In the days leading up to Georgia’s gubernatorial primary last month, one of the candidates, state Sen. Michael Williams, made national headlines for a “deportation bus” that cruised around with the phrase “FOLLOW ME TO MEXICO” painted on the back. The publicity stunt proved to be an epic flop — Williams barely got 5 percent of the vote.
Another candidate, Georgia Secretary of State Brian Kemp, garnered less national attention with a slightly smaller racist vehicular gimmick. In a campaign ad, he boasted about having a big truck to “round up some criminal illegals.” Kemp came in second in the primary election and advanced to the July 24 runoff.
But both Kemp and Williams were bested by an even more impressive propagandist: Lt. Gov. Casey Cagle boasted his own gimmick — call it a deportation board.
Since October, Cagle, who will almost certainly be the next occupant of a governor’s mansion that the Cook Political Report rates as “Solidly Republican,” has been on a crusade against the city of Decatur, weaponizing a once-obscure Immigration Enforcement Review Board to battle the city for being a “sanctuary” in violation of Georgia law. He’s made his fight with Decatur central to his campaign for governor. But it’s more than just a ploy to score political points: His complaint appears likely to be successful in front of the stacked board, which means Decatur risks losing state funding for a policy that city officials and observers are adamant comports with state law.
The showdown between Cagle and Decatur has its origins in the start of Donald Trump’s presidency. When Trump began his crackdown against immigrant communities, activists in Georgia launched a counteroffensive, encouraging local governments to end police entanglement with federal immigration officials. In Decatur — a small, progressive enclave just northeast of Atlanta — meetings with city officials and appearances before the city commission culminated in a September 29, 2017, policy against arresting, detaining, or transporting anyone based solely on a detainer request from U.S. Immigration and Customs Enforcement.
City officials say they merely codified what had long been an unwritten rule.
Decatur, which has a population of about 23,000, became the third Georgia city to adopt a nondetainer policy in 2017, joining four counties that had done so a few years earlier. City officials say they merely codified what had long been an unwritten rule — that the police would not hold people at the behest of ICE without a judicial warrant.
The review board was expected to issue a final decision on the complaint during a June 27 hearing, issuing a draft decision three days before the May 22 primary finding the city’s policy to be illegal. (On Friday, the IERB indefinitely postponed its decision-making on the issue, saying it would be providing only a status update on June 27.) The very public confrontation between Cagle and Decatur has drawn attention to the review board, which Cagle, as lieutenant governor, has helped build by appointing two of its members, creating a potential conflict of interest for his own complaint. And since its creation in 2011, the board has been used almost exclusively by a notorious anti-immigrant activist, earning it the description of a “personal public investigative agency.”
Decatur city officials have put up an unusually strong fight, defending the legality of their policy, pointing out the lieutenant governor’s potential conflicts of interest, and decrying his political maneuvering. “I think what’s really clear is that Casey Cagle, back in October, realized he had a issue that he could seize on by deciding to publicize that the city of Decatur in his view was a ‘sanctuary city,’” City Attorney Bryan Downs told The Intercept. “And it played very nicely because he’s running for governor.”
Danny Kanso, Cagle’s press secretary, said that Cagle is doing nothing more than upholding state law. “Lt. Governor Cagle has a proven record of taking action on illegal immigration – and the examples go back years, not months,” Kanso wrote to The Intercept. “As Lt. Governor, he has fought to outlaw and defund sanctuary cities – and that’s exactly what he’s doing with this case. He’s doing what the people of Georgia elected him to do.”
Cagle’s complaint against Decatur is rooted in Georgia’s ban against sanctuary cities, which was passed in 2009. Under state law, local governments are prohibited from adopting policies that would restrict local officials “from communicating or cooperating with federal officials or law enforcement officers with regard to reporting immigration status information.”
The anti-sanctuary movement is a stark philosophical break for a region proud of its independence from the federal government, but some Georgia counties enthusiastically cooperate with ICE. Bartow, Cobb, Floyd, Gwinnett, Hall, and Whitfield counties participate in the agency’s 287(g) program, which is named after a provision in the Immigration and Nationality Act and calls on local police officers to work with the federal government to enforce federal immigration laws.
Even some localities that don’t have formal agreements with ICE are willing to hold immigrants on detainers until ICE can assume custody. But in 2014, a string of federal court decisions found that ICE detainers must comport with Fourth Amendment requirements, namely that a detainer could be issued only upon a finding of probable cause. That prompted a wave of activism calling on local governments to protect the constitutional rights of detainees in their custody and not to prolong their detention without probable cause.
Decatur formalized its nondetainer policy in September. Within a week, Cagle had launched a campaign against the city. For the next five weeks, it was a war of paperwork and social media posts:
- On October 6, Cagle sent a letter to the state auditor saying that Decatur appeared to be in violation of Georgia’s prohibition of sanctuary cities. He asked for an audit of Decatur’s immigration compliance reporting obligation.
- Two days later, Downs, the city attorney, wrote to the state auditor that “a review of the actual facts” made clear Decatur had not violated state law. The city’s newly memorialized policy “addresses arrest, detention and custody of individuals pursuant to judicially issued warrants, consistent with the 4th Amendment to the United States Constitution,” he wrote (emphasis in original). “The policy does not address — much less prohibit or restrict — communications or cooperation with federal officials or law enforcement officers with regard to reporting immigration status information.”
- On October 10, Cagle used his official gubernatorial campaign Facebook page to blast Decatur for “putting the interests of criminal illegal aliens ahead of our safety” as well as to threaten to cut state funding for the city.
- On October 18, Cagle wrote a letter to Downs saying that if the city did not amend its policy within 14 days, he would “have no choice but to intervene and pursue all available resources to uphold the rule of law.”
- On November 1, Cagle posted to his campaign Facebook page: “TODAY is the deadline! If the City of Decatur does not abandon their practice of harboring CRIMINAL illegal immigrants who have already committed terrible crimes in our country, I will start the process to withhold state funding.” The post included a link to a petition on his campaign website titled “Defund Decatur.” (Petition signers were asked to donate $10 to help share it on Facebook. A follow-up note warns activists that Facebook, “a liberal California company,” had banned a campaign ad because it contained an image of a firearm.)
- On November 6, Cagle filed a complaint with the Immigration Enforcement Review Board opening the door to sanctions, including the withholding of state funding.
With the deck heavily stacked against the city, the battle between the lieutenant governor and the city continued to play out for the next several months, revolving around a handful of issues.
Conflicts of interest: Two members of the board, Boyd Austin and Mike Yeager, were appointed by Cagle. Meanwhile, IERB Chair Shawn Hanley and board member Phil Kent had both made public statements supporting Cagle, prompting the city to file motions for their recusal. Kent, who had called Cagle a “winner” for going after Decatur about a week before the lieutenant governor filed the complaint, recused himself in March. Hanley did not. (Hanley had previously named himself and Kent to a two-person review panel to investigate the complaint. After Kent’s recusal, Hanley recruited Vice Chair James Balli to the panel.)
Subpoena power: The city tried to subpoena Cagle, noting that his appearance at the IERB hearing could not be assured. When that attempt failed, Decatur tried to subpoena the lieutenant governor’s chief of staff and director of external affairs. Cagle’s written communications about Decatur’s policy “were likely authored, at least in part, by staff members within the Office of the Lieutenant Governor,” Downs wrote in the motion. That request, too, was denied.
Using taxpayer money to pull off a campaign stunt: Downs’s suspicions about Cagle’s failure to appear at the May 15 hearing were correct. Cagle did not attend the hearing, nor did anyone appear to testify on his behalf. In his stead, the lieutenant governor sent two staffers from his Georgia government office, Irene Munn and Macy McFall. Their appearance triggered a complaint by A. Thomas Stubbs, a lawyer from Decatur, alleging campaign finance violations by Cagle. The complaint accuses Cagle’s campaign of using taxpayer-paid government employees “to do campaign work during work hours while they were apparently being paid their taxpayer-funded salaries,” resting on Munn and McFall’s appearance at the hours-long hearing and work Munn appears to have done on the complaint. Stubbs filed the complaint one day before the IERB issued its initial report on the matter, but Kanso, Cagle’s spokesperson, described the complaint as an effort to divert from the board’s favorable findings. “Stubb’s allegation lacks merit,” he wrote, “and it’s so nakedly political that the filer probably has exposed himself to sanction for filing a frivolous complaint.” The complaint remains pending.
Lack of transparency: Decatur has also sued the IERB, accusing it of meeting in secret to discuss Cagle’s complaint, in violation of Georgia’s Open Records Act. The city’s lawsuit points to the decision drafted by the IERB’s review panel as one such manifestation of the alleged secret meetings. In it, the IERB expounded upon the genesis of Decatur’s written policy.
Sometime in September of 2017, what Decatur referred to in testimony as a ‘loose coalition of groups’ met with the Decatur Mayor and City Manager. For background information only, while one group was identified at the May 15 hearing as ‘Hate Free Decatur,’ the identities of the other members were not specified but ‘Project South’, the ‘Georgia Latino Alliance for Human Rights’, and the ‘Georgia Not1More Coalition’ are identified by Move-On.org as the groups who presented the written ‘policy’ to Decatur. Regardless of individual identity, it is clear that the ‘loose coalition’ shared a common vehement opposition to federal immigration laws and a desire to have local jurisdictions pass written policies refusing to cooperate with federal law enforcement.
Azadeh Shahshahani, the legal and advocacy director of Project South, said the conversations with Decatur officials were part of a years-long push by immigrants’ rights groups to keep local police from doing the work of federal immigration officials. “We’ve been meeting with elected officials all over the state, as is our right, as constituents and as people who live in this state,” she said. “The city of Decatur was one of the places that a number of us were talking to, and much to their credit, they agreed with us that having a policy in place limiting collaboration with ICE is in line with the constitution as well as with policy.”
In 2011, Georgia passed a sweeping immigration law, one of the harshest in the country that, among other things, included a “show-me-your-papers” provision empowering local law enforcement to investigate the immigration status of criminal suspects. The law, which has largely withstood legal challenges, created the IERB, about which very little was known until it became an arena for the gubernatorial election.
There’s a reason for that: Only 22 complaints have been filed with the IERB since its inception, according to state records, and all but two of them were filed by D.A. King, a anti-immigrant hardliner. While a number of complaints, including Cagle’s, remain pending, the majority have been dismissed by the IERB. In two cases, King withdrew his complaint. Only one complaint — against Atlanta — resulted in sanctions (a $1,000 fine) for the city’s failure to comply with SAVE, a Georgia program that makes access to certain public benefits contingent upon immigration status. (In 2012, the board was going to fine DeKalb County, but it reduced the fine to $0 in exchange for assurances from the county that it would comply with SAVE.)
Still, the mere act of filing the complaint has had a chilling effect on communities, said Naomi Tsu, who works in the Southern Poverty Law Center’s immigrant justice project. That Decatur is fighting the complaint against it is the exception, not the rule, she noted.
“All of the jurisdictions I’ve seen have just ended the programs being challenged, to the detriment of their people.”
“All of the jurisdictions I’ve seen have just ended the programs being challenged, to the detriment of their people,” Tsu said. She pointed to the complaints King filed against school districts that were offering English classes to the parents of their students. King’s complaints alleged a violation of a state law that requires that public entities verify the immigration status of recipients of adult education services.
“We want people to speak English so they can be part of their communities more fully,” Tsu said. “But D.A. King filed a couple complaints against school districts that did this, and now school districts are for the most part not offering English classes.”
In Decatur, the high-stakes nature of a complaint filed by the lieutenant governor and gubernatorial candidate explain in part why the city is fighting back so aggressively. The city is “blessed with smart, principled, courageous leaders who are not willing to be bullied by an official using the powers of his office to obtain higher office,” Downs said.
The IERB itself has treated Cagle’s complaint as more of a priority than previous complaints. In February, it held a hearing in which it heard 14 complaints filed by King, dating back to September 2016. But in May, it said it would be issuing a decision on Cagle’s complaint in June, just seven months after it was first filed. (In mid-June, the IERB indefinitely put off the decision date.)
King is the founder and president of the Dustin Inman Society, which the Southern Poverty Law Center classifies as an anti-immigrant hate group. Kent, the IERB member who recused himself, has written for the Dustin Inman Society’s blog, as well as other nativist publications, according to the SPLC.
There is no penalty for filing a frivolous complaint with the board, which makes it subject to abuse. Even Hanley, the IERB chair, pointed out this flaw at an IERB hearing in February.
“Some of these complaints are pretty loose. Small counties pay a lot of money to defend against what could be frivolous complaints. I don’t think any of these complaints are frivolous but some of them are pretty close. We take complaints seriously and also take seriously protecting taxpayer dollars,” the SPLC reported Hanley said. Kent, for his part, pushed back. “We don’t need to do anything about it, we can dismiss complaints,” he said, according to the SPLC.
Last month, Tennessee passed an anti-sanctuary bill that creates sanctions for localities found to violate the law, while South Carolina’s governor has pushed a proposal that would require local jurisdictions to annually prove to the state’s law enforcement division that they are in compliance with federal immigration laws. But what Georgia has — a standalone entity that hears complaints from the public and has broad powers to subpoena and sanction — appears to be the only body of its kind across the country.
Decatur is not the only Georgia locality with a nondetainer policy, but it is the only one Cagle has accused of violating the state’s anti-sanctuary law. The reason, according to Cagle’s opponents, is transparently political.
“People in Decatur weren’t going to vote for him in the first place.”
Decatur is an overwhelmingly Democratic city, whereas other Georgia localities with nondetainer policies have slightly more mixed voting records. For example, Fayette County, which adopted a nondetainer policy in 2015, has not elected a Democratic president in more than 40 years. Critics have pointed out that by targeting Decatur, Cagle is able to court GOP voters who value a tough-on-immigration candidate. “I think they know that this complaint is baseless from a legal perspective, but from a political perspective, I believe that he feels he doesn’t have anything to lose, given that Decatur is where it is politically — it’s a progressive haven, basically,” said Shahshahani. “He doesn’t have anything to lose by going after Decatur because people in Decatur weren’t going to vote for him in the first place,” she said.
Downs, the city attorney, said city officials don’t recall getting a detainer request from ICE, ever. Cagle “chose not to go after DeKalb County sheriff who has a nondetainer policy, he chose not to go after city of Atlanta, which has until recently had a nondetainer policy,” Downs said. Rather, the lieutenant governor chose to “pick on” a 4.4-square-mile city of 22,000 people, he said.
Decatur does not have a jail, which means that people arrested in the city are generally booked in DeKalb County. (As of November 2017, DeKalb County had received 3,178 detainer requests, according to an analysis of ICE data by the Transactional Records Access Clearinghouse at Syracuse University.)
Bryan Cox, an ICE spokesperson, said that ICE detainers are sent to the detention center where the person was booked. “The city’s statement may be technically accurate only in the sense that it doesn’t have a city jail, so persons arrested in the city are booked into the county facility, which means the detainer is sent to county rather than to city officials,” Cox said.
Still, the implications of a Cagle victory at the IERB could resonate beyond Decatur. “This issue is about honoring the laws of our nation and state to ensure that criminal illegal aliens who commit serious crimes against our society are arrested, deported, and never allowed to commit crimes against Georgians again,” Kanso said. The IERB complaint against Decatur, he said, has the potential to set a precedent “for any other city or county that seeks to provide sanctuary for criminal illegal aliens.”
Update: June 18, 2018, 8:46 p.m.
The Immigration Enforcement Review Board on Friday cancelled the June 27 review panel hearing during which it was supposed to issue its decision on Lt. Gov. Casey Cagle’s complaint. The piece has been updated to reflect that.