A controversial bill that would force sheriffs to detain undocumented immigrants or face removal from office is expected to pass Republican-controlled Senate Monday.

After that, it will be up to Governor Cooper to decide its fate. While an earlier version of the bill cleared the House 63–51 in April, it did not do so with enough votes to override a veto.  

“Unless Governor Cooper wants to side with Trump and that’s the legacy he wants to leave, then he’d better veto that bill,” says Viridiana Martinez of Alerta Migratoria, an immigrant rights group.

The governor’s office did not return several requests for comment.

The bill will require sheriffs to honor ICE’s detainer requests—which ask local jails to hold people after they would otherwise be released—though nothing in federal law requires local law enforcement to comply with detainers and multiple courts have found that they are not mandatory. 

The N.C. Sheriffs Association opposed the original version of the bill, which passed the House, but endorsed the Senate’s rewrite. 

At a hearing earlier this week, Republican state representative Brenden Jones of Columbus County said the bill was necessary to force uncooperative sheriffs—including Wake County’s Gerald Baker, Durham’s Clarence Birkhead, and Mecklenberg’s Garry McFadden, all African Americans elected last year on promises not to do ICE’s bidding—to toe the line.

“Do you see a hundred sheriffs back here? Must be a pretty good idea then,” Jones chided during a Senate Judiciary Committee meeting, prompting Baker and McFadden to abruptly get up and leave. “This is commonsense legislation that has been thrust upon us for a few that refuse to do what they are supposed to do.”

Baker—who campaigned on ending a 287(g) partnership between ICE and local law enforcement—announced last week that he still opposes H.B 370 despite the Sheriffs Association’s change of heart. McFadden and Birkhead have made similar announcements.

“We chose not to participate in [287(g)],” Baker said at a recent press conference. “We chose to do what we can to strengthen our communities and serve every person who resides in our community. We still stand right where we are with that.”

These sheriffs contend that being forced to honor ICE detainers will break down trust between law enforcement and immigrant communities, discouraging immigrants from reporting crimes—particularly domestic violence. In addition, immigrant advocates point out, ICE often wrongly identifies people for removal; the agency has a 30 percent error rate, according to the National Immigrant Justice Center, meaning that U.S. citizens and legal residents can be held in jail without a court order after they would have otherwise been released over something as simple as a misspelled name in a faraway database.

And while HB 370 says sheriffs don’t have to honor detainers for anyone who has proof of citizenship or lawful immigration status, the roughly five million people who have gained citizenship because their parents were citizens when they were born or their parents naturalized while they were minors aren’t required to have that paperwork. In other words, HB 370 could make sheriffs liable for complying with an ICE detainer for a legal resident and jailing that person illegally without a court order. 

Senator Wiley Nickel, a freshman Wake County Democrat, says he expects the bill to pass the Senate, where Republicans control twenty-nine of fifty seats. But he expects the Democratic caucus to stick together in opposition to HB 370, which he calls “political punishment” and a “racist” measure designed to punish the state’s black sheriffs. 

“I think you are going to see hopefully unanimous opposition from all the Democrats in the Senate,” Nickel says. “I, for one, will be fighting it tooth and nail and will be doing everything I can to point light on what a horrible bill it is for the state and how it will make our communities much less safe.”

Should the bill pass the Senate, Nickel says, “I would expect Governor Cooper to veto it.”

Representative Deb Butler, a Democrat from Brunswick and New Hanover Counties, says the bill is “an affront to the North Carolina voters,” who elected these sheriffs. She also says she’s confident Cooper will exercise his veto.

“I suspect that [Cooper] hates this usurpation of sheriff police power,” Butler says.

“To be honest with you, Cooper doesn’t have a history of being pro-immigrant,” says Martinez of Alerta Migratoria. “He has a history of being the opposite. We’re just hoping that the fact that these sheriffs, that this was an election victory, sends a message to Roy Cooper and that he realizes there’s more at stake this time and people are watching. It’s not just immigrants but our allies.”

Of course, for the state’s Republicans, getting Roy Cooper to veto the bill—and look soft on illegal immigration, especially now that the Sheriffs Association is no longer giving him cover—is a political victory in itself headed into an election year where Donald Trump will top the ballot and the GOP is eager to stoke its base.

Indeed, that was likely the entire point of this cynical exercise

Contact staff writer Leigh Tauss at ltauss@indyweek.com. 

Support independent local journalism. Join the INDY Press Club to help us keep fearless watchdog reporting and essential arts and culture coverage viable in the Triangle.