab only the dangerous offenders.
The named plaintiff in the suit, Daniel Renteria-Villegas, was arrested last August on suspicion of evading arrest and contributing to the delinquency of a minor after a Metro Police officer claimed he heard gunshots coming from an SUV he was a passenger in. He later bonded out, but was re-arrested a short time after for the shots fired — charges that were subsequently dismissed by a judge when it was found he hadn't, in fact, fired any shots.
Nevertheless, he was detained for nine hours more on an ICE hold, despite having provided a Tennessee Identification Card and a valid Social Security number. Renteria wasn't just in the U.S. legally, he was born in Portland, Ore. Those hours of detention after the charges against him were dismissed, Ozment argues, are central to the complaint and the temporary injunction he filed, which he believes illustrates that the program is deeply flawed and disproportionately zeroes in on Hispanics.