Here's What's Different About The New NC Bill That Would Make Sheriffs Cooperate With ICE

Mar 24, 2021

After watching North Carolina Gov. Roy Cooper veto House Bill 370 in 2019, state Sen. Chuck Edwards introduced legislation this session revisiting the earlier bill. It’s called Require Cooperation with ICE 2.0.

The legislation would force local law enforcement agencies to search the immigration status of anyone booked into jails for a criminal charge. If they can’t do the search, law enforcement agencies would have to call Immigration and Customs Enforcement to do it. If the person in jail is in the country illegally, under a detainer, they would be held in custody for 48 hours or until ICE proceeds.

Right now, compliance with such detainers is voluntary.

Eddie Caldwell from the North Carolina Sheriff’s Association was at the state Senate committee meeting on March 9 where the bill was discussed. He told lawmakers that his organization held a vote on the 2019 legislation and found a majority of its members supported it.

“Senate Bill 101 of this session, with ... today’s amendment, is substantially similar to House 370 from 2019," Caldwell said. "Therefore, the association’s position remains the same."

Mecklenburg County Sheriff Garry McFadden joined the Senate committee meeting via Zoom. He told lawmakers that using their offices’ resources to enforce immigration laws wasn’t their job.

“It’s gonna cause a problem for a sheriff’s budget," McFadden said. "So, in other words, it is called defunding law enforcement."

McFadden also said such legislation would bring fear to some members of the community and make some people hesitant to cooperate with the police.

The Immigrants' Rights Alliance of North Carolina is also against the bill The new coalition includes at least three Charlotte-based immigrant rights groups: Comunidad Colectiva, the Hispanic Federation and SEAC Village.

Senate Bill 101 is the latest in a string of bills Republican lawmakers have tried to pass requiring collaboration with ICE. But UNC School of Law professor Rick Su says SB 101 is different from past bills.

“What seems to be changing a little bit is whether or not there is a punishment that would be imposed on the officials that don't comply with this particular order," Su said.

In the bill-making process, lawmakers got rid of a section that would make it a Class 3 misdemeanor if a local official refuses to comply. Su says what’s also different from past bills is "the circumstances in which they may have to do a particular check of their immigration status or contact immigration authorities.”

Su noted that backers of this bill are promoting it as “less aggressive” than the one vetoed by the governor in 2019.

“They did add some felony provisions with regards to serious crimes, but under my reading, that doesn't apply to the main part of this bill, which is with regard to the mandate to obey detainer requests,” he added.

This means that if the federal government submits a detainer request for someone, regardless of their offense, law enforcement would have to hold them for ICE for 48 hours.

Su says this current bill is also different from the 2019 one because only the federal government would decide if a crime calls for a legal status search.

“If the current system now allows sheriffs to make certain discretionary decisions. You know, 'This person is charged with a serious crime,' or, 'I think this charge might actually stick or lead to conviction, and therefore I'm going to keep this person for 48 hours,' and, 'This person is not,'" Su said. "This bill takes that discretion away.”

What’s key, according to Su, is how much liability is placed on local law enforcement for complying with the law in case of a mistake at the federal level.

“Nothing in this bill changes the fact that if the federal government makes a mistake and, let's say, issues a detainer against a U.S. citizen, that the sheriff ultimately would still be liable and on the line," he said.

Su says that North Carolina has historically been on the radar for taking the lead in regard to immigration cooperation bills. In fact, House Bill 62, which punishes local officials for violating North Carolina’s anti-sanctuary law, advanced the same day as SB 101.

Senate Bill 101 passed in the Senate earlier this month. It now has to pass in the House before heading to the governor’s desk. Cooper’s office declined to say whether he would veto the bill but called it "unconstitutional."

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