In the clearest indication yet that the Feds are ready and willing to write off Nashville's embattled 287(g) program as the cost of doing business in America, U.S. Attorney Jerry Martin — on behalf of U.S. Immigration and Customs Enforcement — has "disclaimed any interest in the outcome of this litigation."
Martin filed a motion to dismiss the lawsuit brought by Elliott Ozment in federal court because, as we've discussed here, the plaintiff isn't seeking any judgment against ICE.
Ozment was ordered to include the United States as a party to the lawsuit by Chancellor Carol McCoy — even after Martin sent a letter to the parties signaling the Fed's disinterest in joining Metro Government in its defense of Sheriff Hall's 287(g) partnership with ICE, which allows certain deputies to screen inmates for immigration violations. By enforcing federal immigration law, Ozment asserts the Davidson County Sheriff's Office is violating the Metro Charter by exceeding its mandate. This could mean the agreement violates state and local law, automatically running afoul of federal statute, rendering the 287(g) agreement void.
(For a more involved discussion of the challenge and 287(g)'s problems, check this.)
Elliott Ozment, whose legal challenge questions the very legality of the Davidson County Sheriff's 287(g) agreement with U.S. Immigration and Customs Enforcement, filed a motion for an injunction in federal court today to stop Sheriff Daron Hall's deputies from screening inmates for immigration violations. The injunction is preliminary, pending a finding on whether ICE's 287(g) agreement with DCSO violates state and local law.
As you may recall earlier this month, Ozment was forced to add ICE as a defendant by Chancellor Carol McCoy, who agreed with Metro Department of Law attorney Lora Fox that the feds were an "indispensable party" to the lawsuit.
But U.S. Attorney Jerry Martin didn't think so and said as much in a letter to the parties. This action, he wrote, turned on a question of state and local law. McCoy, however, was unswayed. For common jurisdictional reasons, once the U.S. was added, the case was whisked into the U.S. District Court — though Ozment's suit still painstakingly avoids seeking any declaratory judgment against ICE.
The plaintiffs in the case — Daniel Renteria-Villegas, a citizen, and David Ernesto Gutierrez-Turcios, a lawful permanent resident — are seeking a suspension of the program because the 287(g) agreement, the suit says, violates state and local law. The Metro Charter divested the Davidson County Sheriff of his peacekeeping authority except for what is "necessary and incidental" to the keeping of the jails. By exceeding the authority granted him by the charter, Hall is violating a provision of the Immigration and Nationality Act that says immigration enforcement power may only be wielded to the extent consistent with state and local law, according to Ozment's suit.
The Scene mused Thursday on the many rabbit holes Elliott Ozment's challenge to Sheriff Daron Hall's 287(g) agreement with U.S. Immigration and Customs Enforcement could travel down. In a letter from the Department of Justice presented in court last week, the United States said it didn't believe it was an "indispensable party" to the lawsuit, as Metro counsel has claimed, noting the challenge rests on Tennessee law and the Metro charter. Essentially, DOJ claimed no dog in the fight.
Chancellor Carol McCoy, however, had a message for the Feds today: You're in this whether you like it or not. Ozment must now add the United States as a party to the suit, which claims the Davidson County Sheriff's Office is violating the Metro charter by enforcing federal immigration law. It's likely the case will end up before a federal judge. It's also equally likely that a federal judge will remand the case back to Chancellor McCoy because Ozment's suit makes no claims against the federal government, negating its jurisdiction.
The suit could end up before the Tennessee Supreme Court now, depending on what tack Metro takes, but that's conjecture about as iron-clad as reading chicken bones. For a little background on the suit and Nashville's 287(g) program, check this piece.
According to national consensus, that kind of world starts in the mind of a unfathomable madman and ends at a Safeway in Tucson, Ariz., on Jan. 8, 2011. And there is little we can do about it.
Can the same be said about the world that crashed around another Arizona 9-year-old, Brisenia Flores? She and her father Raul were gunned down in their home in Arivaca, Ariz., in 2009, at the direction of Shawna Forde, a woman who moved to the border to lead "ops" as a so-called "Minuteman" (both are her words).
Little Brisenia had been sleeping on the couch with her puppy when a knock came at the door. Three people impersonating law enforcement demanded entry. When the door was opened, the intruders dropped their ruse, found a gun in the house, and started shooting.
Brisenia pleaded for her life. The little girl who loved Belle from Disney's Beauty and the Beast was shot in the head — twice.
On Monday, a jury convicted Shawna Forde of the murder of Brisenia Flores and her father. The two other alleged intruders will stand trial later this year.
A colleague of mine, a fellow native Nashvillian, asked me a poignant question about the crime.
Were the Flores' deaths a result of insanity, or was this a lynching?
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.
The Tennessean joined the 287(g) discussion today with a piece on Migration Policy's numbers, indicating our program targets working-class immigrants with traffic citations and detains few dangerous offenders. What follows is a fair amount of he said/she said. Advocates note he's not following U.S. Immigration and Customs Enforcement priorities — the intention is to nab the worst of the worst — and instead attempts to deport everyone with brown skin. Sheriff Daron Hall then claims he has some sort of special dispensation from ICE to totally ignore its enforcement priorities — priorities specifically enumerated in the agreement he signed.
What's interesting is that the story approaches it like there's some sort of legitimate debate here. There isn't, as we note in a recent story examining 287(g). In fact, the folks over at 1100 Broadway might have saved on dead trees and column inches if they'd read the Memorandum of Agreement (MOA) between the Davidson County Sheriff's Office and ICE. To wit:
Appendix D of the MOA: "To ensure resources are managed effectively, ICE requires the DCSO to also manage its resources dedicated to 287(g) authority under the MOA. To that end, the following list reflects the categories of aliens that are a priority for arrest and detention with the highest priority being Level 1 criminal aliens.
Section V Detention and Transportation Issues: ICE and DCSO will prioritize the detention of aliens in conformity with ICE detention priorities.
Translation: We only have so much federal detention space, so concentrate on the dangerous felons.
It's not that strange contradictions can't be found in DCSO's MOA with ICE (see ICE Hazard). It's that declarations like the following are either falsehoods, Hall hasn't read the MOA, or ICE itself has no intention of following its own stated goals: "The choice is who gets the detainer (immigration hold) and who is taken into ICE's custody," Hall told The Tennessean. "There are jurisdictions where the sheriff's office or police department chose not to put detainers on everyone that they encounter who could be removed. They want to focus their resources, either because ICE has told them that they don't have the detention space or because they want their program targeted."
Isn't that exactly what the MOA says? But for whatever reason, it doesn't get pointed out in the story. Ambiguity reigns when the language of our agreement with ICE is unambiguous.
In a lawsuit filed Jan. 7 in Chancery Court, Ozment argues that Sheriff Daron Hall's ICE agreement violates federal, local and Tennessee law because the Metro Charter stripped him of his law-enforcement authority when it was ratified in 1963. The Tennessee Supreme Court ruled the following year that the Davidson County Sheriff could only exercise powers that were "necessary and incidental" to the keeping of the jails. A provision of the Immigration and Nationality Act — from which 287(g) springs — says 287(g) can only be carried out "to the extent consistent with State and local law."
(For a discussion of the legal challenge and the troubled history of Nashville's 287(g) program, read last week's Scene story.)
In a story in today's Tennessean, the reporter quotes Muzaffar Chishti, director of the New York think tank the Migration Policy Institute, who expresses serious doubts the temporary injunction will succeed because other plaintiffs screened for immigration violations have tried to win similar injunctions and failed. Yet it's pretty clear Chishti isn't familiar with the lawsuit or the particulars of the 287(g) program here in Nashville, and The Tennessean story completely misses the point.
For the uninitiated, the 287(g) program is a partnership with ICE that allows designated deputies to screen anyone in the jail for immigration violations.
In today's Scene, we examine the challenge, talk to some legal experts who think it just might hold water, and evaluate the implementation of 287(g) in Davidson County jails. The challenge hinges upon Ozment's plaintiff, Daniel Renteria-Villegas — a native-born U.S. citizen who got caught up in Hall's dragnet after a Metro Police officer said he heard gunshots coming from an SUV in which Renteria was a passenger.
Some confusion evidently still surrounds the incident. In a story about the suit, The Tennessean stated, "Police said in the warrant that he fired the shots reported the night of the 14th." Since he was picked up on an aggravated assault warrant eight days later for the shots fired, it would make sense that he was the one to pull the trigger, right?
Contrary to what was reported, though, nowhere in the arrest warrant does it say he pulled the trigger. It simply has him fleeing from the car. (No one was shot in the incident.) In fact, the judge ultimately dismissed the charge because it was known Renteria didn't fire the gun. In all likelihood, Renteria was arrested on the aggravated-assault beef because Metro Police hoped he'd roll on the real troublemaker. It's an important distinction to make, because otherwise it gives the impression that the charges were dismissed on a technicality.
Immigration attorney Elliott Ozment filed a lawsuit in Chancery Court Friday afternoon that aims to dismantle the Davidson County Sheriff's 287(g) agreement with U.S. Immigration and Customs Enforcement — an agreement that allows designated deputies to screen anyone in Sheriff Daron Hall's jails for immigration violations.
In his filing, Ozment alleges the Metropolitan Charter of Nashville and Davidson County and a Tennessee Supreme Court opinion have stripped the Davidson County Sheriff of his police powers. By enforcing federal immigration law, Ozment argues, his office is violating both the Charter and a provision of the Illegal Immigration Reform and Immigrant Responsibility Act, which says 287(g) powers may only be carried out if they are "consistent with state and local law."
The plaintiff in this case is a 19-year-old U.S. citizen named Daniel Renteria-Villegas, who was arrested for allegedly firing a gun near El Coyote on Glenrose — a charge which was subsequently struck down by a judge. Nevertheless, he was processed through 287(g), Ozment alleges, because of his brown skin, poor English and because the arresting officer recorded his birthplace as Mexico, despite the fact that Renteria was born in Portland, Ore. The Metro Police officer who arrested him, Rickey Bearden, Sheriff Daron Hall and Metro Nashville government are named in the complaint.
Davidson County's program and the 287(g) program at large have come under fire from advocates, the Government Accountability Office and the Homeland Security Office of Inspector General for processing undocumented immigrants brought in on petty charges. ICE's stated goals are to use the program to remove only dangerous criminals.
For an in-depth examination of Ozment's argument and Sheriff Daron Hall's 287(g) program, watch for next week's Scene, due out Jan. 13.
The program at large, including Davidson County, has come under fire in recent years — not just from advocates, but from the Government Accountability Office and the Homeland Security Office of the Inspector General — for scooping up undocumented immigrants arrested on petty charges like driving without a license, contrary to ICE's stated goals.
For his part, Chafee said he didn't want State Police enforcing federal immigration law.
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