LAS VEGAS (KTNV) — The federal program that authorizes corrections officers in Clark County to hold undocumented people for transfer to Immigration and Customs Enforcement agents is illegal, the American Civil Liberties Union of Nevada contends in a lawsuit filed on Monday.
The civil rights group is suing on behalf of Sergio Morais-Hechavarria, who was arrested in August and pled guilty last month to attempted possession of a stolen vehicle.
Watch: ACLU states that federal program that allows officers in Clark County to hold undocumented people for transfer is illegal
A court ordered him to an inpatient facility as part of his sentencing, but according to ACLU attorney Sadmira Ramic, an ICE immigration hold prevented him from going to the facility.
But because he hasn't completed his required sentence, he can't be released from jail, either, she said.
"What [detention center] personnel said was, 'Well, he has an ICE hold, so we can't release him to a treatment facility.' But then at the same time, they're saying that because he's ordered to a treatment facility, they can't release him to ICE because then they consider the case still active. So he is sitting there indefinitely, and without this court's ruling on this, he can sit there for quite some time without any projected release date," Ramic said.
The conundrum stems from the 287(g) program, named for a section of the Immigration and Nationality Act. Among other things, it allows corrections officers to be deputized to carry out some federal immigration functions, including identifying and holding undocumented jail prisoners to be handed over to ICE.
The holds are only supposed to last for 48 hours after a person has served their sentence, but that doesn't apply to Morais-Hechavarria because he hasn't completed his punishment.
Athar Haseebullah, executive director of the ACLU of Nevada, says the 287(g) program is illegal on at least three grounds: First, it was not authorized by the Legislature, which means Sheriff Kevin McMahill exceeded his authority in signing the agreement, Haseebullah said.
And two, the program doesn't comply with state law, which says local sheriffs may house federal prisoners, but only if the federal government pays the cost. Under 287(g), Metro Police is bearing the expense.
Third, the lawsuit contends, police officers are generally only allowed to make arrests for violations of criminal law, and ICE holds are considered civil violations under the law.
The department's agreement "...broke from historical precedent when they signed it, and it was signed from our vantage point largely under coercion, or the threats of coercion, after Las Vegas was unnecessarily and improperly put on a sanctuary city list, which should never have happened in the first place."
In August, the Justice Department published a list of sanctuary jurisdictions that included Nevada, but failed despite repeated requests to say why.
WATCH | Nevada fights "sanctuary state" label as Justice Department offers no explanation
After Gov. Joe Lombardo objected — and shared a lengthy timeline of actions his administration has taken to cooperate with federal immigration authorities — the Justice Department removed Nevada from the sanctuary list.
One of the actions on the governor's timeline? Joining the 287(g) program in Clark County. (Sheriffs in Lyon, Douglas and Mineral counties have also signed 287(g) agreements.)
"My opinion is that this was done out of forced, out of what they felt was a need because of the administration's perpetual threats against municipalities, against local governments and state governments," Haseebullah said.
This is not the first time Metro Police has had a 287(g) program. Then-Sheriff Joe Lombardo had a similar agreement with ICE, but suspended it in 2019 after a California court ruling called the program's legality into question.
The public information office at Metro responded to an email from Channel 13 asking about the lawsuit by saying the department does not comment on pending litigation.
Steve Grammas, president of the Las Vegas Police Protective Association, the union that represents police and corrections officers, said the program is limited to the jails. McMahill has made it clear that officers will not be enforcing immigration law on the streets, Grammas said.
He said police officers don't know — and don't care — about a person's immigration status when they are making arrests or conducting investigations. That information is only accessed later, after a person is booked into the Clark County Detention Center.
Grammas has announced he will be a candidate for Las Vegas City Council Ward 6 in next year's elections, the seat currently held by incumbent Nancy Brune.