Bill requiring sheriffs to cooperate with ICE detainers passes in NC House, heads to Cooper’s desk

North Carolina news

RALEIGH, N.C. (WNCN) — State representatives Tuesday voted 62-53 in favor of House Bill 370, requiring local sheriffs to cooperate with ICE detainers.

The bill will now head to Governor Roy Cooper’s desk, which he’s recently expressed concerns about.

When asked, Cooper urged sheriffs to make a decision and figure out how resources will be deployed.

Back in June, Cooper called the bill unconstitutional and said it was “using fear to divide us.”

House Bill 370 requires that law enforcement check everyone they arrest in the federal immigration database and if flagged, hold them on a detainer for up to 48 hours.

The bill is a response to newly elected sheriffs, including in Wake and Durham counties who vowed not to cooperate with ICE. 

Republicans who sponsored the bill brought up a recent case in Mecklenburg County involving Oscar Pacheco-Leonardo, who was in the country illegally when he was arrested for first-degree rape. He was released from jail after posting bond, which had been set at $100,000. ICE said Sheriff Garry McFadden did not honor a request to hold that man or inform ICE he had been released.

“A sheriff’s job is to do everything that they possibly can to protect the citizens and their community,” said Rep. Destin Hall (R-Caldwell). “We are a nation of laws. We are a nation with a border, despite what some may wish, and ICE is going to continue to enforce those laws.”

Sheriff McFadden said the man got released after “fulfilling his court-ordered terms and conditions of release,” which included paying his bond.

Rep. Marcia Morey (D-Durham) said the issue in that case could have been that the bond was set too low, and that it would be unconstitutional for sheriffs to hold suspects beyond what a court has required.

“This is unnecessary. It is draconian and will affect and rip apart families across this state,” she said.

While Gov. Cooper raised concerns about the bill, he wouldn’t explicitly say whether he would veto it on Tuesday. The bill did not pass the Senate or House by large enough margins to override the veto.

The Orange County Sheriff’s Office released the following statement:

The title of House Bill 370, “Require Cooperation with Immigration Detainers and Administrative Warrants,” is misleading. The media has provided an alternative title for HB 370, “Force Sheriffs to Cooperate with ICE (Immigrations and Customs Enforcement).” Both titles are offensive and inaccurate by implying that Sheriffs in North Carolina are not executing their sworn duties to work each and every day to hold the public trust and protect the rule of law. Lost in both titles is the fact that an ICE detainer is a request, not a law or other requirement. Also lost is that cooperation, by its very definition, is a voluntary act. Cooperation cannot be forced, nor can it be mandated.

The Orange County Sheriff’s Office has always complied with local, state and federal law. In addition, we cooperate with local, state, and federal enforcement agencies when working together ensures the safety of those we are entrusted to protect. Mutual aid agreements are one example of this cooperation. Interagency task forces are another. These are voluntary working relationships where the whole is greater than the sum of the parts.

The main substantive change under the proposed legislation would strip Sheriffs of their authority to decide whether to honor detainer requests. In my opinion, there are four major flaws in the proposed legislation set out in House Bill 370.

1. Being in the United States without proper documentation is NOT a criminal violation of state law. It is a civil violation of federal immigration law. Asking a North Carolina Judicial Official to issue an Order to hold anyone for any length of time for a civil violation of federal law violates a person’s constitutional rights. (Yes, people here without proper documentation receive protection under the US Constitution.)

2. Sheriffs who willfully violate someone’s constitutional rights are subject to liability, as are the Sheriff’s Office and the County.

3. Forcing a Sheriff to honor a detainer request erodes the Office of Sheriff, opening the door for the General Assembly to weaken further the authority and discretion vested in that Office.

4. A mechanism already exists to accomplish ICE’s objective. Obtaining a detainer or warrant signed by a federal judicial official provides the necessary authority for a Sheriff to continue to hold a person in custody. Immigration issues are a federal matter, best left to federal authorities. The General Assembly should not require state judicial officials or North Carolina Sheriffs to become involved in federal immigration enforcement.

We keep individuals in our detention center when we are required to do so by the law. Keeping someone incarcerated because another agency, in this case ICE, requests us to do so does not give us legal authority. Keeping a person without legal authority is a violation of a person’s constitutional rights. It is not a matter of cooperation.

It would, however, be incorrect, to say the OCSO does not work with ICE. We do. The role of ICE is to enforce the immigration laws of the United States and to investigate criminal and terrorist activity of transnational organizations and aliens within the United States. Pursuant to North Carolina General Statutes § 162-62, we are required to inquire about the immigration status of anyone arrested for a Felony or DWI and we comply with this requirement. This inquiry occurs automatically when we submit the person’s fingerprints at the time of arrest.

If the person entered the United States illegally and is in fact undocumented, ICE may issue a Detainer and Administrative Warrant requesting that he/she be held for a period of time. The detainer request is not an order issued by a federal judicial officer; it is merely a request which can be honored or not at the discretion of a sheriff. For the reasons explained above, we do not honor detainer requests. However, we do cooperate with ICE in several ways. When we receive a detainer request, we respond to ICE with the inmate’s release date, if it is known. In cases where we do not know the release date (for example when an inmate is awaiting trial), we indicate the date as unknown in our response.

If ICE does not come before the expiration of the period during which we have the legal authority to hold someone in custody, the 4th Amendment of the US Constitution, which was made applicable to the states by the 14th Amendment, requires the person’s release. If however, ICE is on hand to pick the person up when he or she is released from the detention center, ICE has the authority to take the person into their custody.

We will continue to operate as we have and enforce laws as written.

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