Armed with old arguments and new data, Davidson County Sheriff Daron Hall set out last week to sell Nashville again on the controversial 287(g) program.
Following a federal review of the program, a revised version of 287(g) was up for Metro Council approval last Tuesday. The occasion reignited the debates that have followed the county's immigrant screening program since 2007.
However, as the votes last week showed, Council has swung its support firmly behind the program and Sheriff Hall. After a unanimous vote for approval from the Public Safety Committee, Council passed the revised version of the program with a 34 -3 vote.
To supporters, approval was an affirmation of the program's goals. But for critics, the issue is far from over.
Attorney and Conexion Americas board member David Esquivel recapped his criticism of the Nashville program in an interview with The City Paper. Conexion's mission is to help Latino families succeed socially and economically by promoting their integration into the Middle Tennessee community.
Esquivel, citing a U.S. Government Accountability Office study issued earlier this year, says the local program is out of step with the underlying goals of 287(g).
But according to Hall, the Sheriff's Office setup is completely in line with what the Obama Administration would like to see across the country. More than 5,000 individuals have been identified as illegal immigrants in Nashville because of 287(g).
Esquivel and other critics take particular issue with the sheriff's decision to process both misdemeanor and felon offenders through 287(g) screening. The program's goal is to improve public safety by sweeping up violent criminals and felons, they say, but instead of focusing on this group, 287(g) processes minor offenders who pose no immediate threat to the community.
“The reality of the program here is that the vast majority of people who are being identified by this program have committed misdemeanors,” Esquivel said. “Rather than focusing on what I think there's a broad consensus on — which is using this program to target real criminals — we're using it to target people who are not criminals in any sense that the community had in mind when this was rolled out or what it ought to be used for.”
Hall defends the decision to screen every individual passing through the jail, maintaining the program is a preventative protection for the community.
“The problem with the way the system was working three years ago was it only focused on a dangerous felony offender once that event occurred, which was way too late to improve the public safety of our community,” he said.
But the concern over minor crimes is emphasized in the GAO report. The review states that “of the 29 participating agencies we reviewed, 4 agencies told us they used 287(g) authorities to process for removal those aliens the officers stopped for minor violations such as speeding, carrying an open container of alcohol, and urinating in public.”
The report goes on to state, “none of these crimes fall into the category of serious criminal activity that U.S. Immigration and Customs Enforcement officials described to us as the type of criminal activity… the 287(g) program is expected to pursue.”
Neither the report nor the original 287(g) legislation prohibit agencies from screening minor offenders, but the GAO's concern grew out of the lack of available resources.
“Detention space is routinely very limited and it is important for ICE to use these and other 287(g) resources in a manner that will most effectively achieve the objective of the program — to process for removal those aliens who pose the greatest threat to public safety,” the report says.
Sheriff Hall's decision to screen both misdemeanor and felon offenders wastes 287(g) resources, according to Esquivel. The report shows the Nashville program to be in the minority of jurisdictions screening across the board, he says, and if the agency exclusively targeted felons it could better achieve its stated goal.
“There is a way to do this program that would address a lot, if not all, of the concerns that have been raised, and it's hard to understand why the Sheriff won't make that change,” he said.
Hall contends the GAO report, despite being issued this year, is out of date. Numerous agencies have added the program since the study was conducted and many are using 287(g) to screen all defendants entering the jail.
The Sheriff said he recently met with representatives from nine other jurisdictions from the Southeast, all of whom use 287(g) in ways nearly identical to Davidson County. Also, in a conversation this year with Janet Napolitano, the U.S. Department of Homeland Security secretary, Hall said he was told the administration would like to see the jail program adopted by other jurisdictions.
The debate over who should be screened by 287(g) is further complicated by a minor revision included in the new version of the program. There will now be a tiered prioritization of detention for those screened by the program, as laid out in the revision.
Some immigration advocates have seen this move as a discretionary safeguard regarding who is screened and who isn't. That perception is wrong, Hall said. All individuals taken to jail will still be processed in 287(g).
In the new structure, screened violent offenders will be put into detention while minor offenders will be given a federal court date.
“It's the prioritization of detention, it's not the prioritization of who you're going to process,” Hall explained. “[A minor offender] is released through the prioritization system, but from our standpoint they are not ignored in that they are illegally in the country. They have to go answer for that and explain that and the judge will decided what to do with you down the road.”
If the detention revision was in place from the outset of 287(g), the program's biggest controversy might have been avoided.
In July 2008, Berry Hill Police stopped a very pregnant Juana Villegas for apparently changing lanes without a turn signal. Instead of avoiding detention, Villegas was jailed, went into labor, was transported to Metro General Hospital (and reportedly shackled to a bed), gave birth and went hours without seeing her child, and days without seeing her husband.
The deportation process was begun for Villegas before charges were dropped under the glare of local and national media exposure of the case.
Opponents have long criticized the program because it sometimes sends individuals on the path to deportation for something as minor as a traffic stop. And they say the prioritization does not change their opposition to the current structure.
The decision to screen both misdemeanors and felonies has a potential social impact, Esquivel said.
“We have this program that targets people who are not criminals but who may have a misdemeanor offense, like driving without a license,” he said. “If you're an immigrant, you're going to do everything you can to avoid interactions with the police, including reporting being the victim of crime.”