Mecklenburg County Sheriff McFadden speaks against House Bill 370
Should North Carolina sheriffs work with U.S. Immigration and Customs Enforcement?
Lately, it seems like everyone — from candidates for U.S. Congress to the state legislature and sheriffs themselves — has had an opinion. Many immigration advocates say that local law enforcement isn’t responsible for enforcing federal law. But sheriffs can and do work with ICE to make the agency’s job easier, to varying degrees.
There’s a broad — and complex — range of programs and policies that enable that collaboration: from 287(g) to immigration detainers and jail contracts. Below, we lay out the distinctions between these programs and explain how things have been changing in North Carolina.
What is 287(g) and how does it work?
287(g) is a voluntary agreement between ICE and a local sheriff’s office. Considered a “force multiplier,” it effectively allows some sheriff’s deputies to act as ICE agents inside county jails. ICE pays for the cost of those deputies’ training and technology, but deputies themselves are still paid by the local sheriff’s budget.
When inmates are booked into jail, deputies ask them for their nationality and country of birth. Under 287(g), depending on their answer, a trained deputy might check a federal database to determine if the inmate is in the country illegally.
If they are, the deputy consults with ICE, who can either let that inmate off the hook, or move to take custody of the inmate through an immigration detainer and start the deportation process.
What are immigration detainers and how do they work?
An ICE detainer, sometimes called an immigration detainer or immigration hold, is how ICE tries to take custody of inmates who are in local jails. It’s especially important when counties don’t participate in 287(g) or a similar partnership.
The process starts when ICE — or under 287(g), a sheriff’s deputy — gets word that someone in a jail may be here illegally. Oftentimes, the FBI receives fingerprints of inmates arrested by local law enforcement and then passes that data onto ICE agents, who check the inmates’ legal status.
Once ICE receives this information and determines an inmate may be here illegally, the agency can choose to issue a detainer — a request that the local jail hold an inmate for up to 48 hours longer than they would normally. (In counties with 287(g), that’s mostly done by a sheriff’s deputy.)
ICE can’t force an end to local criminal proceedings — it has to wait until after an inmate would be released normally — but these immigration holds keep someone in jail for longer, thus allowing ICE to pick them up and begin deportation proceedings.
What’s the debate on detainers?
Detainers aren’t necessarily issued for every inmate, and many advocates point out that they’re not criminal warrants.
For that reason, some sheriffs choose not to honor detainers: Inmates are released from jail as they would be normally, under conditions set by a judge or a magistrate, not the sheriff’s office.
And some sheriffs choose not to notify ICE when inmates with detainers are released. This policy is one in particular that ICE officials have taken issue with. Even if a sheriff won’t honor the detainer, the agency wants to be able to detain the inmate on their way out of jail.
Some lawmakers have argued that sheriffs are breaking federal law by not complying with ICE. However, most courts have ruled that detainer compliance in voluntary, while several federal judges have ruled that detainers violate due process by keeping inmates in jail longer than they would be there otherwise without probable cause. The circuit court overseeing North Carolina has not ruled one way or the other.
How did new sheriffs in NC’s biggest counties cut ties with ICE?
In 2018, six of North Carolina’s seven most populous counties elected new African American sheriffs, many of whom campaigned on limiting their collaboration with ICE in order to increase trust among immigrant communities.
The most drastic changes arguably happened in the state’s two biggest counties: Mecklenburg Sheriff Garry McFadden and Wake Sheriff Gerald Baker pulled out of 287(g), stopped honoring immigration detainers, and ended contracts that allowed ICE to keep inmates in their respective county jails. Both of them also stopped notifying ICE when an inmate with a detainer placed on them was being released from jail.
Under new sheriffs, Buncombe, Durham and Forsyth Counties also stopped honoring detainers. Of those, only Forsyth notifies ICE when releasing an inmate with an immigration detainer. Forsyth also ended its jail contract, though it was the only one of those three counties that had such a contract in 2018.
(Guilford also got a new sheriff, but the county’s policy has remained the same: Like Forsyth, it does not honor detainers but does notify ICE upon release.)
How did that change the landscape on immigration enforcement?
North Carolina was considered a pioneer for 287(g): For nearly a decade, from 2007 to 2016, the state had more counties participating than any other in the country.
Mecklenburg in particular became a model for the rest of the Southeast as one of the first counties to adopt the program. (After his tenure as Mecklenburg sheriff, Jim Pendergraph went on to work briefly for ICE, where he headed up the agency’s efforts to expand local collaboration.)
The 287(g) agreements, especially in populous Mecklenburg and Wake counties, were one of the most reliable — and easiest — ways that ICE’s Atlanta office took custody of unauthorized immigrants in Georgia and the Carolinas.
Only four counties in North Carolina still have 287(g): Cabarrus, Gaston, Henderson and Nash. Three of those four counties are the only ones in the state that have federal contracts with ICE that allow immigration agents to keep detainees in county jails.
How is ICE responding? What about the state legislature?
At a February press conference in Charlotte, ICE officials said that the push-back from sheriffs had forced them into a “new normal” of increased enforcement in the community: Because they no longer had access to the state’s largest county jails, they had no choice but to go out onto the streets for arrests — including more “collateral arrests” of unauthorized immigrants without pending charges or a criminal record.
In Raleigh, Republican state legislators have proposed a bill that would require sheriffs to honor detainers. HB 370 would require deputies to try to determine an inmate’s legal status, and would have a judicial official sign off on all detainers. They say it keeps dangerous immigrants who end up in jail from going back into the community.
After some flip-flopping, the N.C. Sheriff’s Association has backed the bill, though several Democrat big-city sheriffs — including McFadden and Baker — have spoken out against it. Like many activists, they say it’s overstepping on behalf of the legislature and likely to spur fear of law enforcement among immigrants, both with and without legal status.