Immigration No.1 Issue For NC Voters

By Brianna Kraemer
Carolina Journal

North Carolinians’ top election issue headed in the 2024 presidential election is immigration, according to the latest Carolina Journal Poll. Sheriffs across the state, however, differ on how they interpret the laws surrounding illegal immigrants, particularly cooperating with detainer requests from Immigration and Customs Enforcement (ICE).

One-quarter of likely voters say immigration was the most important issue when voting in the primary election, according to the latest Carolina Journal poll. A 2023 study shows that nearly half a million illegal immigrants live in the Tar Heel State and cost North Carolina taxpayers approximately $3.14 billion every year.

But inconsistent ICE policies have left the door open for six North Carolina counties to avoid cooperating with US Immigration and Customs Enforcement (ICE). 

Immigration Detainer

ICE can request detainers against noncitizens who have been arrested for criminal activity. An immigration detainer asks local police departments to notify ICE when a criminal alien is going to be released from custody as ordered by a judge. Instead of releasing them, ICE can arrive and take custody for deportation in accordance with federal law.

Some sheriffs believe that an ICE detainer is a lawful document issued by a federal agency that allows law enforcement officers to hold people based on the detainer. Sheriffs who are honoring detainers believe they give them lawful authority under federal law. On the flip side, some sheriffs don’t believe they have the authority to hold the person in jail, despite the detainer request, and have thus been colloquially labeled ‘Sanctuary Counties.’ These sheriffs argue that an arrest warrant can only be issued by a federal magistrate or a federal judge. 

There has been no federal court case to reconcile the conflicting views definitively, and so the North Carolina Sheriffs’ Association has not taken a stance. Eddie Caldwell, Executive Vice President and General Counsel of the Sheriffs’ Association, told the Carolina Journal that a lawsuit will have to be brought to the courts in order for provide clarity on the ICE issue. 

“There are good people on both sides making arguments in good faith, but we will not have a definitive answer until a federal court issues an opinion on this issue,” Caldwell said. 

ICE Responds

ICE says detainers are a critical public safety tool because they focus enforcement resources on removable noncitizens who have been arrested for criminal activity. Most sheriffs across North Carolina fully cooperate with ICE, said Sean Ervin, the agency’s Atlanta Field Office Director for Enforcement and Removal, who oversees North Carolina.

“The Office of Enforcement and Removal Operations (ERO) in North Carolina enjoys very strong support from the vast majority of our state and local law enforcement partners,” Ervin commented. “That support is based on a shared commitment to national security and public safety,”

He did note, however, that a small number of jurisdictions do not work with ICE. According to the Center for Immigration Studies, which tracks sanctuary jurisdictions nationwide, six North Carolina counties have regulations or policies that obstruct immigration enforcement and shield criminals from ICE: Orange, Durham, Mecklenburg, Wake, Buncombe, and Forsyth.

“There are a very small number of sheriffs and municipalities who have passed legislation or made executive decisions to not cooperate with ERO,” said Ervin. “In many cases enough time has passed to realize this is not good public policy. I welcome an honest discussion with any sheriff who may want to reevaluate. We share a common goal.”

While only six counties, those with a policy of non-cooperation with ICE represent much of the state’s largest population centers. The actual policies can range significantly, from denying ICE access into their jails and not disclosing when an inmate will be released, to sometimes allowing them to talk with inmates, but not holding them for ICE to come pick up. 

Sheriffs Respond

Rockingham County Sheriff Sam Page fully cooperates with ICE and honors any detainers filed. 

“If we get bad guys off the street, and particularly if they’re illegal, then removing them from the country at a certain time is the safest way and the best way to protect America and American people – and also it protects the immigrant population,” said Page.

As a member of the Border Security Committee with the National Sheriffs, Page was saddened by the recent murder of Laken Riley by an illegal immigrant in Georgia, asserting that it was completely preventable. The Venezuelan migrant charged in the murder was first apprehended at the border, but was released. He made his way to New York, where he was again arrested and released, before moving down to Athens, Georgia, where he is alleged to have murdered Riley. 

Page thinks the policies under former President Donald Trump were working, including Title 42 and the Remain in Mexico policy, which required asylum seekers at the US border to wait in Mexico while their cases were processed. He fears that if officers don’t honor ICE detainers, allowing the undocumented criminals back into the community, they will likely re-offend and, oftentimes, victimize the immigrant population. 

“I’m seeing the drugs,” Page added. “I’ve seen the violence. And we know that these persons will come where they feel like they have safety, but, at the end of the day, we better wake up in our counties, and particularly sanctuary counties… It’s estimated, according to Border Patrol, over 800,000 to a million persons estimated have gotten through our borders undetected. We don’t know who they are and they’re going across the nation. And what I worry about is a future 9/11. Not if, but when.” 

On the contrary, Mecklenburg County Sheriff Gary McFadden is openly against honoring detainers from ICE, arguing they are unlawful and force a police department to bypass a judge’s order. 

In an interview with the Carolina Journal, McFadden explained that he legally can’t consider his city a sanctuary jurisdiction under state law, but still he protests a detainer is not authorized by any judicial official. He referred to General Statute 162.62, which states that nothing should prevent a person from being released if they meet all the conditions of their bond. 

“In other words, when they meet all the conditions of their bonds, they are supposed to be released,” McFadden said, adding that they are not a federal inmate. “Now ICE says you should hold them. I said, ‘I can’t because a judge ordered me to release them.’ So if I retained them inside the detention center, I could be sued.”

The judge makes a determination, and McFadden releases any individual who meets all of the criteria for their release. Domestic child molesters, murderers, and other dangerous criminals are let out of jail every day on bond. By law they are allowed out, so McFadden questions what the difference is between releasing an undocumented alien and a citizen, who both will be expected to appear in court. 

“The detainer doesn’t supersede a judge’s order, magistrate judge or court judge. So I don’t know what they’re doing. I know that I’m not holding them,” he said. “I am following the law. Not a policy, not civil law. I’m following criminal law.”

Policy Discrepancies 

McFadden believes ICE needs to make the proper changes at the federal level, but he also notes that his department has a policy to cooperate with ICE inside his detention center and inside his courthouse. 

Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, noted that sanctuary jurisdictions will almost never refer to themselves as such.

“They will contend that they will comply with ICE if ICE comes to them with a judicial warrant, but there are no judicial warrants in immigration enforcement because immigration is a civil matter, not a criminal,” explained Arthur.

A distinct disparity presents itself between Arthur, who says no judicial warrant is required because immigration is a civil matter, and McFadden, who says it’s a criminal matter.

“A detainer is not a criminal document. It’s a civil document. And so I don’t know whose authority you are holding them on,” McFadden said.

Both mentioned the taxpayer costs associated with keeping criminals in detention for additional time, such as costs to keep them in jail and to go to court. 

“The most critical issue with respect to any crime that’s carried out by somebody who is removable from the United States and shouldn’t be here is that that crime is avoidable,” said Arthur. “It never had to happen if the offender wasn’t there. It really doesn’t make sense. It doesn’t protect anybody but criminals. It costs localities money.”

As the North Carolina Sheriffs’ Association said, the issue will only be cleared up definitively when a lawsuit is filed and a federal court issues an opinion on the matter. 

North Carolina Republican Sen. Thom Tillis introduced two bills Tuesday geared toward issues caused by illegal immigration. Stateside, the North Carolina General Assembly could force the issue: House Bill 10, which would mandate all sheriffs cooperate with ICE, passed the House last March and could make its way through the Senate after the short session begins in April.