Republicans in the North Carolina House of Representatives filed a bill Thursday that would require local law enforcement to honor detainer requests from Immigration and Customs Enforcement—even though the requests are voluntary and multiple courts have found them unconstitutional.
Legislators said House Bill 370 was filed in response to a growing number of local sheriffs who are refusing to cooperate with ICE, either via its 287(g) program, which deputizes local officers to carry out some immigration enforcement duties, or by honoring detainer requests, also known as ICE holds.
ICE detainer requests are just that—requests—from ICE that a local jail continue to hold people already in its custody for up to forty-eight hours beyond the time they would have otherwise been released so that ICE can take custody of them.
Even ICE acknowledges on the form itself that a detainer request is merely a request.
What’s more, multiple courts have found that detainers amount to a new arrest requiring probable cause under the Fourth Amendment, and that the administrative warrants that typically come with them—which merely require an immigration officer, rather than a judge, to attest that someone is deportable—are not sufficient proof that probable cause exists to continue to hold people when they otherwise should have been released.
The bill—sponsored by Representatives Destin Hall, Brenden Jones, Jason Saine, and Carson Smith (a retired sheriff)—makes no mention of warrants or probable cause. It does make exceptions for people who are reporting a crime, who are the victims of a crime, who witnessed a crime, and who have “provided proof” of U.S. citizenship or lawful immigration status.
The proposal comes after a spate of ICE raids in February in which agents arrested more than two hundred people across North Carolina. In a press conference, an ICE official blamed the stepped-up enforcement on local sheriffs—specifically calling out Wake, Durham, Orange, and Mecklenburg Counties—not cooperative with ICE and called the increased activity the “new normal.”
Last year, Wake, Mecklenburg, and Durham Counties elected sheriffs who pledged not cooperate with ICE, ousting predecessors who had. Wake and Mecklenburg subsequently ended participation in the 287(g) program. Durham’s sheriff issued a directive that detainers not be honored unless accompanied by a judicial warrant or order for arrest (the Durham jail had previously honored them routinely). That has been the policy in Orange County since 2014. Neither Durham nor Orange County is part of 287(g).
“Several sheriffs in North Carolina aren’t communicating with their fellow law enforcement officers about the detention of illegal immigrants accused of crimes,” Representative Hall said. “These sheriffs are putting politics ahead of public safety. Their failure to cooperate with immigration officials only puts more innocent people and officers in harm’s way.”
The bill would also block local jurisdictions from prohibiting federal law enforcement officials “from entering and conducting enforcement activities” in local jails.
“If the law-abiding citizens of North Carolina are subject to enforcement of state and federal law, then illegal immigrants detained for committing crimes should be too,” said House Speaker Tim Moore, who signed on as a cosponsor.
Under the proposed legislation, private citizens who live in counties they believe aren’t complying with ICE could seek an injunction to force the county to do so. The bill would direct courts to impose monetary penalties for not complying.
