#detainer requests

Immigrations and Customs Enforcement, a perfectly normal federal agency that has definitely not become a Trump-era goon squad, has created a website to shame newly elected North Carolina sheriffs who have declined to imprison people without a warrant on ICE’s say-so.

If they don’t comply, the website says, ICE will have no choice but to conduct more raids in their communities — and wouldn’t that just be a shame?

The sheriffs elected last year in Wake, Durham, Mecklenburg, Guilford, and Forsythe Counties — all of whom, coincidentally, are black — campaigned on promises to stop cooperating with ICE on detainer requests or take part in the 287(g) program, which essentially turns sheriff’s deputies into de facto immigration agents.  (In Wake and Durham, this was the campaign’s defining issue.)  Since taking office, they’ve made good on those promises, to ICE’s dismay.

Earlier this year, after rounding up two hundred allegedly undocumented immigrants in mass raids, ICE blamed these sheriffs and threatened to continue its “more visible presence” in the state if they didn’t do as they were told.  

After ICE complained, Republicans in the General Assembly tried to step in, crafting a bill that would force sheriffs to do ICE’s bidding.  It died with Governor Cooper’s veto.

ICE’s biggest beef is the detainer requests, in which ICE asks sheriffs to keep suspected undocumented immigrants in custody for up to forty-eight hours after their charges have been adjudicated so that ICE agents can detain (and eventually deport) them.

But these requests are constitutionally dicey: They come only with an administrative warrant — meaning, a statement that an ICE agent believes the person is in the country illegally — not a court order or arrest warrant.  In short, ICE doesn’t have to convince a judge that the people should be held in jail; it just wants local authorities to take the agency at its word.

Some courts have ruled that these requests amount to an unconstitutional second arrest and that detainer requests don’t constitute probable cause.

As Chris Lasch, co-director of the Immigration Law and Policy Clinic at the University of Denver, told the INDY last year: “The way I think about it is the federal government is sending over a piece of paper — the detainer — and asking the locals to hold somebody, but asking them to do it under circumstances where they don’t have authority to do it.”

As important to sheriffs who work in urban environments, partnering with ICE can breed distrust among Hispanic communities.   If residents — including undocumented ones — don’t feel safe calling law enforcement because they fear they or their loved ones will be turned over to immigration officials, criminals can prey on the vulnerable with impunity.  (Research, in fact, has shown that cooperating with ICE doesn’t make communities safer and that immigrants commit fewer crimes than natives.)

And, not for nothing, ICE frequently gets things wrong: According to the National Immigrant Justice Center, ICE wrongly identifies people for removal 30 percent of the time, which means U.S. citizens and legal residents could be held in jail without a court order over something as simple as a misspelled name in a database.

None of that matters, says ICE.  What matters is that you should be very, very afraid.

“When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders onto the streets, it undermines ICE’s ability to protect public safety and carry out its mission,” the agency says on its new website, which features rows of scary-looking mug shots of men who “MAY BE RELEASED INTO YOUR COMMUNITY.”

The mostly Hispanic men (and one woman) with “detainers outstanding” in ICE’s nifty Mug Shot Collage are charged with things like murder and drug trafficking and child sexual assault.  Of course, never mind that they are actually in jail and — if found guilty — likely to stay locked up a while.

Take, for instance, Efren Caballero, an alleged murderer whom ICE says could be released from the Durham County jail.  Turns out, Caballero has been locked up since Valentine’s Day 2016 on a litany of charges — assault on a female, burglary, attempted murder, and, yes, murder.  His bond is set at $750,000.

He’s probably not going anywhere — and even if he was, how hard would it be for ICE to get a court order for his detention?  They’ve had almost four years now to do so.

Same goes for Eliseo Gonzalez, another alleged murderer ICE says is coming for your family.  He’s been in the Durham jail since November 2016 on a $500,000 bond.  Again, ICE has plenty of time to secure a court order should he eventually be released.

The two other alleged murderers on ICE’s website aren’t eligible for release, according to The News & Observer.

ICE has sought about 160,000 detainers nationwide in the 2019 fiscal year, including 2,975 in North Carolina.  Of those, according to data the agency gave WBTV, 489 detainers were declined by law enforcement.

As the N&O notes, “It is not clear if all of these inmates were released or if they were subsequently arrested by ICE.”

The 489 individuals whose detainers were listed had either been charged with or convicted of 1,427 criminal offenses, according to ICE.  Most of the charges were for traffic offenses, DUI, assault, and drugs.  There were only two homicide charges, and neither of those has resulted in a conviction — which means both individuals are likely still in jail.  ICE declined to provide their names to the N&O.

If the sheriffs don’t get with the program, ICE’s website warns, the mass roundups will be on their heads: “As ICE has repeatedly made clear, when local jurisdictions refuse to cooperate with federal law enforcement, they not only betray their duty to protect public safety, but force ICE to be more visible in those areas.”

Got that?  Do what we say, or else.

This is a perfectly normal government agency.

Contact editor in chief Jeffrey C. Billman at [email protected].

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Two weeks after House Republicans filed a bill that would require sheriff’s to cooperate with Immigration and Customs Enforcement, the North Carolina Sheriff’s Association has come out in opposition.

The Sheriff’s Association had been noticeably quiet on the bill as it advanced through House committees.  But on Wednesday -- just as the bill was heading for debate on the House floor -- the association put out a position paper calling the legislation an “an unwise encroachment” on the authority of sheriff’s to run their own jails.

“House Bill 370 would compel duly elected sheriffs to participate in a voluntary federal law enforcement program.  The North Carolina Sheriffs’ Association opposes such mandate,” the statement reads.  “The people of each county, as reflected by the decision of their elected sheriff, should retain the ability to decide which lawful method they will utilize in complying with existing federal and state law.”

“Just as the Association opposes any state law requirement to participate in the ICE detainer program,” the statement goes on to say, “it would also oppose legislation prohibiting sheriffs from participating in the ICE detainer program.”

House Bill 370 would require sheriff’s to comply with ICE detainers, which are requests from ICE that a local facility continue to hold a person ICE believes may be subject to deportation for up to forty-eight hours after they would have otherwise been released.

ICE detainers are not mandatory.  The form itself says the recipient agency is “requested” to hold the subject of the detainer, and/or notify ICE before they are released.

Courts have found that detainers amount to a new arrest requiring probable cause under the Fourth Amendment, and that the administrative – as opposed to judicial – warrants that typically come with them are not sufficient proof that probable cause exists to continue to hold people when they otherwise should have been released.

As such, requiring sheriff’s to comply with detainers could open them up to lawsuits.  If the bill passes, residents who suspect their county is not honor detainers could seek an injunction, and courts could impose monetary penalties for not complying.

The bill is sponsored by Representatives Destin Hall, Brenden Jones, Jason Saine and Carson Smith, a former Pender County sheriff.  The bill is co-sponsored by state House Speaker Tim Moore.

Sponsors of the bill have said that sheriff’s who don’t honor detainers are putting public safety at risk.  The bill comes after some of North Carolina’s largest counties elected new sheriff’s pledging to reverse their predecessor’s policies on cooperating with ICE, either by not honoring detainers without a judicial warrant, or by ceasing participating in the 287(g) program, which deputizes local officers to carry out some immigration enforcement duties.

“The Association supports cooperation between sheriffs and all local, state and federal law enforcement agencies.  However, it is an unwise encroachment on the lawful responsibility of the sheriff, who serves as the “keeper of the jail,“ to mandate how this cooperation should occur,” the Sheriff’s Association says.  “Additionally, allowing for a ‘private enforcement’ court action is unwise and would likely instill a ‘chilling effect’ on sheriffs when deciding how to best carry out the duties of their office.”

“Therefore,” the statement continues, “the North Carolina Sheriffs’ Association urges the General Assembly to not enact Edition 1 of House Bill 370, Require Sheriff Cooperation with ICE, and to work with us cooperatively to craft a mutually acceptable solution to address this very important issue.”

Sponsors of a bill that would force North Carolina sheriffs to cooperate with Immigration and Customs Enforcement have been clear about what prompted it: The election of new sheriffs — including in Durham, Wake, Mecklenburg, Buncombe, and Forsyth Counties — who pledged to stop participating in ICE programs.

Counties that had previously participated in the federal 287(g) program, which deputizes local officers to carry out some immigration enforcement duties, promptly ended their agreements, and agencies that had complied with ICE detainer requests announced that, going forward, they would only hold people in jail for ICE with a judge’s order.

This, according to Republicans in the state House, could not stand.

“These sanctuary sheriffs are simply putting partisan politics ahead of public safety,” Representative Destin Hall, a sponsor of House Bill 370, said on the House floor April 3, shortly before the measure passed on a party-line vote of 63–51.  (Hall didn’t respond to an interview request.)

That’s not a big enough margin to overcome a veto, should the bill pass the Senate, where Republicans have a slimmer majority than in the House.  But despite the apparent long odds, its backers — including the powerful House Speaker Tim Moore — have sought to raise the bill’s profile.  

Last month, Moore appeared on Fox News’ primetime show The Ingraham Angle, whose host, Laura Ingraham, famously ranted last year about “massive demographic changes” that “most of us don’t like” because “the America that we know and love doesn’t exist anymore.”  Moore told Ingraham’s viewers, “It’s just irresponsible for any official, particularly a law enforcement official, to in any way advocate releasing someone who is a criminal, who committed a crime, back out onto the streets, who should not even be here. … Some of the folks that we’ve seen already in North Carolina in these counties where some of these sheriffs have done this are people who assaulted law enforcement officers, are people who committed sex offenses.”

A study of forty years of data published in the Journal of Ethnicity in Criminal Research in 2016, however, found no correlation between immigration and crime.  On the contrary, the researchers said, “Our results indicate that immigration is consistently linked to decreases in violent (e.g., murder) and property (e.g., burglary) crime” from 1970 to 2010.

Nationwide, the vast majority of people subject to ICE’s detainer requests have no or minor criminal records. In North Carolina, of the nearly forty-six thousand individuals ICE asked to be detained from the fiscal years 2003 to 2016, only 60 percent had been convicted of a crime, according to Syracuse University’s Transactional Records Clearinghouse, and many of those holds were sent to state prisons, not local jails.  (More recent information isn’t available through TRAC because it’s been withheld by the Trump administration.)

“The public safety thing is really a red herring in the reality that ICE is physically present at state prisons, where disproportionately individuals with serious crimes are being held and serving their sentence,” says Mark Fleming, associate director of litigation at the National Immigrant Justice Center.  “Really, what this is about is how wide can you make the net to get as many undocumented immigrants or immigrants that are otherwise deportable into the pipeline.”

But Moore’s rhetoric echoes that of President Trump.  Trump — like Governor Cooper and the entire General Assembly — will be on the ballot next year, and his hardline immigration policies, designed to energize his base, will likely be front and center during the campaign.  In a broad sense, Moore needs Trump to do well in North Carolina to prevent further Democratic gains in the legislature and to have any hope of ousting Cooper.

But for Moore, who lost his GOP supermajorities in November, there’s no downside: If Cooper vetoes the bill, Republicans can run attack ads accusing him of being weak on crime.  If he doesn’t, progressives will likely savage him.

Cooper hasn’t taken a position on HB 370.

Subtract the politics, though, and immigrants’ rights advocates and legal experts say that, taken on its merits, HB 370 is a mess.  If it actually became law, it would both jeopardize public safety and put the state’s sheriffs in legal binds.

“Anytime you have that close cooperation between local law enforcement agencies and immigration authorities, it leads to that sort of erosion of trust, which makes communities less safe,” says Raul Pinto, a staff attorney with the North Carolina Justice Center’s Immigrant and Refugee Rights Project.  “So it’s really counter to the stated purpose of the bill.”

HB 370 would require sheriffs to honor ICE’s detainer requests, which ask local jails to hold people after they would otherwise be released or give ICE advanced notice before they’re released.  (Hall has said ICE was consulted in crafting the bill.)  Nothing in federal law requires local law enforcement to comply with detainers.  In fact, multiple courts have found that they are not mandatory.

HB 370 would take away sheriffs’ discretion, the North Carolina Sheriff’s Association said in opposing the legislation with “high priority,” an announcement that came five hours before the House passed it.

Sheriffs who oppose the bill say it’s not their job to enforce federal immigration laws.  They want all of their constituents, regardless of immigration status, to feel comfortable interacting with law enforcement. Indeed, immigrant advocates say HB 370 will discourage immigrants from reporting crimes, and this problem is particularly acute when it comes to domestic violence victims, whose safety may depend on calling 911.  (After President Trump issued an executive order stating that no one would be exempt from immigration enforcement, The Los Angeles Times found that reports of domestic violence among Latinx Californians declined significantly — by as much as 18 percent in San Francisco.)  Several state domestic violence organizations have come out against the bill.

If HB 370 becomes law, sheriffs would be exposed to lawsuits no matter what they do — either by those wrongfully detained, or by state residents, whom the bill empowers to sue sheriffs they believe aren’t honoring ICE detainers.

“I think it particularly puts sheriffs in an absolutely impossible position,” says Mark Fleming, associate director of litigation at the National Immigrant Justice Center.

When a person is fingerprinted at a jail, those fingerprints are generally sent to state authorities and the FBI to check for outstanding warrants.  Federal law mandates information sharing between the FBI and the Department of Homeland Security, which oversees ICE.  This is how detainers get lodged — a person gets booked into a jail, his information makes its way to ICE, and if ICE believes the person is subject to deportation, it asks the jail to keep the person in custody for up to forty-eight hours beyond his release date.

But Fleming says ICE often wrongly identifies people for removal.  The agency’s database has a 30 percent error rate, the NIJC has found.  Sometimes that error is a misspelled name, other times the person is not listed as having status when really she really does.  The ACLU found that in Miami, over two years, ICE issued detainers for 420 people who were U.S. citizens.

HB 370 says sheriffs don’t have to honor detainers for anyone who has proof of citizenship or lawful immigration status, but Fleming says not everyone has that proof, nor are local deputies equipped to navigate immigration law to decide if someone has legal status.  Approximately five million people in the U.S. have gained citizenship either because their parents were citizens when they were born or their parents naturalized while they were still minors, Fleming points out.  They aren’t required to obtain documents proving their citizenship.

Under HB 370, sheriffs could be held liable for complying with an ICE detainer request for a legal resident or citizen.  But those requests are problematic even if the target is undocumented.  Several federal courts have found that holding people on detainers violates their Fourth Amendment rights against unreasonable searches and seizures.  Others have found local officers don’t have the authority to hold people under detainers, and still others have ruled that detainers exceed ICE’s authority.

A lot of these arguments come back to the fact that detainers are not warrants.  Courts have ruled that holding people on a detainer after they would have otherwise been released — for example, by posting bond or having their charges dropped — constitutes a new arrest under the Fourth Amendment, and detainers don’t constitute probable cause for an arrest.

Detainers don’t come with judicial warrants — meaning a third party hasn’t signed off on ICE’s claim that a person is deportable.  Instead, they typically come with administrative warrants, in which only an ICE officer attests that someone is removable.  The Immigration and Naturalization Act says that only ICE can make arrests based on administrative warrants.  So when local law enforcement gets a detainer request, deputies are, in effect, getting a request from the feds to make a warrantless arrest based solely on the feds’ say-so.

The INA also says that in order to make a warrantless immigration arrest, there needs to be probable cause that someone is deportable and that he’s likely to escape before a warrant can be obtained for his arrest, which is tricky — and, in the opinion of an Illinois court, virtually impossible — for someone already locked up in a local jail, as the subjects of these detainers would be.

If there’s no determination that a person is likely to flee, the case doesn’t meet ICE’s standard for a warrantless arrest.  And the U.S. Supreme Court has said — in striking down parts of a 2010 Arizona law similar to HB 370 — that local cops can’t have broader immigration arrest authority than ICE does.

In short, Fleming says, ICE is asking local cops to make an arrest they can’t make — and that ICE isn’t empowered to make either.

In the Arizona case, the Supreme Court did let stand a controversial provision requiring law enforcement officials to determine the immigration status of anyone they stop or arrest who they suspect is removable.  North Carolina law currently requires jail administrators to attempt to verify the status of anyone charged with a felony; HB 370 broadens that mandate to all criminal offenses.

Several provisions in HB 370 are closely patterned after a 2017 Texas law known as SB 4, which, like HB 370, requires law enforcement to determine individuals’ immigration status and imposes steep financial penalties for not honoring detainers.  Last year, a federal appeals court upheld those aspects of the law, finding — contrary to most other court rulings — that detainers provide sufficient probable cause for detention.

Even if the Supreme Court eventually comes to the same conclusion, Fleming says HB 370 runs afoul of the state constitution.  North Carolina requires police to get a warrant signed by a judge in order to arrest someone.  If they make a warrantless arrest, a defendant must be brought before a judge to review whether probable cause exists.

“None of that happens in the context of immigration detainers and administrative warrants,” Fleming says.

Asked about the governor’s intentions, a spokesperson says Cooper has “serious concerns about taking away local authority and making it harder for local law enforcement to do their jobs,” but that he would “review any legislation that comes to his desk before making a decision.”

Whatever the political implications, Moises Serrano, the political director at El Pueblo, a Raleigh-based Latinx community organization, says that lawmakers designed HB 370 to send a message to the state’s immigrants: “They are not wanted here, that they’re not welcome here.  We’re trying to make the lives of immigrants so hard here that they will self-deport.  This is a tool of psychological warfare.”

Contact staff writer Sarah Willets by email at [email protected], by phone at 919-286-1972, or on Twitter @sarah_willets.