NM lawmakers say counties defying immigrant detention bill vulnerable to legal action

Top lawmakers on an interim legislative committee Thursday warned county leaders who defied a newly enacted immigrant detention bill that they should be setting aside money for an eventual lawsuit.

House Bill 9, the Immigrant Safety Act, passed in the most recent legislative session, prohibits counties from contracting with the U.S. Immigration and Customs Enforcement agency.

New Mexico has three counties with immigrant detention facilities. Private company CoreCivic owns two of them in Torrance County and Cibola County, and the company has since contracted directly with the U.S. Immigration and Customs Enforcement agency to continue housing immigrant detainees. Doing so removed those counties from the contracts and made HB9 no longer applicable there,

But because Otero County owns its facility, HB9 requires the county to sell the facility or find another use for it, potentially resulting in its closure and, officials say, the loss of up to 280 jobs. 

Instead, earlier this year, the Otero County Commission approved a five-year extension of its contract with ICE and a private company to continue to hold immigrant detainees at the Otero County Processing Center in Chaparral in apparent defiance of HB9.

The commission renewed the contract with ICE before HB9 became effective on May 20. The new contract also contained a provision that prohibited the county from canceling the contract unilaterally, which state officials and lawmakers said was an effort to prevent the state being able to force the county to cancel the contract. 

While not naming Otero County specifically, Interim Courts and Criminal Justice Committee Vice Chair Sen. Joseph Cervantes (D-Las Cruces) said counties will be vulnerable to lawsuits from trial lawyers and “unlimited liability” if they continue to contract with the U.S. Immigration and Customs Enforcement agency to hold immigrant detainees at local jails. 

He said he hopes the county officials “have lots of money set aside” to pay in a civil judgement should someone get hurt or die at a facility that is operating outside the bounds of HB9. 

“If somebody dies, the question will be whether they are immunized under the Tort Claims Act,” Cervantes said, referring to a state law that caps liability for government employees who are found to be acting within the law. 

Cervantes said he “might argue” New Mexico county officials are not acting within the law, “because we said they don’t have the authority to be in these relationships,” he said. “So now they’re not protected by the laws that normally protect counties.”

Committee Chair Rep. Christine Chandler (D-Los Alamos) echoed Cervantes’ assessment that the county officials would be vulnerable to a lawsuit. She also said county officials, in seeking to bypass House Bill 9, ceded disproportionate power to the federal government through a contract the county gave up the right to exit from. 

U.S. Department of Justice sues New Mexico to halt immigrant detention bill

“If people think they really put the state under the barrel, and, aren’t they so clever to change the leases before the law took effect, well, they may have been too clever by a half,” she said. “Because there are real problems with these ongoing activities.”

Otero County Attorney RB Nichols did not immediately respond to Source NM’s request for a response Friday to Cervantes’ comments. 

Days before the Immigrant Safety Act was set to go into effect, the U.S. Department of Justice sued New Mexico, saying the law was unconstitutional because it illegally regulated the federal government and it would cause Otero County to lose roughly 280 jobs while also depriving ICE of a facility leaders said they need to implement President Donald Trump’s mass deportation push.

The lawsuit is pending. Attorney General Raúl Torrez has agreed not to enforce House Bill 9 while the lawsuit makes its way through federal court.