Some sheriffs say NC bill requiring cooperation with ICE undercuts their authority

House Bill 370 would require police and sheriffs to check everyone they arrest against the federal immigration database and, if requested, to hold them on detainer for U.S. Immigration and Customs Enforcement.

"ICE has a job to do. We are a nation of laws. We have immigration laws. We have a border," Rep. Destin Hall, R-Caldwell, told members of the Senate Judiciary committee. "You may disagree with some of those laws, but they're there."

Sheriffs in Wake, Durham, Orange and Mecklenburg counties have cut ties with ICE in recent months by ending participation in the 287(g) program that allows local law enforcement to check the immigration status of people arrested and by refusing to honor ICE detainers to hold people in jail for immigration agents, even if they had finished serving their sentences or had posted bond.

"A sheriff's job is to protect the community, and if some of these folks don't want to do that, we here at the General Assembly will do what we need to do to make sure those policies are stopped," Hall said after citing cases of people in the country illegally committing crimes after being released from jail.

A revised version of the bill sets out a process whereby a judge or magistrate would order whether an inmate should be held on the detainer request, based on whether the inmate is the same person identified in the request. The inmate could be held for up to 96 hours – double the current 48 hours for a detainer – after a prisoner is otherwise qualified for released based on bond.

The 96-hour window aligns with the maximum time period before a criminal defendant must go before a judge for the first time, according to the North Carolina Sheriffs' Association, which now backs the bill after opposing an earlier version.

The Senate version "provides an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities," the sheriffs' association said in a news release Wednesday.

The bill also would allow a judge to remove any law enforcement officer or sheriff from office for failing to cooperate with immigration officials.

"Frankly, I don't believe the oath that a sheriff takes includes the flexibility to follow the law or not," said Sen. Chuck Edwards, R-Henderson.

ICE detainers are voluntary, not mandatory, and some courts have said they violate the Constitution.

Durham County Sheriff Clarence Birkhead was elected, in part, on a promise not to cooperate with ICE, and he said Wednesday that his community is opposed to detainers.

"To me, they're unconstitutional," Birkhead said. "There is nothing in state law that mandates honoring ICE detainers. The federal government has not changed the law to say I have to honor ICE detainers."

Birkhead said his community is safer when his deputies can form good relationships with immigrant communities and help victims of crime that might otherwise not trust law enforcement.

"If sheriffs of every county are forced to become de facto ICE agents, crime victims will be further deterred from reporting crimes," agreed Sejal Zota, legal director of the National Immigration Project of the National Lawyers Guild. "It turns any police interaction into an immigration status check and cause for deportation."

Wake County Sheriff Gerald Baker held a news conference Thursday morning to state his position on the bill.

"We still stand right where we are," Baker said, six months after ending the county's participation in the 287(g) program. "We haven't budged. We're not going to move. We're here trying to make sure that our communities and everyone feels comfortable talking and calling us."

Rick Brown, chief legal adviser for the Wake County Sheriff's Office, said the agency cooperates with ICE when required, but he called House Bill 370 an overreach by state lawmakers.

Like Birkhead, Baker made withdrawing from 287(g) part of the platform that helped him defeat longtime Wake County Sheriff Donnie Harrison last fall.

"It's unfortunate that the legislature sees fit to make this political," Brown said. "State legislators have chosen, in essence, to nullify the vote of the citizens of Wake County."

Mecklenburg County Sheriff Garry McFadden said the measure is the latest effort by state lawmakers to chip away at the authority of elected sheriffs.

"To be clear, I recognize that other sheriffs and communities may have differing views and policies about immigration. However, we all can agree that HB370 usurps the power of every sheriff and local community to set their own policies," McFadden said in a statement.

"I fear that HB370 will result in our communities becoming less safe. The revised bill could result in costly requirements and lawsuits for our departments," he added. "New provisions in the most recent version of the bill, which include doubling the detention time of ICE detainers and involving state judges/magistrates in determinations of federal immigration matters, have the potential to invite additional litigation."

The full Senate could hear the bill as early as next week, and immigrant advocates are already calling on Gov. Roy Cooper to veto it once it emerges from the General Assembly.