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@example.com, by phone at 919-286-1972, or on Twitter @sarah_willets.