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The Feds toss the hot potato of a 287(g) legal challenge back to Metro

Thin ICE



In what could become a game of musical venues, attorneys representing Metro Nashville filed a motion in Chancery Court last month to dismiss a lawsuit brought by immigration attorney Elliott Ozment. The suit filed by Ozment challenges the legality of Sheriff Daron Hall's 287(g) agreement with U.S. Immigration and Customs Enforcement — a controversial arrangement that allows certain deputies to screen anyone brought into the jails for immigration violations.

In its filing, Metro argues that the legal challenge should be dismissed for failing to name the federal government and ICE as "indispensable" defendants. The federal government, however, disagrees, as evidenced at a hearing last Friday. At first silent on the matter, the U.S. Department of Justice sent a letter to both parties last 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, the complaint took pains to avoid including 287(g) officers and the federal government. Apparently the attorney hopes the challenge will hinge on the tenets of the Metro charter — and 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 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 maintenance of the jails. (See "ICE Hazard," Jan. 13.) 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 any lawsuit. But Fox argued that since an ICE supervisor is present at the jails, the federal government is clearly an essential party. What isn't clear is what Metro's next move will be after losing a major tentpole of its defense so far — along with its hope that the DOJ would bring its own legal firepower aboard.

Even muddier is the array of possible venues in which the 287(g) challenge may be heard, despite the United States' obvious reluctance to join the scuffle. To head off getting passed over to Circuit Court, Ozment non-suited his claim for damages, leaving only the core charter question for declaratory judgment. If the court forces Ozment to add the United States as a defendant — and Chancellor Carol McCoy signaled a willingness to do that, ridding herself of a political hot potato — the suit could get kicked over to federal court.

Yet it's difficult to say what a federal judge could do with a complaint that doesn't include claims against the United States, particularly when the United States claims no dog in the fight. If Chancellor McCoy dismisses the challenge for failing to include the U.S., as Metro counsel has argued, it could end up in a state court. If the chancellor agrees with Ozment and the feds, of course, it'll stay right where it is.

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 most dangerous offenders. A Scene investigation found that ICE was transporting allegedly undocumented immigrants to federal detention facilities in Louisiana, forcing them to miss their court dates in Nashville — even though resolving the charge that led to arrest is one of ICE's own recommendations.

The plaintiff named 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 in which Renteria was a passenger. He later bonded out after proving his citizenship, but was rearrested a short time after for the shots fired. The charges were subsequently dismissed by a judge when it was found he hadn't, in fact, fired any shots, but by that time he'd spent some two weeks in lockup.

Nevertheless, Renteria was detained for nine more hours on another ICE hold, even though he had provided deputies with a Tennessee Identification Card and a valid Social Security number.

Those nine hours, Ozment challenges, are central to the complaint and the temporary injunction he filed. He argues that Renteria's ordeal shows that the program is deeply flawed and disproportionately zeroes in on Hispanics. Still up in the air, though, is who will hear that argument.


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