Legal battle over Las Vegas police partnership with ICE heads to court

The Nevada ACLU and dozens of its local allies rallied outside downtown’s Regional Justice Center Wednesday ahead of a hearing challenging the legality of an agreement Las Vegas police entered into with federal immigration enforcement officials.

The 287(g) agreement, which Clark County Sheriff Kevin McMahill signed in May, enables the Metro Police to execute immigration warrants on people held at the Clark County Detention Center.

Officers can then hold them for an additional 48 hours past their release date for United States Immigration and Customs Enforcement (ICE) to take them under the agency’s custody. 

“This is our day. It’s our day to be able to challenge these policies,” Nevada ACLU Executive Director Athar Haseebullah said before the group packed the gallery in front of a district court judge. “It’s our day to fight back.”

Assemblymember Cecilia González, D-Las Vegas, said before the hearing that she’s seen firsthand the fear Nevada’s immigrant community is currently living under. Especially with policies like 287(g), “the simple sound of a knock at the door can make hearts stop,” González said.

“To every immigrant Nevadan, you matter. Your family matters, and your right to live without fear matters,” she said. “To the leadership continuing to push 287(g) agreements like Gov. (Joe) Lombardo, you cannot claim to support public safety while upholding policies that actively harm and tear our communities apart.”

People are leaving for work not knowing whether they’ll come home and avoiding grocery stores as much as physically possible, González said.

ICE recently reported a 30% jump in the number of people the agency is detaining in Nevada over eight weeks, bringing the total to 600. There’s been a similar rise in ICE’s detainee population across the West and the rest of the country. 

The majority of those detained in the state are at the Nevada Southern Detention Center in Pahrump, which González previously visited. 

“People know what was happening to them. They didn’t know their rights. They weren’t getting clear information, and communication was difficult,” she said. “This is what a broken system looks like, and this is what 287(g) feeds directly into.”

Shortly after the decision to rejoin the program, which Metro had left under then-Sheriff Lombardo in 2019 due to a California court decision, McMahill told KSNV, Channel-3 that he signed the agreement because of “too many people with very heinous crimes getting out of our jail.”

But the Nevada Immigrant Coalition’s Noé Orosco argued that the policy is not conducive to public safety. That requires people feeling comfortable enough to call the police when something happens, but fears over deportation will make people stay silent, Orosco said.

Relatives of his recently were victims of a crime, Orosco said, and confronted that “existential crisis.”

“The gap between what the law promises and what communities experience is not accidental,” Orosco said. “It reflects the priorities that value order over justice, control over safety and silence over empowerment.”

“Some say that this system is broken, and in some ways, it is,” he continued. “But it is not broken from the perspective of the government that benefits from the very chaos and fear it creates.”

After the hearing, Haseebullah told the Sun that much of the day was spent on questions regarding legal standing, ripeness — or readiness — and whether the case is moot. The ACLU will address that last piece in a briefing due in three weeks.

And no matter who wins in court, Haseebullah believes it will be appealed and eventually reach the Supreme Court of Nevada. Dealing with “an unsettled area of law,” he thinks that the Supreme Court should weigh in on the issue.

Some of the ACLU’s arguments against the agreement rely on Dillon’s Rule, which limits the power of government entities to what has been granted to them, what is “necessarily or fairly implied” from those powers and what is required for the entity to function.

The Nevada Legislature has not authorized county sheriffs to enter 287(g) agreements, according to the ACLU. And if the body meant to, “it would have expressly done so,” the organization argued in court filings.

The Nevada ACLU also stated that only one law on the state’s books allows sheriffs to execute a contract with the federal government. That law has two requirements, and the ACLU alleges neither was met with the 287(g) agreement that the Metro signed.

First, the people being detained must be prisoners, which the ACLU argues doesn’t apply to civil immigration violations. And second, the federal government must be on the hook for “all actual and reasonably necessary costs,” which the ACLU says isn’t included in the 287(g) agreement.

“It’s important not to get too high or too low and let the case play out as it will, but I’m comfortable with how the court hearing went,” Hasebullah said.

Haseebullah also emphasized before the hearing that the ACLU is not representing themselves in this case, but Sergio Morais-Hechavarria, whom the organization argued in its October filing was being held at the Clark County Detention Center because of the 287(g) agreement.

That was in spite of a Nevada District Court judge ruling that Morais-Hechavarria should be moved to an inpatient treatment facility “to carry out the terms of his sentence in his criminal case,” the ACLU wrote. 

In September, Morais-Hechavarria pled guilty to attempting to steal a vehicle, according to court documents.

Metro’s lawyers noted that there was a conflict between an ICE warrant for Morais-Hechavarria and the court ruling, but that “he remained in criminal custody” due to the “inpatient-transport condition.”

Soon after the ACLU filed its case, Morais-Hechavarria was handed off to ICE. However, no officers “served or executed any ICE administrative warrant under 287(g),” according to Metro’s lawyers.

For that reason, as well as arguments that federal law enables the agency to enter into a 287(g) agreement and that the ACLU’s petition fails to meet certain thresholds, what the civil liberties group is asking of the court should be denied, Metro argued.

Along with deciding that Metro cannot enter into a 287(g) agreement, the ACLU is looking for the court to declare that the police department does not have the authority under state law to detain people over immigration detainers or warrants.

The recently signed 287(g) agreement would also be terminated if the ACLU gets its way.

Regardless of the outcome, Morais-Hechavarria’s fate was at least temporarily sealed when Metro made the handoff to federal immigration enforcement. The Cuban national was dropped off in Mexico after the exchange, likely “on a random pathway” in the country, Haseebullah told the Sun after the hearing.

“That demonstrates a really underlying nefarious intent to avoid accountability and avoid addressing these issues within our judicial system,” he said. “If we empower the executive branch to the degree that they suggest we do, we’d have very little democracy left.”