Politics & Government

North Carolina courts can’t get involved in ICE detentions, Mecklenburg sheriff says

In the past, Immigration and Customs Enforcement agents have detained or even deported people they shouldn’t have, including U.S. citizens. On Monday, the N.C. Supreme Court heard arguments in a case that could stop such people from going to North Carolina courts for help in the future.

Immigration policy was a key factor in sheriffs’ races across North Carolina in 2018. The state’s seven largest counties all elected more progressive sheriffs, many of whom promised to halt cooperation with ICE under Republican President Donald Trump. The case at the N.C. Supreme Court is from Charlotte, where former Sheriff Irwin Carmichael lost his 2018 re-election campaign in part based on his support for cooperating with ICE. In October 2017 his office detained two men who ICE said were suspected of being in the country without legal authorization.

But the men say Carmichael violated their rights by ignoring a court order to let them go, instead transferring them into ICE custody under questionable circumstances. Their lawyer said Monday that Carlos Chavez was transferred to ICE under a different name, and Luis Lopez (whose name is spelled Luiz in some court documents) was transferred using an illegitimate warrant.

A trial court ruled in favor of Chavez and Lopez. But on Nov. 6, 2018 — the same day as the elections that swept anti-ICE sheriffs into power in many of the state’s largest counties — the N.C. Court of Appeals overturned the verdict and ruled for Carmichael.

The ACLU called on the N.C. Supreme Court to overturn that Appeals Court decision, saying it affects people all over the state, not just Chavez and Lopez.

“If allowed to stand, this would be a disturbing precedent, potentially preventing state courts in North Carolina from overseeing the behavior of North Carolina police, even when they engage in clear misconduct or accommodate plainly unlawful detainer requests,” the ACLU wrote.

However, the Mecklenburg County Sheriffs Office — now led by Carmichael’s 2018 opponent, Garry McFadden — argued Monday that the Court of Appeals got it right. Only federal courts can be involved in immigration matters, said Sean Perrin, an outside lawyer for the sheriff’s office.

He said the mere fact the ICE is involved should mean, in this case and all others, that state courts can’t get involved.

The court’s seven justices peppered both Perrin and the lawyer for Chavez and Lopez, Sejal Zota, with detailed questions about jurisprudence and caselaw dating back to the 19th century, as well as less technical questions to get the lawyers to explain their positions.

“By your logic, the court doesn’t even have to figure out if it’s the right person?” Justice Anita Earls asked Perrin. “.... Because otherwise you’d have U.S. citizens deported.”

Perrin said only federal courts should be able to make those kinds of decisions.

“For a state court judge to judge this, to opine on, ‘That’s not him’ or ‘That’s not her,’ you have a state court getting into immigration issues,” Perrin said.

He cited Supreme Court cases that have struck down individual states’ laws on immigration, and said that if local governments were allowed to have their own immigration laws, there would be no coherent system.

Zota, of the Just Futures Law project and a former UNC School of Government expert on immigration law, said that’s true about laws. But she and her clients aren’t arguing about who can write laws, she said. They’re simply saying that when someone is sitting in a county jail in North Carolina facing an immigration detention request, that person should be able to ask the local judge to confirm whether the request is legitimate.

”It’s not enough for the sheriff to just come in and say we have a warrant,” Zota said. “The court needs to see those warrants.”

She said the judges wouldn’t be making political judgments on ICE and immigration policy, nor would they be creating new policies.

They would be checking, she said, “Is the accused the person named in the extradition papers? And two, are the extradition papers valid?”

Requiring sheriffs to comply with ICE?

Justice Mark Davis asked Perrin what would happen if a sheriff in North Carolina started illegally rounding people up on immigration charges. Perrin said again, no judge in the state would be able to stop that, and federal courts would have to step in.

In a bit of a twist, Perrin said the strict view on immigration policy that the sheriff’s office is taking in this case also coincides with why the current Mecklenburg sheriff, McFadden, opposes a recent bill passed by the legislature requiring sheriffs to cooperate with ICE.

That bill — which for now hasn’t become law, due to a veto by Democratic Gov. Roy Cooper — would require state court officials to be involved in the federal detention process, if it ever becomes law.

”We oppose HB 370 for the same reason,” Perrin said, referring to the ICE forced-cooperation bill, which was inspired largely due to Republican lawmakers’ frustration with McFadden and his anti-ICE counterpart in Wake County, Sheriff Gerald Baker.

“It’s also unconstitutional,” he said.

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Will Doran reports on North Carolina politics, with a focus on state employees and agencies. In 2016 he started The News & Observer’s fact-checking partnership, PolitiFact NC, and before that he reported on local governments around the Triangle. Contact him at wdoran@newsobserver.com or (919) 836-2858.