North Carolina ICE bill revives questions about sheriffs' authority and due process for immigrants
When a non-citizen is arrested in North Carolina, the criminal charges — even if eventually dropped — can be life-altering. That can depend on the local jail’s relationship with U.S. Immigration and Customs Enforcement (ICE).
For years, North Carolina Republican lawmakers have pushed to make sheriffs comply with ICE’s voluntary detention requests. And with their supermajority in the General Assembly, they might get their wish this year with House Bill 10.
The policy could impact the authority of locally-elected sheriffs and due process for immigrants.
Uncertainty for immigrant families
There’s a nervous chatter that’s becoming more urgent among immigrant communities in North Carolina.
Glenda, an asylum-seeker from Honduras, refers to the topic as “that law” — otherwise known as HB10, a Republican-sponsored bill that would force the state’s sheriffs to work with federal immigration officials to facilitate deportations.
"Imagine if that law came here," Glenda said from the apartment she shares with her husband and children in Charlotte. "I think we would leave."
The proposal, the third of its kind in four years, passed the state House in late March. It hasn’t reached the Senate, but it’s expected to receive ample support there from the Republican supermajority and possibly some Democrats.
Listening to the news brings back hard memories for Glenda, a former agricultural worker in Honduras who says she fled gang violence with her family.
She was detained with one of her children in a federal immigration facility in south Texas when she first arrived in the United States five years ago.
She says border agents taunted her, called her heartless, and told her that her son, separated from her in another cell, would be given away to another family.
Her allegations were part of a class-action lawsuit against ICE. The settlement provided access to mental health services, but she says she still struggles with nightmares, anxiety and intense fear of law enforcement.
"It's like being traumatized again," she said. "If they picked me up and sent me back, what would happen to me? And the children I have here. What would happen to them?"
Glenda and her family are working to establish permanent immigration status. In the meantime, she's anxious about what a change in local immigration enforcement could mean.
Access to bond and due process
State law already mandates that jails determine the citizenship of people arrested for felony charges or driving under the influence. In Mecklenburg County, the sheriff’s office says that means asking everyone about their immigration status and place of birth during booking.
But the law doesn’t require jails to deny bond and keep people in custody at the request of ICE. Honoring the agency’s detainers is voluntary. That would be a change under HB10. Attorney Becca O’Neill, with Carolina Migrant Network, says the provision violates rights that date back to the Magna Carta.
“Can we hold someone in jail for no reason or must we give them a legal basis? If I am picked up on a DUI and I post bond ... but the jail won’t release me because they say they have an ICE hold on me, well, you have to look at the ICE hold,” O’Neill said. “Some attorneys would argue, and I agree, that ICE holds are unconstitutional, period.”
We contacted all 50 members of the North Carolina Senate about their opinions on HB10. We received written responses from nine of them — eight Democrats and one Republican. Their answers can be read here.
North Carolina Senate Minority Whip Jay Chaudhuri, a Democrat, asked to speak by phone. He said he worries about the implications of tougher immigration policies, like HB10, on communities of color.
“I think there's a larger theme that if we pass these bills that sends a message to these marginalized communities that they are not welcomed, or that they will be punished and detained. I worry what that does to the fabric of our communities,” Chaudhuri said. “I worry about that instilling fear in immigrant communities, and I worry about that insofar as what that does [to] the economic development environment here in the state.”
Chaudhuri says the fear over immigration enforcement isn’t limited to immigrants. He sees it in the motives of his Republican colleagues as well.
“There's a long history in our state, in our country that plays upon fear,” Chaudhuri said. “That fear is based on marginalizing. That fear is based on a playbook that gins up a lot of a lot of emotion.”
Republican lawmakers, like bill sponsor Destin Hall of Caldwell County, have pitched the bill as necessary to fight crime.
In a video called "Woke Sheriffs," where Hall promotes the bill, he says, “Many of these crimes are serious felonies like rape, arson, attempted murder, theft, assault and drug-related offenses.”
Hall didn’t respond to interview requests. ICE data indicates most of their detainers do not result from the crimes outlined by him.
In 2021 and 2020, for example, the leading charges were general traffic offenses, followed by driving under the influence.
At the center of the HB10 debate is the authority of the state’s democratically-elected sheriffs — in particular, sheriffs in the state’s largest population centers who don’t share the Republican vision for immigration enforcement.
“The sanctuary sheriffs are creating an environment where illegal aliens who have been charged with serious crimes in our state are protected from deportation,” Hall says in that same promotional video.
Hall doesn’t name any sheriffs in particular — in the video. But he does name a certain county — Mecklenburg, where Democratic Sheriff Garry McFadden is in his second term.
“When the people in this building say, ‘the woke sheriffs,’ we are woke,” McFadden said in March during a demonstration outside the General Assembly to oppose HB10. “We are very much woke. But they are scared to say, we are talking about the Black sheriffs. We are talking about the sheriffs that people elected in 2018 that didn't look like them, didn't speak like them, and definitely didn't act like them.”
A lot of the ICE cooperation debate can be traced back to that 2018 election when a record number of Black sheriffs took office in North Carolina. Many, like McFadden, won on the promise of ending ICE cooperation agreements established under a voluntary federal program called 287(g).
About 20 of North Carolina’s 100 counties have held one of these 287(g) agreements. That number includes partnerships with police and sheriff’s offices. ICE confirmed that 11 remain active, including in Gaston, Cabarrus and Lincoln counties.
“Whatever you like to do in your county, which your people elect you to do, that's what you should do,” McFadden said. “So, don't govern me on what you're doing in your county because I was elected by the people in Mecklenburg.”
Former 287(g) counties are also hubs of the state’s foreign-born and Latino populations. About 5%, or nearly half a million, of North Carolina residents are non-citizens — a population that includes more than 300,000 people born in Latin America and more than 100,000 from Asia. Forty percent of those non-citizens live in just two counties — Mecklenburg and Wake.
In many ways, HB10 would reestablish components of those 287(g) agreements, like compliance with ICE detainers. What it wouldn’t do is provide the law enforcement training or the funding that comes with an actual 287(g) agreement.
In a report next week, we’ll look more closely at the program and its legacy in Mecklenburg County. We’ll also examine the messaging around immigration, crime and public safety.
Eileen Rodriguez, formerly of WFDD and La Noticia, helped with reporting.