TN Leg 2025: What to expect from the new Tennessee “centralized immigration enforcement division" (hint: civil rights violations)
The signing ceremony for the school voucher bill dominated the headlines yesterday, but Gov. Lee also signed SB 6002, the special session legislation expanding state/local deportation enforcement.
As highlighted in my overview of the special session, the Tennessee legislature took up an expansive immigration bill (a) creating a “centralized immigration enforcement division; b) expanding state and local law enforcement’s immigration enforcement under the federal 287(g) program; (c) creating a felony offense for any local official voting in favor of sanctuary city policies; and (d) requiring driver’s license and photo ID applicants to prove they are US citizens, while restricting immigrants with status (e.g., green card holders) to temporary licenses with “a visually distinctive marker.”
I didn’t even know the bill was already signed by the Governor until I was looking at the Capitol website and saw the updated status yesterday. The version that was sent to the Governor was the Senate version of the bill (SB 6002), substantially the same as what was introduced originally but with two major differences.
First, an amendment approved as part of the final bill exempts the immigration enforcement division from obligations under the Tennessee Public Records Act. The amendment’s sponsor, Sen. Bo Watson, told the Tennessee Lookout the confidentiality provision is “not new” and was added to make the immigration enforcement division “consistent” with current law in the Department of Public Safety, but the Tennessee Coalition for Open Government took a different view:
[T]he actual language of the bill is not limited to records that the department receives from law enforcement, nor is it limited to records that are already confidential in the hands of law enforcement. For example, it allows a new set of records to be withheld that are deemed by someone as “sensitive.” It is not clear who would make that determination or what factors would be used. It could be the chief of the new immigration division.
Perhaps you will not be surprised to hear that not only do sheriffs hate transparency about immigration enforcement (“Knox County blasts UT prof’s sunshine lawsuit over sheriff’s 287(g) deal with ICE”), but they will also willfully refuse to turn over records even when ordered to by a court (“Knox County Sheriff’s Office defied judge’s order in public records case, new legal filing says”):
The Knox County Sheriff's Office defied a judge’s order by sitting on documents it was ordered to make public, according to a new filing in the case by a professor who won a significant open records case related to the agency’s participation in a controversial immigration enforcement program.
[…] She filed a new motion Oct. 18 asking the judge to revisit a decision about how much the sheriff's office should have to pay to cover Conley’s legal fees.
Second, as reported by the Tennessee Lookout, initially the bill came with a $20 million fiscal note, but that was reduced to $5 million as a result of a smaller sum being appropriated for proposed grants to local sheriffs and police departments to implement and participate in the 287(g) program.
Rejected Amendments
A word about what changes were not made to the bill. There were a number of amendments filed that were by and large “tabled”, i.e. not even given an opportunity for debate and consideration. The sponsors of these amendments were given 1 minute to make their case as to why they should be considered, that’s it. Here are a few:
Requiring the federal government to bear all costs associated with duties, funding, programs, and enforcement (Rep. Gloria Johnson);
Eliminating the provisions related to proving citizenship for driver’s licenses and a separate license for immigrants (Reps. Gloria Johnson, & Justin Pearson, Sen. Charlane Oliver);
Prohibiting state and local law enforcement from immigration enforcement in schools, places of worship, and hospitals (Rep. Vincent Dixie, Sen. Heidi Campbell);
Eliminating the provisions that create a new felony offense for any official voting in favor of a sanctuary city policy (Reps. Justin Jones & Justin Pearson, Sen. London Lamar);
The 287(g) Program
Local law enforcement cooperation with ICE does not require participation in the 287(g) program. Tennessee law already requires law enforcement to cooperate with ICE, which has been the case since at least 2018. In addition to cooperating with ICE, the 287(g) program—referring to a section of the federal Immigration & Nationality Act, enacted under the Clinton administration as part of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act1—deputizes state and local law enforcement to act in ICE’s stead. As explained in the Nashville Banner’s reporting on the new legislation:
Under 287(g), a local law enforcement agency—usually a county sheriff’s office that operates a jail—can voluntarily enter a memorandum of understanding with the federal government to become deputized by ICE to execute immigration investigations and determine next steps while migrants are in custody.
The program has long been criticized for allowing local law enforcement officials who lack training in federal immigration law to carry water for federal ICE agents, while expending the localities’ limited resources and potentially encouraging racial profiling as jurisdictions look to detain potentially undocumented immigrants for minor infractions.
“Every jurisdiction in Tennessee already cooperates with ICE. Every jurisdiction in Tennessee already detains people for ICE. The only difference is that if there’s 287(g) and the jurisdiction does the investigation for ICE and messes it up, then oops, they’re on the hook,” Meghan Conley, an advocate for Allies of Knoxville’s Immigrant Neighbors, said Thursday.
[…] Even if the detention and investigation go off without a hitch, the local law enforcement agency is still covering the cost of labor and of housing the detainees if they fill in for the federal government.
“Having local law enforcement who know nothing about immigration law trying to enforce immigration law, which is largely civil, just doesn’t make any sense for any of us,” [Lisa Sherman Luna, Executive Director of the Tennessee Immigrant and Refugee Rights Coalition] said. “And that detracts from the real work of public safety, and local law enforcement also know that in order for them to ensure public safety, they have to build trust with communities.”
Currently in Tennessee, this “complicated, aggressive form of enforcement” is only utilized in Greene and Knox Counties. Davidson County participated from 2007 to 2012, abandoning the program after numerous civil rights violations.
For example, when Juana Villegas was stopped for minor traffic violation with her three children in the car, the officer who made the traffic stop suspected she was undocumented and chose to exercise his discretion under the 287(g) program to arrest her instead of issuing her a traffic citation. What happened next is pretty horrifying, as the ACLU of Tennessee recounted in its brief to the Sixth Circuit Court of Appeals:
On July 3, 2008, while nine months pregnant, Ms. Villegas was arrested for a minor traffic violation. When she went into labor two days later, DCSO [Davidson County Sheriff’s Office] officers took her to the hospital in chains – her arms handcuffed in front of her chest and her ankles shackled together. Appellee Br. at 6. Under Metro’s orders, Ms. Villegas, who had no history of violence or uncooperative behavior and who was not accused of any violent crime, remained in shackles and/or handcuffs for 36 hours – almost the entire time she was at the hospital. Id. at 13, 20. As required by Metro’s policies, DCSO officers kept Ms. Villegas in shackles throughout the majority of her labor, until approximately two hours before she delivered her son. DCSO officers reapplied the shackles the next morning, less than six hours after delivery. Id. at 8. Ms. Villegas remained chained to her bed throughout her postpartum recovery and “was not permitted to leave her room to walk the hallway in order to loosen her muscles and ensure against blood clots.” Id. Her legs were shackled together even while she used the restroom, showered, and slept. Id. Despite the risk of injury to her newborn, she remained shackled to the bed while she held and nursed him. Id. Under Metro’s orders and policies, she remained in chains despite that the maternity ward was secure, despite the constant presence of armed correctional officers posted either inside or directly outside her room; and, most importantly, despite repeated medical orders to remove the shackles.
The mistreatment and abuse did not end there, however. When Ms. Villegas was discharged without her infant, DCSO officers deliberately disregarded doctor’s orders that she use a breast pump to guard against a serious and excruciatingly painful infection because Metro’s policies barred such medically necessary treatment. Because jail officials refused to obey that clear medical order; refused to transport the pump from the hospital to the jail; failed to provide any alternative care at the jail; and thus forbade her from pumping her breast milk, Ms. Villegas developed mastitis – precisely the severe and excruciating infection that the doctors had ordered the pumping protocol to prevent. Id. at 10, 33-34.
Although the Sixth Circuit partially reversed the District Court’s ruling in Villegas’s favor and remanded the case for a new trial, Nashville/Davidson County eventually decided to settle the case for $490,000.2 Also, in a truly “unprecedented move,” federal District Court Judge William J. Haynes issued an opinion certifying a U-Visa giving her immigration status. In a 2014 follow-up article, the Nashville Scene reported:
[L]ast week, Villegas learned that she is no longer undocumented. She is now entitled to live and work in the U.S. until she applies for permanent residence and ultimately American citizenship.
In a bitter irony, she might not have received her new status if not for her 2008 ordeal.
U Nonimmigrant Status, better known as the U-Visa, is available to noncitizen victims of criminal activity who help government officials in investigating or prosecuting crime. To qualify for this form of legal relief, Villegas had to demonstrate to United States Citizenship and Immigration Services, the bureau of the Department of Homeland Security that handles immigration issues, that she suffered substantial physical or mental abuse as a victim of criminal activity that violated the laws of the United States.
The perpetrator was the Davidson County Sheriff’s Department.
As I pointed out in my earlier preview of the immigration bill, U.S. citizens have also been erroneously detained. When the Southern Poverty Law Center sued to block enforcement of the 287(g) agreement between ICE and Davidson County—on the basis that the Metro Nashville Police Department, and not the sheriff’s office, is the primary law enforcement agency under the metropolitan government charter—one of the plaintiffs was U.S. citizen Daniel Renteria-Villegas. He was initially held on a warrant that was dismissed for lack of probable cause, then jailed by the Davidson County Sheriff’s Office for another 12 days for possible deportation proceedings even though he was born in Oregon.
More recently in Knox County, which has participated in 287(g) since 2017, Maira Oviedo-Granados called the Knox County Sheriff’s Office seeking rescue from her violent, armed boyfriend; instead, deputies arrested and detained her under 287(g). As reported by the Knox County news and politics newsletter Compass:
At 2:08 a.m. on Nov. 7, 2020, Maira Oviedo-Granados called 911 from her home in the Ellistown Estates subdivision in East Knox County.
Speaking through a Spanish interpreter, the native of Honduras told the dispatcher that she was locked in a bedroom with her three children, who ranged in age from 5 to 13, hiding from her domestic partner. According to a transcript of the call, she said her partner had just beaten up a family friend and had returned home in a violent temper. She added that he was armed with two handguns.
But when Knox County Sheriff’s deputies arrived at the house not long after, things didn’t go as Oviedo-Granados expected. Rather than arrest her partner, an English-speaking American citizen, the officers—who did not speak Spanish—charged her with simple assault.
Oviedo-Granados has applied for asylum in the United States and has a temporary legal status while she awaits a determination. But less than 12 hours after she was booked into the Roger D. Wilson Detention Facility, she was put into immigration enforcement processing via the county’s 287(g) agreement with the federal government.
So, how much do you think the legislature took the tangible and intangible costs of 287(g) into consideration when debating whether to incentivize more participation in the program? Consider this exchange from
and Speaker William Lamberth:I will remind you that Lamberth is a lawyer by trade and the Rules of Professional Conduct in Tennessee (as in all states) for practicing law require “competence.” In order be competent, a lawyer should “maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice [and] engage in continuing study and education.” The Villegas case was only covered by the Tennessean, Nashville Scene, WPLN News, the Atlantic, CNN, CBS News, the New York Times, Fox News, the Daily Mail, you get the idea. Free pass to Republican legislators to wing it though. You don’t need to be aware of anything.
Criminalizing Legislative Activity
This part of the bill has received the most attention, so I won’t dwell on it, but a couple things that have been missing from media coverage are worth mentioning.
First, this type of criminal penalty “is not mere happenstance; rather it is strategized proliferation.” It’s copycat legislation. After it failed in Colorado, state lawmakers in Ohio, Maine, and Alaska all introduced similar bills but the proposals failed there too. Only Tennessee has passed it, “heeding the call” to do the most extreme! And we needed a special session to enact it at lightning speed because *checks notes*
Sanctuary cities have been banned in Tennessee since 2018;
There weren’t any sanctuary cities in Tennessee in 2018 and there aren’t any now;
Even the Republican governor at the time called the legislation “a solution in search of a problem” before letting it become law without his signature.
Second, if you want to talk about frivolous legal positions, listen to the contorted views of legislative immunity articulated by SB 6002’s proponents in response to concerns the bill is wildly unconstitutional. Rep. Torrey Harris asks Lamberth whether the bill violates the Speech or Debate Clause of the federal and state Constitution:
Harris goes on to ask about other legal precedent affirming legislative immunity from criminal prosecution. This time Lamberth defers to Law-Pedant-in-Chief Gino Bulso for the response. He says it’s “100 percent constitutional!” With Gino B it’s a guarantee:
Both Lamberth and Bulso cite the U.S. Supreme Court decision Bogan v. Scott-Harris, 523 U.S. 44 (1998). In particular, Bulso plucks out the magic words “sphere of legitimate legislative activity,” which is quoted in Bogan from an earlier case Tenney v. Brandhove, 341 U.S. 367 (1951). Enacting a sanctuary city ordinace would be llegitimate, right? But the sphere isn’t referring to things that are legitimate vs. illegitimate, it’s referring to what is legislative and what isn’t. In Tenney, the question was whether a congressional investigation exceeded the bounds of legislative power, and the court concluded:
To find that a committee’s investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive. The present case does not present such a situation.
Justice Clarence Thomas, who Bulso refers to as “one of our foremost jurists’ in the history of the country”—and who I refer to as the foremost beneficiary of Harlan Crow—or, alternatively, as “one of those people that still thinks the dishwasher is a miracle. What a device! And I have to admit that because I think that way, I like to load it. I like to look in and see how the dishes were magically cleaned.”—stated pretty clearly in Bogan that introducing, voting for, and signing an ordinance are “quintessentially legislative” activities.
Bulso also mentioned the federal Court of Appeals case Canary v. Osborn, 211 F.3d 324 (6th Cir. 2000). This is also a red herring. In Canary, there was not enough of a factual record for the court to determine whether the Board’s action was “essentially and clearly legislative.” The defendants in this case were school board members who voted not to renew an assistant principal’s contract. Although they might be covered by legislative immunity, the Sixth Circuit found that it was a question of fact for trial (not a pre-trial motion) as to whether the school board was “acting in a legislative manner” or whether their action was “simply an administrative employment decision.” This is not at all similar to a local legislative body enacting an ordinance or law pertaining to establishing a sanctuary city.
What To Expect Next
The ACLU of Tennessee has already indicated it plans to challenge the provision criminalizing voting for sanctuary city policies. I’ll flesh out the arguments over legislative immunity as the eventual litigation plays out.
As for 287(g), the Knoxville News Sentinel recently reported that Knox County jail immigration holds have doubled since the election, but 90 percent are from other counties:
One theory is Knox County’s jurisdiction expanded, meaning the county has begun accepting detainees from a wider swath of the state. Anecdotally, the county has had new detainees from as far away as Davidson and Hamilton counties, for instance.
The other, she said, is that enforcement practices could have changed following the Nov. 5 election, but that one isn’t clear-cut because Trump wasn't sworn into office Jan. 20.
Separately, deportations were high before Trump was elected. President Joe Biden's administration deported the highest number of immigrants in a single year since 2014, according to a recent report from ICE.
I’ll conclude with a friendly reminder that this did not start with the first or current Trump administration. Biden proactively helped construct the booming border industrial complex infrastructure that the Trump administration now has available:
In fact, during President Biden’s four years in office, he gave 40 contracts worth more than $2 billion to the same GEO Group (and its associated companies) whose stocks spiked with Trump’s election. Under those contracts, the company was to maintain and expand the U.S. immigrant detention system, while providing ankle bracelets for monitoring people on house arrest.
And that, in fact, offers but a glimpse of Biden’s tenure as — yes! — the biggest contractor (so far) for border and immigration enforcement in U.S. history. During his four years in office, Biden’s administration issued and administered 21,713 border enforcement contracts, worth $32.3 billion, far more than any previous president, including his predecessor Donald Trump, who had spent a mere — and that, of course, is a joke — $20.9 billion from 2017 to 2020 on the same issue.
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act is worthy of its own discussion, but you only need to Google the name to discover an overwhelming number of articles with titles such as “25 Years of IIRIRA Shows Immigration Law Gone Wrong,” “The disastrous, forgotten 1996 law that created today’s immigration problem,” and “From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis.”
Prior to the Sixth Circuit’s ruling, a federal District Court jury awarded Villegas only $200,000 in damages: “a far cry from the $1.2 million that Villegas and her attorneys originally asked for, which when broken down included $308,000 for future treatment and $924,000 for emotional, physical and psychological harm.” Jonathan Meador, “The Juana Villegas case looks bad for Metro — but will it look worse if the city appeals the damages?” Nashville Scene (Aug. 25, 2011).