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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.