Should it be Clearly Legal for State & Local Law Enforcement to Comply with ICE Detainer Requests? (S. 2739)

“I think most people realize the common sense of a policy that says if you have someone in jail who has committed a serious crime — not simply the crime of being illegally present, not simply having a removal order — but a serious crime, then please let us work with (Immigration and Customs Enforcement) so we can safely transfer them to an ICE facility and keep our community safer.”

Sen. Tillis argues that sanctuary city policies are “reckless,” and that they endanger states’ residents. He says that those subject to ICE detainer requests “are people who have removal orders issued against them. These are not people who are in jail for being illegally present. They’re in jail because they committed a crime after they violated our border laws.” He frames the issue with a rhetorical question: 

“Is it fair to hold an alleged murderer, heroin trafficker, someone who’s been accused of taking indecent liberties with a child for a 48 hour period whose illegally in the country and is a deportable illegal alien? Yeah, I think that’s fair.”

Original cosponsor Sen. Marsha Blackburn (R-TN) adds: 

“Sanctuary jurisdictions provide havens for illegal aliens and put the safety of our citizens at risk… We need to incentivize local law enforcement to work with – not against – our federal agencies to secure our border.”

House sponsor Rep. Dan Bishop (R-NC) says: 

“Releasing dangerous criminals does not build 'trust' with the immigrant community – it puts their lives in danger. While a few North Carolina sheriffs believe their actions to be compassionate, I doubt the victims of violent crime such as beatings, rape and murder feel the same way. This bill removes the fig leaf of legal excuses that rogue sheriffs have used to rationalize their brutal and inhumane policies and I am proud to work with my colleagues on this critical piece of legislation.”

The Mecklenburg County Sheriff’s Office, whose sheriff, Garry McFadden, hasn’t honored detainer requests, saying he needs federal agencies to obtain arrest warrants for him to keep people in custody, responded to this bill’s introduction in a press release: 

“Sheriff McFadden’s position on this issue is well documented and he remains steadfast in his policy not to honor immigration detainers. As it pertains to the proposed legislation; Sheriff McFadden has maintained that the Mecklenburg County Sheriff’s Office will always follow the law and unless the law changes, Sheriff McFadden will continue to exercise the constitutional authority of his elected Office and will not honor immigration detainers.”

Sheriff McFadden says that once a suspect meets bail, they’re free to leave, and that holding them in jail would be illegal, even with an ICE detainer in place. McFadden’s office has also accused lawmakers of “strong-arming” and “bullying” sheriffs on the issue of ICE detainers. In a statement over the summer, Sheriff McFadden’s office says that attempts to force sheriffs to comply with ICE detainers would “not only negatively impact public safety in Mecklenburg County… [but also] significantly erode the authority of all duly elected Sheriffs.”

Action NC opposes this bill. It argues that sheriffs should work to ensure communities’ safety, not work as immigration agents. Héctor Vaca, the organization’s Training/Organizing Director, says:

“What [this bill is] proposing is that our sheriff is to ignore the law. He is not a judge. The role of a sheriff is to enforce the law and to let people out when there time is up in jail. If the judge says he can go free, that’s the judges decision.”

This legislation has seven Republican Senate cosponsors. Its House companion, sponsored by Rep. Dan Bishop (R-NC), has three Republican cosponsors.

Of Note: An Immigration and Customs Enforcement (ICE) detainer is a request for local law enforcement to hold individuals that they believe aren’t lawful citizens in jail or prison for up to 48 hours until ICE can take custody and begin deportation proceedings. Individuals targeted by detainer requests are typically otherwise eligible for release from jail or prison.

Detainer requests aren’t judicial orders signed by a court official or arrest warrants that require a finding of probable cause. Because they’re requests, local law enforcement can choose whether or not to enforce them. Recently, some states and localities have implemented sanctuary policies and refused to honor ICE detainer requests and chosen to only work with ICE as much as the law requires. 

According to Sen. Tillis’ office, much of this lack of cooperation has been fueled by federal court decisions questioning state and local law enforcement’s authority to maintain custody of an unauthorized immigrant who is the subject of an immigration detainer beyond the time they would otherwise have been released. In these rulings, appeals courts have ruled that detainers violate Fourth Amendment protections. Additionally, some state and local law enforcement agencies declining to cooperate with immigration detainers have cited fiscal concerns.  

According to WBTV, data shows that nearly 500 unauthorized immigrants were released from North Carolina jails despite ICE detainer requests. These individuals had charges that included sex offenses, kidnapping, arson, and homicide.

Media:

• Sponsoring Sen. Thom Tillis (R-NC) Press Release
  
• Sponsoring Sen. Thom Tillis (R-NC) Bill Summary
  
• House Cosponsor Rep. Ted Budd (R-NC) Press Release
  
• WBTV
  
• FOX 17 Nashville
  
• North State Journal
  
• Mountain Xpress
  
• The Progressive Pulse
  
• Countable - Justice for Victims of Sanctuary Cities Act (Related Bill)