The Knox County Sheriff's 287(g) program has removed undocumented immigrants from their families and communities. But was it created legally?
by jesse fox mayshark, Compass
And Tyler Whetsone, Knoxville News Sentinel
April 1, 2021
Omar, who is facing deportation through the Knox County Sheriff's Office's 287(g) program, poses for a portrait at a residence in Knoxville on Tuesday, Feb. 23, 2021. (Photo by Calvin Mattheis/Knox News)
Editor's note: This report is a joint project of Compass and the Knoxville News Sentinel and is being published by both outlets. It identifies a Knox County resident by his first name only, because of his concerns that he will be deported and separated from his family if his full name is published. In rare circumstances, we will agree to partly shield a person's identity if they have a legitimate fear of suffering harm if they speak publicly and we have no other option for reporting their experience. We have verified details of Omar's account through government documentation, and collected additional information in an interview conducted with the help of Spanish-speaking Knox News reporter Aaron Torres.
A state law says immigration enforcement agreements must be approved by County Commission. Knox County's was not.It was drizzling and about 60 degrees one Saturday morning in the fall of 2018 when Omar and his wife set out to visit a yard sale they had seen advertised in West Knoxville.
Near the intersection of Bluegrass Road and Maplegreen Lane, Omar said, a truck pulling a trailer turned in front of his car as he was beginning a left turn. The light rain had slicked the road, and the vehicles collided. Omar’s car ended up hitting a fence and a tree. The airbags deployed and knocked his wife unconscious.
An ambulance arrived quickly, and as Omar was helping his wife into it, he saw a Knox County sheriff’s deputy pull up. He got out of the ambulance, which drove away, and went to file a crash report with the officer — as best he could, given his limited English. Omar is a native of Mexico who has lived in Knoxville since 2006.
He knew the officer would ask for his driver’s license, and Omar replied honestly that he did not have one. As an undocumented immigrant in Tennessee, he is not eligible for a license. He had dealt with this situation once before, a few years earlier, when he was pulled over for an expired registration. That time, he was charged with driving without a license or insurance and spent two days in jail before being released. Still worried about his wife, he expected something similar might happen this time.
But things had changed since Omar’s previous citation. Under former Sheriff Jimmy “J.J.” Jones, the Knox County Sheriff’s Office had entered into a 287(g) agreement with U.S. Immigration and Customs Enforcement. The program empowers local law enforcement agencies to initiate immigration proceedings, up to and including deportation.
Omar didn’t know it yet that morning, but he was about to be swallowed by the American immigration detention system, which would separate him from his wife and daughters, forcibly haul him across state lines, and finally spit him out more than a month later and more than 600 miles from the city he has lived in for 15 years. Along the way, it would take his family’s entire savings.
“The process I went through, it’s awful, emotionally and physically,” Omar said, speaking in Spanish as translated by Knox News reporter Aaron Torres, who sat in on the interview in February. "It just wears you out. That month, I’m serious, it was the worst month I’d had in the United States in the 15 years I’ve lived here. It’s an experience that I wouldn’t wish for anyone to go through.”
Omar’s citation for driving without a license was dismissed two months later. But he was flagged at the Knox County jail for the 287(g) program, either by jail staff or an ICE agent who was posted at the jail for several months in 2018-19. He still faces a deportation hearing and the prospect of spending thousands more dollars in legal fees even under the best-case scenario.
There was something else Omar didn’t know. Although he is just one of hundreds of Knox County residents who have been swept up by the 287(g) program, most of them arrested on minor offenses, the agreement between the sheriff’s department and ICE might be illegal.
No Commission Oversight
The 287(g) program was established by Congress in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. It allows the delegation of some federal immigration authority to local police agencies.
It has never been popular with law enforcement agencies, partly because it comes with no resources or funding. Under the program, sheriff’s deputies receive federal training in determining a detainee’s immigration status. They also have the power to initiate deportation proceedings.
Knox County is one of just 72 local agencies in the country with what it calls a “Jail Enforcement Model” agreement, according to ICE. Seventy-six agencies have less intensive “Warrant Services Officer” agreements, in which local agencies can serve ICE warrants on people already in custody but do not initiate deportation themselves.
There are more than 17,000 local law enforcement agencies of various sizes in the United States, which means that less than 1 percent of them participate in 287(g). In Tennessee, there are only two, Knox County and Greene County.
Advocates for immigrant rights have long opposed the program, saying it sows distrust of law enforcement in the local immigrant community and leads to people being arrested on minor charges and then deported, disrupting whole families.
The Migration Policy Institute estimates there are 124,000 people living illegally in Tennessee. In 2007, the Tennessee Legislature amended the state’s employment laws with various measures designed to disrupt illegal immigration. One clause, still in state code (Tenn. Code Ann. § 50-1-101), allows local police and sheriff’s departments to enter into federal immigration enforcement agreements “upon approval by the governing legislative body.”
One of Tennessee’s early adopters of the program was Nashville's Davidson County Sheriff’s Office, which signed on in 2007 with approval from the Metro Nashville Council. The Council also approved a renewal of the agreement in 2009.
Davidson County quit the program in 2012 — the same year Jones initially tried to enlist Knox County. But ICE, under budget pressure, rejected Jones' application because adding more people into the system would increase costs. At one point, the agency released hundreds of people living here illegally in order to save money.
Angered by the cancellation, Jones posted a message on the Sheriff’s Office website that drew national attention: “I will continue to enforce these federal immigration violations with or without the help of U.S Immigration and Customs Enforcement. If need be, I will stack these violators like cordwood in the Knox County Jail until the appropriate federal agency responds.”
After the election of President Donald Trump, ICE again urged agencies to team up with federal authorities, and Jones signed up Knox County. The program began here in 2017.
But despite the 2007 state law, Jones did not seek approval of the agreement from Knox County Commission. Jones said no one ever suggested it needed to go to the Commission. He said former county Law Director Bud Armstrong assured him it was OK.
Separately, after a new state law was passed in 2018, the Sheriff’s Office was required to provide notice to the governor and Legislature upon entering into any federal immigration agreements. They failed to do so following either of the renewals of the agreement signed by Sheriff Tom Spangler in 2019 and 2020.
That 2018 law also authorized local law enforcement agencies to enter directly into ICE agreements, but it did not mention or otherwise reference the 2007 law, which remains on the books. Regardless, KCSO’s original 287(g) agreement was signed a year earlier, before that law was in effect.
Randy Nichols, the former Knox County district attorney who is now a special counsel for the Sheriff’s Office, said the original agreement did not need Commission approval because the county’s agreement does not actually amount to immigration enforcement, even though the word is part of its name: Jail Enforcement Model. ICE’s own website says 287(g) agreements “permit designated officers to perform limited immigration law enforcement functions.”
“What we agreed to do, we do not believe that to be immigration enforcement, because we do not go out into the community at all,” Nichols said. “Only if they’re brought to a jail do our people get involved.”
In essence, Nichols is saying that because deputies aren't engaging in raids to root out people living here illegally, they're not enforcing immigration laws — people are only put into 287(g) proceedings after they have been arrested on some other charge.
Current county Law Director David Buuck, who was chief deputy of the Law Department at the time KCSO entered into the original agreement, said he agreed with Nichols’ interpretation.
Knox County is not alone in not seeking legislative approval. Greene County Sheriff Wesley Holt said his county commission did not approve the county’s 287(g) agreement. Holt said he didn’t need commission approval because it is a “law enforcement matter.”
Neither Knox County nor Greene County officials seemed familiar with the 2007 law when asked about it. Advocates for immigrants acknowledge that county commissioners may well have approved the program if it had been brought to them, but they say at least it would have forced a full public hearing and debate.
Andrew Free is an immigration attorney in Nashville. Reviewing the state law, he said Knox County appeared to have not followed it — an irony, he said, given the rule-bound nature of immigration enforcement.
“Why is it that when they violate the text of the law and admit they violated the text of the law, the assumption is no consequences will flow?” Free said. “Whereas with Mr. Omar, he violated the text of a federal civil immigration statute and he spent a month of his life in a cage.”
A Fight for Records
It was a University of Tennessee professor and her attorney engaged in a public records lawsuit with the sheriff’s office who realized Knox County appeared to have not followed the state law. Meghan Conley, a sociologist and immigrant rights’ advocate, was researching the county’s 287(g) program and encountered resistance in collecting information. She filed a lawsuit that the sheriff’s office ultimately lost, forcing the department to hand over documents.
Conley said the documents were peculiar because one contract had Sheriff Jones’ signature and the next version of the same contract had county Mayor Glenn Jacobs’ signature instead.
“That really piqued my curiosity. I didn’t think anything nefarious was going on, I was just trying to understand why would these same contracts be signed by different entities?” she asked.
“What grants them the right to enter into these contracts?”
Jacobs, through a spokesman, declined to comment.
Meanwhile, in further research, Conley's attorney Andrew Fels uncovered the 2007 law.
‘It’s a Business’
Omar came to Knoxville from Mexico at the urging of his brother, who was living here. He came by foot, passing through Sonora, Mexico, into Arizona. He said he was looking for work.
He has worked in local restaurant kitchens almost constantly since he arrived, often holding multiple jobs at the same time. Apart from the traffic violations, he has had no legal run-ins in the United States.
He likes it here, for the most part. He said he has encountered occasional racism but mostly felt welcomed. He met his wife here and they have been together about eight years. She already had two young daughters, and Omar has helped raise them. The girls are students in Knox County schools.
At the jail, after he was booked, Omar was taken into a room where he was questioned by an officer displaying ICE identification, as sheriff’s employees trained in the 287(g) program are required to do.
Omar said the ICE officer told him he would be deported. But two days later, when he was released by the court after being arraigned on the driving charge, he thought he was about to go home. Instead, after being returned to the jail to collect his things, he was taken to the ICE officer. His hands and feet were shackled and he was put in a van with other detainees. Nobody told them where they were going. After a long ride, Omar was told they were in Alabama.
The ICE website lists only one detention center in Alabama: the Etowah County Jail, in Gadsden. It has long been a target of criticism from immigrant advocates, who say detainees are denied outdoor recreation and offered insufficient food. The advocacy group Detention Watch Network recently listed Etowah as one of the 10 worst ICE centers in the U.S., saying, “Etowah County Detention Center is unsafe and needs to be shut down now.”
There's another facility, used largely for transit, according to Knox News reporting, in DeKalb County, some 50 miles from Etowah County. ICE refused to provide documentation showing which facility Omar was taken to, and he had no way of knowing specifically where he was.
Omar said he was kept in a large open room with other detainees. None of the guards or officers told the detainees anything about how long they would be there or what would happen next. Most of his fellow detainees were also Latino, although there were a small number of Asians, Romanians and people from the Middle East, he said.
It was here that Omar said he started to see the immigration system in a particular light. He could tell from the staff uniforms and the thrown-together nature of the center that it was run not by ICE but by a third party that was being paid for the work. To have enough to eat, Omar had to spend money from his family at the commissary.
“It’s a business,” he said simply, a phrase he would repeat several times during the interview.
While there, he worked in the center’s kitchen. He said he was paid between 50 cents and a dollar an hour.
Just four months before Omar’s stay in Alabama, the former sheriff of Etowah County, Todd Entrekin, had lost a reelection bid. He blamed a Birmingham News investigation that showed he had personally pocketed more than $750,000 in federal funding intended to pay for food for the detainees — and had also just built himself a $740,000 beach house.
This was deemed legal under an Alabama statute that allowed sheriffs to keep unspent funds, but it was still enough to sink Entrekin’s campaign. In defending his appropriation of the money that was supposed to feed his detainees, Entrekin used language strikingly similar to Omar’s — the food operation at the jail, he said, was his “private business.”
A Jail Bed Contract
Jones could not seek reelection in 2018 after serving two terms. He was succeeded by Spangler, a longtime former officer who defeated Jones’ hand-picked candidate, Lee Tramel. That political distance between the two gave hope to some local immigrant rights advocates that Spangler would reconsider the 287(g) program, although he had praised it during his campaign.
Spangler has stuck by 287(g), going so far as to promise that he will continue to renew it any chance he gets. (That is a bit of a rhetorical flourish, given that the renewal signed last year is open-ended.)
Far from paring down its ICE engagement, in 2018 the Sheriff’s Office signed an intergovernmental service agreement, often called a bed contract, with ICE which reimburses the county for ICE detainees. The agreement allows the county to accept ICE holds from around the region, effectively making the jail a deportation hub with financial ties.
From April 2019 to April 2020, the sheriff’s office was reimbursed $84,788 for ICE holds, according to sheriff's office documents. Prior to this agreement, the county was not paid to hold an ICE detainee.
The contract was increased from $67 to $83 a day per inmate in October 2019.
Law enforcement officials have said the agreement expedites the deportation process for undocumented immigrants and does not fully cover the cost of housing the detainees.
Despite Spangler’s support for it, the 287(g) program may be curtailed anyway. During President Joe Biden’s campaign last year, he promised to end it. ICE has already shifted priorities under the new administration, telling its 287(g) partners to largely stand down on the program except for violent offenders or suspected terrorists. Nichols said the sheriff’s office would only process immigration cases that meet ICE’s new guidelines.
Research compiled by Conley, the UT professor, shows about 85 percent of the 441 people held at the jail in immigration enforcement actions from September 2017 to May 2020 would not qualify under the new guidelines because they do not face felony charges.
Further, according to her research, 81 percent of arrestees detained for ICE had nonviolent charges. The most common charges for those immigrants were drunken driving (34 percent), a driver's license infraction (20.8 percent), public intoxication (10.6 percent) and misdemeanor assault (9.5 percent).
‘They Cried All the Time’
Omar was in Alabama for a week. Then, again without explanation, he was taken with a group of detainees and loaded into a bus. They were shackled hand-and-foot and chained to the bus floor in a way that forced them to hunch over for the entire ride. Omar choked up recounting the physical pain of that journey. “It’s awful,” he said. “It’s like 11 to 14 hours.”
He was taken to a large ICE detention center in Louisiana with thousands of detainees, most of them Latino. Omar said that after many conversations, one thing struck him: Everyone he talked to had initially been arrested on more serious charges than him.
“Out of everyone who was with me (in my block) which was around 50 or 60, I was the only one who was there because I didn’t have a driver’s license,” he said. “Everyone else was there because (of) DUIs, drugs, domestic assault, not paying child support.”
A 2012 study by the American Civil Liberties Union’s Tennessee office of the 287(g) program’s impact in Nashville found that it “corresponds with foreign-born people being arrested at an increasing rate for the single charge of ‘No Driver’s License.’”
While Omar was in Louisiana, his wife was able to hire an immigration lawyer. The separation was hard on her and their daughters. She does not know how to drive, and the two jobs Omar was working were bringing in most of the family’s income.
“He’s the one who takes me to work, and the girls, he takes them to school,” his wife said. “Everything got really complicated while he was in jail.”
As for their daughters, she said, “They cried all the time and they would ask me if he was going to get out and I would say, ‘I don’t know, but I’m trying to get him out.’”
When Omar was eventually brought to a hearing, he was granted release on a bond of $5,000. The attorney fees came to $1,500. (Because deportation proceedings are civil rather than criminal, undocumented immigrants do not have access to representation by a public defender.) The money ate up Omar and his wife’s entire $3,000 savings, and they had to ask family and friends to help pitch in the rest.
This reinforced Omar’s sense that the system was more interested in what little money he had than his presence in the country. He said immigration officials know that detainees and their families will do whatever it takes to get out of detention and stay together.
“They know Hispanics pay to be here, and that they’ll pay (a lot) of money so you can stay with your family,” Omar said, blinking back tears. “My family is here. They know that money doesn’t matter to us. They’ll fine you $3,000, $5,000, $10,000, but because of your family, they know Latinos will do whatever it takes.”
The tab did not end at the detention center door. After Omar was released, he had to pay another $300 for a taxi ride to the nearest bus station, and then buy a bus ticket home to Knoxville from Louisiana. He arrived back just before Thanksgiving.
Is There Recourse?
Four immigration attorneys interviewed for this story balked at the sheriff’s office’s assertions that the 287(g) program did not require County Commission approval.
Mary-Kathyrn Harcombe is the legal director of the Tennessee Immigrant and Refugee Rights Coalition. She said the county’s argument is silly, because investigating and identifying individuals is part of enforcing immigration law.
William Gill, an associate professor of law at Lincoln Memorial University’s Duncan School of Law, agreed.
“The first sentence of the 287(g) agreement states that ICE is delegating to the Knox County Sheriff’s Office ‘the authority to perform certain immigration enforcement functions as specified’ in the agreement,” Gill wrote in an email to Knox News, clarifying that he was speaking for himself and not on behalf of LMU. “The next sentence says that the purpose of the agreement is ‘identifying and processing’ noncitizens detained in Knox County’s ‘jail/correctional facilities’ who are subject to removal (that is, deportation).”
Free, the Nashville immigration lawyer, said “If we're going to require strict adherence to what legislators say then we should require strict adherence to what legislatures say. If there is one set of laws and expectations for the governed and another for the governors we no longer live in a nation of laws, we live in a nation where the people who make the laws get to decide whether they’re going to follow them.”
But if the county has been operating a federal immigration enforcement program without proper authorization under state law, what does that mean?
Immigration attorneys are not sure what action, if any, could be brought against the county, with opinions ranging from very little to Free saying the whole program could be brought into question and possibly voided.
Free said it’s possible people deported under the 287(g) program could file for a visa by saying they were victims of false imprisonment by the county, though that option — named a U visa — is typically used for, among other things, noncitizen victims of domestic violence, sexual assault and trafficking.
Gill said people caught in the 287(g) program or those who have previously been deported could try to challenge the validity of the agreement since it likely wasn’t entered into legally. Free went further and said the county could see a class-action lawsuit challenging the program’s merits.
Not Over Yet
Omar’s entanglement with the immigration system is not over. He said he has a deportation hearing scheduled in Memphis in 2023, which will require him to hire another attorney.
Lena Graber, a senior staff attorney with the Immigrant Legal Defense Center in San Francisco, said the long delay between bond release and scheduled hearing date is not unusual, but it is precarious.
“The court date is presumably for removal proceedings,” she said, although she emphasized she’s not familiar with Omar’s specific case. “If he doesn’t show up, he will most likely be ordered deported in absentia and then if he is ever picked up by ICE again he could be deported in a matter of days or even hours.”
In the meantime, Omar is again working in a local restaurant, just as he was before the sheriff’s office decided to slate him for deportation in the name of public safety. He and his wife have had a child of their own, a baby boy — who, unlike his parents or sisters, is an American citizen by birth. But that by itself will not protect Omar from being removed from the country.
Conley, the UT professor, said that even if the Biden administration completely does away with the 287(g) program, cases like Omar’s initiated by local law enforcement agencies will continue to work their way through the system.
Omar said he did not have great hopes for changes in the system. Asked if there was anything he wanted people to know about his experience, he was direct and concise.
“It’s awful,” he said. “I wouldn’t wish that on anyone.”
CORRECTION: This story has been corrected to clarify that it was Conley's attorney who uncovered the 2007 law.