The dispute over ICE detainers in Charlotte goes national

Title 8, Section 287(g) of the Code of Federal Regulations, Performance of immigration officer functions by State officers and employees, empowers immigration officers authorized by the U.S. Department of Homeland Security (DHS) to make agreements with state and local law enforcement agencies permitting designated officers to perform certain federal immigration law enforcement functions, such as servicing detainers.

Immigration detainers are issued by Immigration and Customs Enforcement (ICE), which belongs to the DHS, to law enforcement agencies to provide notice of its intent to assume custody of individuals detained in federal, state, or local facilities. Normally, ICE asks for 48 hours’ notice prior to the individual’s release, and also asks that they be held for 48 hours after the scheduled release, so that agents will have time to arrive and take custody.

The termination of the 287(g) agreement in Charlotte, NC

A 287(g) agreement had been made with the Mecklenburg County sheriff's office in Charlotte, North Carolina. December 5, 2018 was Garry L. McFadden's first day in office as Mecklenburg County sheriff. On that day, Garry McFadden notified Immigration and Customs Enforcement that he was terminating the county’s 287(g) agreement.

In August, ICE published a very “impressive” list of deportable aliens facing serious criminal charges who had been released from Mecklenburg County custody after the 287(g) agreement was terminated. On October 25 an addendum to that list was posted.

Citing data complied by ICE Enforcement and Removal Operations, WBTV in Charlotte recently reported that nearly 500 illegal aliens were released from jails across North Carolina over a ten month period, despite immigration detainers that were filed against them.

Sheriff Garry McFadden has responded to accusations by declaring he needs to receive an arrest warrant before he can hold people in custody beyond their scheduled release date.

ICE detainers and the Fourth Amendment to the U.S. Constitution

Recent court rulings have favored suits brought against local jurisdictions that held aliens in “extended detention” in compliance with ICE detainer requests. The courts reasoned that arrests made by state and local authorities on civil immigration charges violates the guarantee against unreasonable seizures contained in the 4th Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment to the U.S. Constitution

Congress has authorized ICE to make arrests for civil immigration violations without an arrest warrant. This authority to make warrantless arrests, the courts argue, has not been extended to state and local authorities even when they act in compliance with an ICE detainer request. The absence of explicit state or federal statutory authorization for state or local agencies to enforce ICE detainers could potentially put them in violation the Fourth Amendment. Practically, state and local jurisdictions accept legal risk when they hold individuals in custody on the basis of ICE immigration detainers.

The Immigration Detainer Enforcement Act of 2019

Senators Thom Tillis (R-NC) and Chuck Grassley (R-IA) and Representatives Dan Bishop (R-NC-9), Ted Budd (R-NC-13), Richard Hudson (R-NC-8) have announced that they will formally introduce legislation called the Immigration Detainer Enforcement Act this week. The bill will clarify the Department of Homeland Security’s detainer authority and will clearly establish the authority of states and localities to maintain custody in cases in which an immigration detainer has been issued. The legislation will also incentivize cooperation between law enforcement agencies and the DHS through the reimbursement of certain costs arising from compliance with ICE detainer requests.

About a week ago, Senator Thom Tillis presided over a hearing of the Senate Judiciary Committee entitled Sanctuary Jurisdictions: The Impact on Public Safety and Victims. In his opening statement he addressed the refusal of sheriffs in North Carolina to honor ICE detainers and the serious problems that have resulted from their decisions.

Listen to his opening statement: