Protestors, AZ AG Question Wisdom, Legality Of Scottsdale Migrant Detention Center

Protestors, AZ AG Question Wisdom, Legality Of Scottsdale Migrant Detention Center

by | Jun 3, 2021 | News

By B. Hamilton |

On Wednesday, not only did hundreds of protesters let their concerns about the federal government’s plan to convert a Scottsdale hotel into a migrant detention center be known, but Arizona’s Attorney General did as well.

A crowd of approximately 600 protesters turned out in front of the former Homewood Suites hotel which is just one of many properties included in an $80 million-plus contract Endeavors has with Immigration and Customs Enforcement (ICE).

The hotel-turned detention center is near residential and commercial properties as well as a high school.

Arizona Attorney General Mark Brnovich sent a letter to the hotel’s lender and borrower expressing “grave concerns about whether a detention facility is an appropriate and legal use” of the property.

“I am further writing to express public safety concerns about the decision to establish this 1,200-person detention facility at the hotel property,” the Attorney General wrote.

Brnovich shares the concerns of the community that there is no guarantee the migrants will not be released into the upscale community which has little access to social services.

The appropriateness of placing a detention center in the middle of town is not the only issue. The Arizona Attorney General noted in his letter that even the “lender, who stands to potentially receive some of the revenues from this contract, has itself voiced concerns that this dramatic change in use would require rezoning the property or at a minimum obtaining a variance.”

Currently the case is in federal court. However, Alexander Kolodin, a well known Republican attorney, told the AZ Free News, that he hopes someone will challenge the ICE decision in state court on federalism and separation of powers grounds. “The Arizona Supreme Court would love to sink their teeth into this one.”

Attorney General letter:

Brian C. Lake
David M. Neff
Perkins Coie LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788

Randy Nussbaum
Philip R. Rudd
Sacks Tierney P.A.
4250 North Drinkwater Blvd., 4th Floor
Scottsdale, Arizona 85251-3693

I understand that you represent the lender and borrower for a property at North Scottsdale Road and East Mountain View Road in Scottsdale (the “Hotel Property”), which is currently the subject of a dispute over being potentially converted into an under 72-hour ICE detention facility for housing up to 1,200 adult and minor migrants.

I am writing to express grave concerns about whether a detention facility is an appropriate and Legal use of the Hotel Property, particularly in light of information that my office recently learned through a court-ordered deposition of the Deputy Director of the ICE Phoenix Field Office, Albert Carter. I am further writing to express public safety concerns about the decision to establish this 1,200-person detention facility at the Hotel Property. The root causes of the current crisis are problems of the Biden Administration’s own making, including policies that have administratively and intentionally crippled ICE’s important law enforcement mission and incentivized illegal immigration. While everyone rightly expects that migrants should be treated humanely, a new detention facility at the Hotel Property should not be established.

First, regardless of how well-intentioned everyone involved is detention facilities inherently carry some risk that one or more individuals who pose a public safety threat are going to be housed there and potentially leave the premises. As outlined in the lender’s Verified Complaint:

The ICE/DHS Contract provides that the hotel on the Property will cease being operated as a hotel and will instead be operated as an ICE/DHS detention center for immigrant families being held in ICE custody who are awaiting deportation, continued custody, or release determinations by ICE, DHS or the Department of Justice.

The ICE/DHS Contract leaves no doubt that the Property will in fact be operated as an ICE detention center, securing and holding all of the individuals who stay there in government custody at all times, day and night. For example, the ICE/DHS Contract states that “[a]all residents will be in the legal custody of ICE, therefore they can only be released at the direction of ICE” (id. at 60, § 2), and “[a]t all times, individuals comprising family units shall remain in the legal custody office, irrespective of residential services provided by Service Provider.” Id. at 62, § 5(a)(iii), (xi). The ICE/DHS Contract also requires that those providing services at the Prope11y “shall structure all programs and implement strategies designed to ensure residents remain within the residential setting to include, if necessary, consequences for depa11ing without authorization.” Id. at 62, § 5(a)(xi).”

This is consistent with the deposition testimony of Director Carter, who testified that ICE “detention facilities are broken down in multiple ways for immigration purposes. There is an over 72-hour facility where individuals are housed for longer term. But there are also under 72- hour facilities that are generally managed through intergovernmental service agreements that would also be included.” Mr. Carter’s testimony confirms that what is being established is a type of detention facility, not a hotel.

Mr. Carter also provided examples of some of the under 72-hour facilities in Arizona including facilities managed by the Coconino County Sheriff’s Office, La Paz County Sheriff’s Office, Santa Cruz County Sheriff’s Office, and the San Luis Detention Center.4 While there was one hotel-the Holiday Inn Express & Suites Phoenix/Chandler-according to the ICE detention data, the average length of stay was only 2 days, and only 2 detainees were being housed there, compared to up to 1,200 contemplated for the Hotel Property.

Second, there is no guarantee that housing 1,200 detainees in this area would not result in some of them being released into the community. ICE has adopted irresponsible “enforcement priorities” that administratively repeal almost all ICE enforcement. Those “enforcement priorities” notably do not include those who have previously been convicted of what the Biden Administration deems insufficiently serious crimes or those who have been charged but not convicted of a crime. Given this, if the prime contractor is unable to place particular detainees, it is foreseeable that ICE could simply release the detainee into the community because they do not fall within the Biden Administration’s extremely narrow “enforcement priorities.”

The State of Arizona and State of Montana recently filed a lawsuit in federal district court in Arizona challenging these enforcement priorities as arbitrary and capricious and contrary to law. The potential release of individuals from the detention facility at the Hotel Prope1ty only illustrates why the enforcement priorities are bad policy that is harmful to public safety. See Arizona and Montana v. Department of Homeland Security, No. 21-186 (D. Ariz.).

Third, based on the limited information available, this does not appear to be a good location for a 1,200-person detention facility in any event, and may well or at least should require a significant additional study by the local government before such a drastic change is implemented. The Hotel Property is adjacent to an apartment complex and near a senior living facility. It is also across the street from a residential neighborhood and another apartment complex. It is less than a block from a high school, less than one mile from a preschool, and less than two miles from a middle school.

The lender, who stands to potentially receive some of the revenues from this contract, has itself voiced concerns that this dramatic use change would require rezoning the property or at a minimum obtaining a variance. The Verified Complaint alleges:

On information and belief, using the Prope1ty in the manner stated in the ICE/DHS Contract would not be in compliance with existing City of Scottsdale zoning ordinances and/or other restrictive covenants governing the Property, and would therefore require a change to, or waiver or exemption from, the existing zoning ordinances and use permits, or would result in a violation of the existing zoning ordinances and use permits.

The Lender’s application for a temporary restraining order, similarly stated:

It is also very likely that Borrower’s conduct in agreeing to the ICE/DHS Contract and preparing to perform it violated the provisions in the Loan Agreement and Deed of Trust prohibiting Borrower from doing anything at the Prope1ty that might not comply with existing zoning ordinances and prohibiting Borrower from attempting to change the zoning ordinances or obtain an exception or variance from them. See Loan Agreement§ 5.18; Deed of Trust§ 3. Borrower has represented that a zoning change from the City of Scottsdale will be needed to convert the hotel on the Property into condominiums (and has not yet been obtained). In that case, it seems unlikely that the City of Scottsdale would allow the Property to change its use from a hotel to an ICE detention center without requiring even more drastic zoning changes or variances.

Fourth, despite obvious potential impacts from the establishment of the detention facility to the “human environment,” 42 U.S.C. §4332(C), DHS has not conducted any of the necessary environmental analysis under the National Environmental Policy Act (“NEPA”) to study such impacts. See, e.g., Hanly v. Mitchell, 460 F.2d 640, 647 (2d Cir. 1972) (NEPA “must be construed to include protection of the quality of life for city residents. Noise, traffic, overburdened mass transportation systems, crime, congestion, and even availability of drugs all affect the urban ‘environment.”‘ (cleaned up)). Absent any such compliance efforts, the contract with DHS is likely invalid as a matter of law.

This violation of NEPA is part of a broader pattern of DHS failing to comply with NEPA concerning immigration and border control policies. Because of these other violations, I have filed suit against OHS and its officials in the U.S. District Court for the District of Arizona. See Arizona v. 1\Mayorkas, No. 21-617 (D. Ariz. 2021).

For all of these reasons, I urge you not to go forward with converting the Hotel Property into a 1,200-person detention facility.

Scottsdale residents intend to protest at the site again Friday evening.

I Investigated Coyotes, Killers And Cartel Members, Biden’s Border Policy Won’t Keep Us Safe

I Investigated Coyotes, Killers And Cartel Members, Biden’s Border Policy Won’t Keep Us Safe

by | May 13, 2021 | Opinion

By Lacy Cooper |

For the last 15 years I’ve protected Arizonans and Americans from dangerous criminals – the past eight working for the United States Attorney’s Office securing the southwest border. I’ve seen how decisions made in the halls of power – whether it be Washington, D.C., or Phoenix – play out on the ground. When our leaders put politics and political correctness before safety and security, there are real life consequences.

I know this because I’ve had face-to-face conversations with cartel members and listened to wiretaps on their phones. I’ve investigated them for drug trafficking, human smuggling, murders and mutilations. That was my job. I was a border security section chief for the District of Arizona.

In March, the flood of immigrants crossing the U.S.-Mexico border illegally was 67% higher than at the same time in 2019, when the United States last experienced a surge of immigrants at the border. According to Homeland Security Secretary Alejandro Mayorkas, “We are on pace to encounter more individuals on the southwest border than we have in the last 20 years.” Our southern border is not secure.

This is a crisis. Arizona Gov. Doug Ducey has declared a state of emergency in several counties and deployed the National Guard. And it is a crisis that is entirely President Joe Biden’s making. Every action by this administration sends a direct signal to bad actors who control the flow of immigrants and drugs across the border.

Biden’s public safety failure

The media frenzy surrounding Biden’s border crisis has served to cover up another truly frightening aspect of this administration’s immigration policy: the release of criminals from jails and prisons. On Inauguration Day, the Department of Homeland Security issued an immediate 100-day pause on certain deportations.

With few exceptions, individuals who were going to be deported and were just awaiting their complimentary flight (or walk) back to their home countries would no longer be removed. The immediate consequence was that convicted felons who did not have permission to be in the United States were released from prisons after their sentences and let onto the streets.

Texas Attorney General Ken Paxton successfully sued Washington and obtained a nationwide temporary restraining order preventing DHS from enforcing the 100-day moratorium. But the Biden administration simply issued replacement guidance, which had the same effect. Immigration and Customs Enforcement got the message – individuals who do not meet certain enforcement priorities should not be removed from the country. And unlike the 100-day pause, this new guidance has no expiration date.

The Biden administration’s enforcement priorities are so narrow that they exclude many violent offenders. Take, for example, the “public safety” priority. It allows ICE to remove individuals who have been convicted of an “aggravated felony.” Sounds serious, right? But what if I told you that some murder convictions do not qualify as aggravated felonies. To put it in perspective, at least one of the killing offenses for which former Minneapolis officer Derek Chauvin was convicted would not qualify.

Violent offenders on the street

I prosecuted a Honduran in 2014 who had been denied asylum but returned to the United States and got into an altercation during which he hit his victim in the head with a metal bar, fracturing his skull. The resulting aggravated assault conviction was not an aggravated felony.

Just last year, the 9th Circuit ruled that if an individual harms a pregnant mother and kills her unborn fetus, a murder conviction based on that conduct would not qualify as an aggravated felony. An Oregon robbery conviction was also excluded from the definition. Another 9th Circuit opinion called into question whether a child pornography conviction would qualify even when a child under 16 was involved. The 2nd Circuit found that a conviction for unlawful firearms trafficking was not an aggravated felony by the federal standard. And the 3rd Circuit found that a woman in her 30s who was convicted of having sexual intercourse with a 15-year-old boy was not an aggravated felon.

And yet, this is the porous metric DHS has decided to use when determining whether our community’s public safety is a priority. Tragedy will undoubtedly flow from this awful choice, and it is not just those who reside in close proximity to the border who will be affected. President Biden, it’s time to make public safety a real priority.

Lacy Cooper was the border security section chief for the U.S. Attorney’s Office for the District of Arizona. She served 15 years as both a county and federal prosecutor targeting violent offenders, gang members, cartels and terrorists. She is now Of Counsel with the law firm of Schmitt Schneck Even & Williams. The views expressed in this commentary are her own.