North Carolina

Retooled immigration directive wins over NC sheriffs' group, but not McFadden

By GARY D. ROBERTSON, Associated Press
By GARY D. ROBERTSON, Associated Press

RALEIGH, N.C. — North Carolina Republicans have retooled legislation intended to counter decisions by some new sheriffs who refuse to comply with written requests by federal immigration agents to hold criminal defendants.

The amended measure eases somewhat a directive in the version that the House approved in April that would have forced sheriffs to fulfill Immigration and Customs Enforcement detainers upon people charged with state crimes. Those documents aren't arrest warrants, but if accepted, give ICE up to 48 hours to pick up suspects on the belief they are in the country unlawfully.

The changes won't be voted on until next week, but the new language won the support of the North Carolina Sheriffs' Association, which represents the county sheriffs as a whole. It had opposed the House version and had asked more time to find a compromise.

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The alternative heard by the Senate Judiciary Committee 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 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, the sheriff's association said.

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 association said in a release Wednesday.

But immigration and civil rights advocates said the changes don't ease the threat to immigrant communities in the state, particularly crime victims also in the country unlawfully who would be worried about coming forward to authorities for fear of deportation.

The new version "remains an extreme anti-immigrant proposal that would spread fear across communities, tear apart families, erode community trust in law enforcement and expose sheriffs and local governments to costly litigation," Alissa Ellis, an immigrant rights strategist for the North Carolina chapter of the American Civil Liberties Union, told lawmakers.

Immigrant groups have held several rallies against the House bill and urged Democratic Gov. Roy Cooper to promise to veto it. Cooper's office has said he had concerns about the House version. A Cooper spokesman said he would review the new legislation.

Sheriffs elected last year in urban Wake, Durham, Mecklenburg and Buncombe counties - all Democrats - announced they wouldn't honor the detainers. Accepting the detainers is voluntary, but sheriffs have cooperated with immigration officials for decades, bill supporters said.

"The sheriff's job is to protect the community and if some of these folks don't want to do that, then we here at the General Assembly will do what we need to do to make sure that those policies are stopped," said Rep. Destin Hall, a Caldwell County Republican and chief sponsor of the measure.

Durham County Sheriff Clarence Birkhead said after the meeting he was still opposed to the legislation. He said Durham County citizens elected him to "build relationships, to help combat crime and make our community safe," but the bill doesn't allow "me to do that any better."

The updated measure also took out House provisions that would subject sheriffs who don't comply with detainers or other state immigration laws to potential legal action with potentially large fines. But a sheriff could still be removed from office if he or she doesn't follow this law, the bill says.

Democrats on the Senate committee called the bill unnecessary and would still open up local governments and sheriffs to litigation.

Sheriffs already are required by state law to determine whether people charged with felonies or impaired driving and placed in their jails are lawful U.S. residents. The measure expands that to people charged with any criminal offense.

[ALSO READ: U.S. Attorney calls out sheriff after man in country illegally released twice]

The detainer issue has spilled over into a North Carolina congressional race. Ninth District Republican nominee Dan Bishop, who is also a state senator, has called on Mecklenburg County Sheriff Garry McFadden to resign for his immigration policy changes. At issue is a case where a suspect arrested twice on local charges last month related to domestic violence was released, then arrested by ICE soon after.

McFadden responded to the revised HB370 on Wednesday:

"As the Sheriff of our state’s largest county, I wrote to the North Carolina Sheriff’s Association in March and again in May 2019, expressing my opposition to the original and revised versions of HB370, which threaten to undermine the trust between law enforcement and our immigrant communities. This is a dangerous experiment in playing politics with our public safety.

"The most recently revised version of HB370 still mandates that each Sheriff’s Office detain individuals for Immigration and Customs Enforcement (ICE), setting the priorities for public safety in direct defiance of my constituents' demands. In November 2018, I was elected by the citizens of Mecklenburg County with a clear mandate to stop honoring voluntary ICE detainers and to end the 287(g) program.  My career record in law enforcement consistently demonstrates a commitment to making our communities safer, not dividing them.

"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. Just last month, I supported our colleagues at the North Carolina Sheriffs’ Association when they wrote: “The people of each county, as reflected by the decision of their elected sheriff, should retain the ability to decide which lawful method they will utilize in complying with existing federal and state law.” The implications of the revised HB370 go far beyond immigration. It is a move by the General Assembly to chip away at the Sheriff’s authority over how we operate our jails and instruct our deputies. At this moment, it is critical for public safety that law enforcement has the trust of all residents. In the revised HB370, community members living in mixed status families who are victims of crime, have witnessed crimes or otherwise would wish to access law enforcement services are likely to be less willing to interact with our departments. 

"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. It does not fix the Fourth Amendment concerns raised by voluntary ICE detainers. 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. For the record, I do not endorse the support of HB370 by the North Carolina Sheriffs’ Association."

Associated Press

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