It seemed like a simple idea: provide Nevada immigrants with a modicum of security in an uncertain time by preventing law enforcement from engaging in certain federal immigration activities that they've said they have no interest in doing.
At least that was Democratic Sen. Yvanna Cancela’s goal when she introduced SB223 in February that would have barred state and local police from participating in federal immigration activities without a warrant. But after more than a month of behind-the-scenes conversations between Cancela, law enforcement officers and immigration advocates and a proposed amendment to the bill that would’ve more narrowly impinged on law enforcement, a hearing on the legislation last week was canceled and the bill’s sponsors have stated that they see no path forward for the measure in the wake of staunch police opposition to the measure.
Conversations about immigration have again come to the fore since President Donald Trump took office in January, and his campaign promises have stirred fear in the hearts of immigrants, legal and not, since he first made them: Will he really build a wall at the U.S.-Mexico border? Does he really want to deport 11 million undocumented immigrants? Is it safe to apply for a green card?
The administration took its first steps toward making those promises a reality in a January executive order to withhold federal funding from so-called sanctuary cities, local jurisdictions that limit their cooperation with federal immigration authorities. A second executive order expanded immigration officials’ deportation priorities from just those convicted of crimes to any individuals in violation of immigration law, a policy further spelled out in a Department of Homeland Security fact sheet.
Trump has stated his top priority is to target criminals and those who otherwise pose a threat to public safety. But that has done little to assuage the fears of immigrants across the country, who are reporting fewer crimes, spending less money at local businesses and are generally scared about what the future holds under the new administration.
And this week, Attorney General Jeff Sessions said that state and local governments applying for certain law enforcement grants would have to demonstrate they are complying with a law that bars officials from withholding information related to a person’s immigration status.
In Nevada, as across the country, there’s a significant concern that actions taken and statements made by the current administration are having a chilling impact on the immigrant community. In Las Vegas, local law enforcement officers, attorneys and elected officials have participated in community outreach efforts, including a so-called “Know Your Rights” workshop, over the past couple of months to connect members of the immigrant community with resources, educate them on what they can and cannot legally be asked and explain local law enforcement policies.
In line with those efforts, Cancela and other Democratic lawmakers in Carson City sponsored legislation to narrow the circumstances in which local law enforcement can cooperate with federal immigration authorities — an extra protection they hoped would help soothe some of the fears within the immigrant community.
But that legislation quickly became the subject of a fraught debate, with the state’s biggest law enforcement agencies emphasizing that there is essentially no bill they can support that could be viewed as a “sanctuary” policy that would jeopardize the federal dollars they receive or inhibit the ability of agencies to make judgement calls — even if it codified into statute policies their departments already have in place. It caused some friction within the Democratic caucus — not to mention the staunch opposition it received from Republican legislative leadership.
It’s a delicate balancing act between the federal government’s priorities, the state’s desire to limit federal overreach and local law enforcement’s concern about restrictive policies being enacted at either the federal or state level — and, with no path forward for the legislation and no other proposals on the table in Nevada, an issue that appears won’t be sorted out any time soon. But how did we get here? What’s happened so far this session? And what could happen in the future?
Local immigration enforcement in the last decade
It’s been nearly a decade since the Las Vegas Metropolitan Police Department decided it would participate in certain immigration enforcement activities in its jails.
The department entered into an agreement with Immigration and Customs Enforcement (ICE) in October 2008 to implement a jail-based program to identify criminals in the United States illegally. The partnership between the two agencies was created under the framework of Section 287(g) of the Immigration and Nationality Act, which allows the U.S. Department of Homeland Security to enter into agreements with state and local law enforcement agencies to permit certain officers to perform specific immigration enforcement activities.
Other jurisdictions across the country entered into similar so-called 287(g) agreements about the same time, each one distinct and based on the terms reached between ICE and the individual departments. Notably, former Maricopa County Sheriff Joe Arpaio was at the same time lauded and reviled for his county’s street-level 287(g) agreement with ICE, which allowed officers to check immigration status during their street operations, an authority later revoked by ICE.
Metro’s is the only 287(g) agreement in the state currently, though the Nye County Sheriff’s Office filed paperwork to enter into a 287(g) agreement with ICE 18 months ago. The department has had some meetings with ICE, but nothing has materialized to this point, said Nye County spokesman Arnold Knightly.
But Metro has made it clear that it has no desire to participate in street-level immigration enforcement. The department’s 287(g) agreement with ICE that continues today is purely jail based, with four full-time Metro officers dedicated to the program.
“You've got to be arrested for a crime and booked into the Clark County Detention Center before you become subject to the 287(g) program,” said Metro lobbyist Chuck Callaway.
But what does that look like in practice?
When someone is booked into the Clark County Detention Center, the individual's’ immigration status will be verified through a computer system that will let an officer know whether he or she is a priority for ICE. If so, that officer will contact ICE, which must submit a written statement of probable cause if the agency wants the person.
Once the person has served out his or her time on the local charge, such as a DUI, a 287(g) officer will call ICE to inform the agency that the individual is about to be released. If ICE says it wants the person and has submitted a written statement of probable cause, Metro will hold the individual for 48 hours for ICE; if no one comes to pick the person up when 48 hours is up, the person walks out the door, Callaway said.
That department policy evolved out of the one put in place in 2014 by then-Sheriff Doug Gillespie, who announced Metro would no longer detain anyone solely on a federal immigration detainer, citing constitutional concerns in the wake of a federal court ruling that an Oregon county had violated a woman’s Fourth Amendment rights by holding her without probable cause. Metro decided that it would no longer honor ICE requests without a judicial determination of probable cause for the detainer or a warrant from a judicial officer.
“This change has nothing to do with me taking a stand on the immigration issue,” Gillespie said in a statement at the time. “It has more to do with a situation we’ve found ourselves in and this is the best thing to do until the feds figure it out.”
Prior to that, Metro would hold detainees for ICE until the agency came to pick them up. If it took a week, they held them a week, Callaway said.
After the 2014 policy change, Metro made every effort to communicate with ICE to let them know when they were about to release someone who was a priority; in some cases ICE came before the person was released, but in most cases it didn’t, Callaway said. Metro tried to reach a better agreement with ICE at the time — giving the agency three hours notice, renting ICE a bed in the jail in which the person would be held — but never came up with a solution.
To get a sense of what that looked like, the Clark County Detention Center sees about 50,000 individuals pass through annually. In 2015, Metro sent 1,599 notifications to ICE through the 287(g) program and 104 of those individuals were picked up. In 2016, the department sent 1,482 notifications and 173 were transferred to ICE custody.
But in January, the department’s policy changed again: Metro met with ICE, which told the department that it would provide the locals with a special form with written probable cause. In response, Metro agreed to shift its policy to hold individuals for 48 hours beyond when they are eligible for release based on that document, which the department’s counsel believes satisfies the constitutionality concerns, Callaway said.
“Now, for whatever reason — I don’t know if it’s a result of the new administration or a change in leadership in ICE — but now they came to the table in January saying we’ll provide you written probable cause and we’ve said, ‘Well okay, we’ll hold for 48 hours,” Callaway said.
So if Metro is cooperating with ICE, why have they been listed as uncooperative in recent “Declined Detainer Outcome” reports by the agency?
Well, for one, Metro says ICE’s numbers are inaccurate, as have other jurisdictions across the country.
The report issued for the week of January 28 to February 3 states that there were 51 issued detainers from ICE that Metro declined. But Callaway said he spoke with the officers in the jail, who told him the department did turn those 51 individuals over to ICE and that the error was a clerical one.
“Our argument is, ‘No, they were turned over,’” Callaway said. “‘We have zero people you requested a hold on that we didn’t transfer over in that period of time in January that’s in that report.’ The way I understand it is if they are flagged in the system as a priority for ICE, they are giving us written probable cause. If we don’t get written probable cause, we’re releasing them.”
Plus, the report characterizes Clark County as an uncooperative jurisdiction based on the 2014 Gillespie statement — not of its current departmental policy to honor ICE detainers for 48 hours if given written probable cause. It characterizes more than 100 other jurisdictions that require warrants or other criteria to honor ICE detainers as similarly non-cooperative.
Metro’s argues that it shouldn’t be considered non-cooperative when it is one of only 37 law enforcement agencies across the country that actually maintains a 287(g) agreement with ICE, out of about 18,000 total U.S. police agencies.
“First of all, we've used the 287(g) program for almost a decade, since 2008, so we have officers assigned to that program full time,” Callaway said. “Last year we made approximately 1,500 notifications to ICE, so I would hardly say we're not cooperative.”
Washoe County, which unlike Metro does not have a 287(g) agreement with ICE, is the only other law enforcement agency in Nevada listed in the report as non-cooperative, based on a 2014 decision by the sheriff’s office to not honor ICE detainers without a warrant.
But Tom Green, chief deputy with the sheriff's office, said that immigration officers are in Washoe County’s jail every day of the week and even have a desk at the jail the county offers free of cost. The county also provides an automated daily list to the media and a number of federal agencies, including ICE, who are “more than welcome to look through” it and check it against their database, Green said.
“If you've come through the jail and you've committed a crime then you're going to be subject to their checks,” Green said.
But the department has no desire to be labeled a sanctuary community or sanctuary county, yet ended up with the label because of changes they made to comply with federal court rulings on detainers, like Las Vegas. “We ended up getting painted with that broad brush,” Green said.
Washoe is also paid $109 a day to house ICE detainees in its jail — typically about two to 20 detainees a day out of the jail’s 1,125 average daily population.
Henderson Police Department has a similar agreement with ICE to house detainees in its detention center, though the department itself has no officers trained or deputized to enforce immigration law. And, like Metro and Washoe, the department has a policy against asking for someone’s immigration status, said Henderson lobbyist David Cherry.
North Las Vegas police spokesman Aaron Patty said the department’s officers don’t bring up immigration in their contacts, though they may address it if it comes up during an investigation. Patty said that ICE has the ability to input information into a national database, so if the department runs someone through the database and a detainer comes up, they’ll call and make contact with ICE, who can then decide whether to act on the information.
“If we stop someone on a traffic violation, if there is probable cause for an arrest, we make the arrest and take them to jail,” Patty said. “But if it’s just to detain them we can’t hold them all day long. If ICE or whoever decides they want to take further action, we’re not going to break the rules.”
A legislative solution
Despite all assurances from law enforcement that they have no interest in participating in street-level immigration enforcement and have no plans to change their policies, there’s still no way to assure members of the immigrant community that those policies won’t change in the future, advocates say.
“It’s absolutely a question we get, ‘What can the police ask me? Can they ask about my immigration status? Are they allowed to do that?’” said Amy Rose, legal director of ACLU of Nevada. “We say they shouldn’t be asking, but there’s no rule that requires them to refrain from asking.”
To that end, Cancela introduced a bill, SB223, in February to put a prohibition in state law on state and local law enforcement cooperation with federal immigration officials in the absence of a warrant from either a judicial officer or an immigration judge.
The bill, as introduced, would bar state or local law enforcement agencies and campus police from using any of their resources to conduct any immigration enforcement activities, including detaining individuals, transferring them to the custody of federal immigration officials or otherwise assisting in federal immigration related activities without a warrant from either an immigration judge or a district court judge.
The legislation would also prohibit law enforcement from sharing databases with anyone for the purpose of immigration enforcement and from employing officers who perform functions of immigration enforcement officers but would have allowed them to respond to requests from federal immigration authorities about a person’s criminal history.
The genesis for the bill, Cancela said, was twofold: to provide some comfort to families who may have someone who is undocumented in their household or their immediate family but also to protect state and local resources from federal government mandates to carry out certain immigration-related activities. For instance, Metro currently spends roughly $400,000 annually on its 287(g) program in the form of salaries and benefits for the four officers who work under the program.
Cancela said that local law enforcement, specifically Metro, has done a great job understanding the state’s population and engaging with minority communities that she wanted to find a way to allow the police to continue to do what they’re doing today while also putting in protections against future federal policy changes.
“I think it's really troubling that the federal government could prescribe what our local law enforcement does,” Cancela said.
In crafting her legislation, Cancela said she looked at what was happening in California, New Mexico as well as other municipal and county efforts and tried to come up with a bill that would address Nevada’s situation specifically.
For instance, a bill working its way through California’s Legislature, SB54, would only allow agencies to cooperate with federal immigration officers only with a judicial warrant, whereas Cancela wanted her bill to allow agencies to also cooperate with warrants from immigration judges, who work for the Department of Justice and fall under the executive branch. (An amendment to the California bill in March would require state prisons and county jails to notify the FBI 60 days before releasing an undocumented immigrant with a violent felony conviction.)
“The bigger the net of folks that we can have available for these kinds of requests the better off we would be,” Cancela said.
It’s not just Nevada and California, either — it’s a discussion happening across the country.
A report by the National Conference of State Legislatures updated this week shows at least 32 states and Washington D.C. are considering legislation this year dealing with sanctuary jurisdictions and noncompliance with immigration detainers. Twenty-nine states are considering legislation to bar sanctuary policies, 18 states and D.C. are taking up legislation to support them and five states have legislation on both sides of the issue. (Nevada falls into that last category, with Republican Senate Leader Michael Roberson’s SB333 proposing to bar cities and counties from adopting policies that prohibit, limit or discourage cooperation with enforcing federal immigration laws.)
Immigration-related state legislation tends to “ebb and flow” based on current events, with bubbles in 2010, when Arizona passed a law requiring immigrants to carry their alien registration documents with them at all times and requiring police question anyone they suspect of being in the country illegally, and in the mid-2010’s around the executive orders for deferred action for undocumented immigrants who arrived as children, said Ann Morse, program director of the NCSL’s Immigrant Policy Project. Where the round of legislation introduced around 2010 tended to be more restrictive toward immigrants, legislation introduced between 2014 and 2016 tended to be aimed at helping the “particularly defensible” DACA population succeed, she said.
“Now that we have this campaign and this very strong perception that immigration is again one of the controversial issues motivating the American public, we’re back on the other side of the fence again,” Morse said.
Law enforcement pushback
All the same, Metro and other law enforcement agencies brought forward significant concerns with SB223 forward to Cancela after its introduction — namely, a concern that the legislation would be viewed as a “sanctuary” policy by the federal government and could possibly jeopardize the federal grants law enforcement receive as well as a broader philosophical concern that the state shouldn’t be restricting the ability of law enforcement to make judgment calls and shift its policies as needed to address public safety concerns.
The first concern largely centers around the idea of what it means to be a “sanctuary” city or county, generally those jurisdictions that refuse to honor detainer requests from ICE unless the orders include a warrant or other document establishing probable cause. But without an explicit “sanctuary” definition in federal law, it’s difficult for law enforcement to know how their policies shape up against the administration’s threats to take money away from such jurisdictions.
Metro’s position is that if ICE already considers them a “non-cooperative” jurisdiction based on a press release the department put out in 2014 how much more non-cooperative will they be seen by the federal government if Nevada actually passes a law barring state and local law enforcement from cooperating with federal law enforcement on immigration.
“For me in my position with this bill, basically it really doesn't matter what the language is,” Callaway said. “If you enact a law that in any way shape or form is seen as restricting law enforcement's cooperation with federal partners, then we can then be labeled as a sanctuary city and then the federal funding we receive is in jeopardy.”
Metro receives about $9 million in federal grants annually and its budget for the 2016-17 fiscal year was about $550 million, while Washoe County has $2.6 million in active grants out of a $101.5 million annual operating budget. Henderson received more than $500,000 in direct grants from the U.S. Department of Justice and more than $9 million in gross revenue from its contract to house detainees for ICE in fiscal year 2016.
Those grants include the Edward Byrne Memorial Justice Assistance Grant (JAG), the leading source of federal justice funding to state and local law enforcement jurisdictions, and the State Criminal Alien Assistance Program (SCAAP). JAG funds go toward a host of state and local law enforcement expenses such as crime prevention programs, technology initiatives and drug courts, among a host of other program areas, while SCAAP reimburses state and local governments for the costs of incarcerating undocumented immigrants.
Immigration law experts have questioned whether the federal government has the authority to strip some, if any, of those funds away. UNLV law professor Michael Kagan, director of the school’s immigration clinic, called the threat about federal funding “a bit of a tempest in the teapot.”
The administration has threatened to deny or claw back funding from jurisdictions it believes are not complying with 8 U.S.C Section 1373, which “notwithstanding any other provision of federal, state, or local law” bars federal, state or local governments from prohibiting or in any way restricting any government entity from sending or receiving information to federal immigration authorities regarding the citizenship or immigration status of an individual.
Kagan sees possible federalism concerns with Washington’s threats to state and local governments. Immigration law experts point to the anti-commandeering doctrine, laid out in two U.S. Supreme Court cases in the 1990’s, which prohibits the federal government from “imposing targeted, affirmative, coercive duties upon state legislators or executive officials.”
“There are significant federalism issues about the federal government trying to bully states and localities to do what they want,” Kagan said.
But law enforcement officials argue that the original language of the bill wouldn’t allow them to continue doing what they want. For one, it would prevent Metro from continuing its 287(g) agreement with ICE, which it wants to continue doing though the program costs the department $400,000 a year.
“The question comes up, ‘Well if those officers are doing 287(g) full time the government should be paying for their salaries and benefits,’ but here's why this is not a good idea,” Callaway said. “Because those officers are under the authority and the control of the sheriff and if we put them under the payroll of ICE, for example, now ICE can dictate how those officers operate.”
Callaway said the department wants to keep them on its payroll so that the sheriff has the ability to dedicate them as he sees fit, what their job description is and what they do.
Henderson and Washoe County also expressed concerns that the bill would prohibit their departments from maintaining agreements with ICE to house detainees in their jails. Law enforcement agencies generally expressed the concern that it could also prevent the departments from making certain required mandatory consulate notifications the Department of State has agreed to in the event that citizens of certain countries, such as China, are detained in the United States.
Law enforcement agencies also expressed a broader concern that the Legislature has no business tying the hands of law enforcement when it comes to deciding how to allocate their resources.
“When you codify in the law that the sheriff cannot use his resources this way or the sheriff cannot communicate with federal partners, this police department cannot do these things, in my opinion, you are circumventing the power and authority of the sheriff when it comes to allocating his resources and working with other law enforcement agencies,” Callaway said.
A proposed amendment
In the wake of significant law enforcement concerns, Cancela proposed a conceptual amendment to SB223 in mid-March. That amendment would have essentially scrapped the text of the original bill and replaced it with language more narrowly barring law enforcement officers in Nevada from asking about an individual’s immigration status at the point of contact, such as someone who is pulled over for a broken tail light.
Metro, Washoe County, Henderson and North Las Vegas all say their department policies are not to ask for someone’s immigration status; so Cancela said she thought codifying those policies into law would provide extra assurance to the immigrant community without changing law enforcement’s current practices.
“While I still believe in the ideas that are in the original bill, I think that there is a way to create something that is more narrowly focused that still allows people to both feel confident in law enforcement and also codifies into law what law enforcement has said they’re not doing today,” Cancela said in an interview at the time, lamenting the way the bill had been quickly branded as a “sanctuary state” bill.
“This ‘Sanctuary State’ bill is, without question, the most recklessly irresponsible piece of legislation that I have witnessed during my six plus years in the Nevada Legislature,” Roberson said in a statement after Cancela introduced her bill in February.
Cancela argued that the term “sanctuary,” originally meant to indicate a safe space for immigrants, has become “completely co-opted to alienate people from legitimate policy discussions.”
But by then, the damage had already been done and the “sanctuary” label on her bill had stuck. After meeting with Cancela about her proposed amendment, law enforcement officials still said there was no way they could support the bill, pointing to the same concerns they had with the original language of the bill.
“The bill has already got the label of being a ‘sanctuary city’ bill, so us supporting it has some issues,” said Eric Spratley, lobbyist for the Washoe County Sheriff’s Office.
Callaway echoed those concerns, saying “it doesn’t matter what the language” of the bill is, that it would still jeopardize the federal funding the departments received. Plus, neither Metro nor Washoe could rule out a scenario in which there might be a legitimate reason to need to change the department’s policy on the future, saying the world changes on a “minute-by-minute” basis.
“We've come to the point where we agree to disagree,” Callaway said. “She's come as far as she can go and we appreciate that but still we're just at that point where we can't support.”
Even as Cancela and law enforcement reached an impasse, the bill was scheduled for a hearing on March 27 at 1:30 p.m. in the Senate Judiciary Committee. Then, without warning, the bill was quietly pulled from the committee’s agenda late Friday afternoon by Senate Majority Leader Aaron Ford, though both Cancela and the committee chair, Sen. Tick Segerblom, both said they were comfortable with the amended language of the bill.
“After continuing discussions on this issue over the last few days, Senator Ford felt that there needed to be more conversations with the interested parties before the bill was ready for a hearing,” caucus spokesman Peter Koltak said in an email late that night.
On Tuesday, Cancela broke the news that the bill would not move forward in its current form, stating that a “moderate bill to protect law enforcement from doing federal immigration work” in the form of barring officers from asking for immigration status “became inundated with misinformation and politicized with fear.”
“Of course I’m disappointed. I worked hard to try and find a good compromise,” Cancela said in a statement. “Law enforcement did a tremendous job at being transparent with data and sharing ideas.”
Assemblyman Chris Brooks, who had recently introduced a bill in the Assembly (AB357) identical to SB223, also backed away from his bill Tuesday night, saying in a statement that it would be “irresponsible” to continue pushing the legislation in its current form without a “clear path to passage and agreement from all stakeholders.”
Ford echoed Cancela’s disappointment, but said in a statement that “provoking an unpredictable, anti-immigration federal administration” when there isn’t consensus in the state would be “unwise.”
Republicans legislative leaders expressed glee that neither piece of legislation would move forward, while progressive activists thanked Cancela for starting a crucial conversation through SB223 and committed to continuing that discussion statewide.
The next nine weeks
So what happens now?
For one, law enforcement agencies reiterate that they have no plans to change their current policies, which means they shouldn’t be asking for anyone’s immigration status on a traffic stop or when responding to calls for police assistance. Police have reiterated time and time again that they do not want people to be afraid to call the police for help or to stop reporting crimes.
“We're taking every opportunity we can to engage, especially the Hispanic community since that's where the bulk of the concern is coming from,” said Green, from the Washoe County Sheriff’s Office. “We're not going to check your immigration status when we pull you over. If you call the police, we're not going to put you on the radar for possible immigration deportation.”
Nevertheless, some may be wary upon learning that police were opposed to a law prohibiting them from asking for someone’s immigration status based on their own stated policy, Kagan said.
“They told everyone who would listen that Metro does not want to arrest people on immigration grounds. But then they loudly opposed making it binding,” Kagan said in an email. “It’s hard to say, we don’t want to be held to bound by what we say, but trust us anyway.”
But law enforcement agencies don’t want their position on this legislation to stop people from coming forward to report crimes and have stated that they plan to continue community outreach to make clear what their department policies are.
“I think you have to earn trust. You can’t demand it, you have to earn it. I think we’ve gone a long way in building relationships with the community and if we were to change our current practices and our current policy it would just damage those relationships,” Callaway said. “To me, that provides the assurance to people that we’re not going to tomorrow decide that we’re doing ICE’s job for them suddenly.”
For her part, Cancela said that she plans to continue working with law enforcement on its commitment to regularly host town halls and share accurate information and that she isn’t giving up.
“As elected officials, I believe we have a responsibility to be the loudest voice for those who often can't speak for themselves,” Cancela said in a statement. “I'm continuing to work with stakeholders and will do everything I can to fight for our immigrant families — whether it's in Carson City, at protests, citizenship fairs, now more than ever we must stand strong.”
Both pieces of legislation appear dead for now, but Republicans aren’t ruling out a chance that the legislation could be resurface before the end of the session.
“I will remain vigilant and will fight against any effort to resurrect this legislation before the end of the session,” Roberson said in a statement.
After all, there are still nine more weeks left.