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Otero County’s new contract with U.S. Immigration and Customs Enforcement for civil immigration detention is unlawful, Attorney General Raúl Torrez argued in an emergency court petition asking the New Mexico Supreme Court to intervene.

The petition, announced by the state Department of Justice on Wednesday, seeks a court order invalidating the service agreement and placing an emergency stay on enforcing it while the case is litigated.

The new five-year service agreement between the county and ICE provides the facilities for holding detainees, recently estimated at approximately 900 people, at the Otero County Processing Center in Chaparral. The facility, operating since 2008, is overseen by Management and Training Corp., a private company. 

The DOJ petition claims the county did not have legal authority to enter into the agreement and did not obtain required approval from the state Department of Finance and Administration, making it void under state law.

The contract was criticized by lawmakers who viewed it as an evasion of , a newly enacted state law taking effect in May. Under the law, public bodies like Otero County will be barred from participating in federal immigration detention, and existing agreements must be terminated as soon as possible. Otero County’s new agreement with ICE does not allow the county to terminate the agreement early.

The DOJ petition acknowledges objections regarding HB 9, but presents a different legal argument as the basis for intervention: that the county never had authority to hold people accused only of civil immigration violations.

The statutory authority cited by Otero County for leasing beds to ICE, according to the DOJ, applies to federal prisoners, not people detained and removed for being unlawfully present in the United States.

In a second argument, the DOJ says the agreement also would have required approval from the New Mexico Department of Finance and Administration, counting the contract as a joint powers agreement between public agencies under state law. The county never sought that approval.

"The rule of law requires that all public bodies follow clearly established legal requirements, without exception," Torrez stated in a news release. "Otero County did not obtain the approval state law requires, and the agreement is invalid. We are asking the Court to act swiftly to prevent its enforcement."

On Wednesday, Otero County Manager Pamela Heltner confirmed that the agreement was in force and routine operations at the facility continued.

Controversy over the agreement began when the county’s three elected commissioners approved it at an emergency session on March 13. Torrez’s office gave notice that the meeting, held on a Friday evening with only a few hours’ public notice, violated New Mexico’s Open Meetings law.

The county rejected that claim, saying a legitimate financial emergency justified the session. As the previous contract extension was about to expire, the county said it risked defaulting on revenue bonds that funded construction of the facility. Without a new agreement, County Attorney R.B. Nichols said the county’s credit rating was in jeopardy along with the potential loss of a $68 million asset and over 280 jobs.

Without admitting to an open meetings violation, Commissioners Vickie Marquardt, Gerald Matherly and Amy Barela took a second vote on the agreement in a regularly scheduled meeting on March 25, a move that headed off potential litigation.

While the county did not immediately respond to Torrez’s petition, Nichols addressed one of its arguments during the March 25 meeting. He said the DOJ was improperly applying New Mexico’s Joint Powers Agreements Act to the county’s agreement with ICE.

“The (agreement) is not a joint exercise of common governmental power,” Nichols told the commissioners. “It is a federal service contract under which the county provides detention bed space to ICE in exchange for payment.”

“I’m curious to see what the state Supreme Court does and how durable the arguments end up being,” state Rep. Sarah Silva, a Democrat whose district includes the processing facility, told the Journal in a text message. Silva had called on the attorney general to evaluate the emergency meeting as well as the contract.

Nichols said on March 25 that if the agreement is ultimately declared void, it would result in a foreclosure and auction of the facility to a private owner that might enter into its own agreement with ICE.

In any case, Nichols said, “The immigrants currently being housed there … will still be detained and processed.”

Algernon ��’A������������ is the Journal’s southern New Mexico correspondent. He can be reached at adammassa@abqjournal.com.