Starting on Dec. 1, all county sheriffs in North Carolina must cooperate with federal Immigration and Customs Enforcement under the Justice and Public Safety portion of House Bill 10.
The Republican-sponsored bill was signed into law after legislators voted to override the veto of Gov. Roy Cooper due to a Republican supermajority in the General Assembly.
The new law has drawn attention for also including $463.5 million to fund private school vouchers for this fiscal year.
The bill's immigration enforcement component has finally become law after years of Republican legislators proposing similar bills in 2019 and in 2021. Gov. Cooper vetoed both of them.
The law applies to individuals who are charged with crimes on or after Sunday, Dec. 1.
WUNC reviewed the new law’s text and interviewed law experts to fact-check the bill and answer common questions about what's proposed and how it will work.
The text of the bill can be read at this link or by looking up the bill on the legislature's website at ncleg.gov.
Have North Carolina sheriffs cooperated with immigration authorities before?
Yes — the vast majority of sheriffs in North Carolina’s 100 counties already voluntarily cooperate with requests from Immigration and Customs Enforcement, commonly known as ICE.
Law enforcement agencies like the sheriff’s offices that oversee county jails cooperate with ICE by helping them conduct “interior enforcement” of immigration laws based on what’s known as a detainer, or immigration hold.
Detainers are described by ICE as requests to a “law enforcement agency to notify ICE before a removable individual is released from custody and to maintain custody of the noncitizen for a brief period of time so that ICE can take custody of that person.” That time period can be up to 48 hours.
Detainers are meant to be targeted at noncitizens who have committed crimes here in the U.S., according to ICE.
State law already required sheriffs to determine the legal status of people arrested with felony or impaired driving charges, and to notify ICE if they can’t determine their statuses.
They haven’t been required to honor ICE detainers, however. Sheriffs are only mandated to honor them if they come with a warrant signed by a judge, which they typically don’t, according to law enforcement agencies and experts interviewed by WUNC.
Counties including Wake and Mecklenburg previously voluntarily collaborated with ICE through the 287(g) agreement, an opt-in program that facilitated communication between jails and immigration agents on the immigration status of those arrested.
From 2010 to 2018, the program resulted in several thousand immigrants removed from North Carolina, for both minor and serious charges.
Democratic sheriffs elected in 2018, including incumbent Mecklenburg Sheriff Garry McFadden and former Wake County Sheriff Gerald Baker, cut ties with the program.
Why was this law proposed?
It has been a GOP priority to pass such a bill into law since 2018, when a political battle over immigration enforcement began between Republican legislators and sheriffs in Democratic counties, including Wake, Durham, Orange, Mecklenburg, and Guilford.
Rep. Destin Hall, the bill’s lead sponsor and the next House Speaker, has stated that the law is meant to enforce cooperation with ICE in these counties where sheriffs either ended 287(g) agreements or began declining to ‘honor’ ICE detainer requests.
The sheriffs of the state’s most populous counties, like Wake, Mecklenburg, Orange, Durham and Guilford have declined to cooperate with ICE detainers. The sheriffs of those counties opposed HB10.
How will the law work?
The law is meant to remove undocumented immigrants accused of violent crimes by verifying their immigration status with ICE.
The bill would force all sheriffs in the state to hold any suspect with a detainer in their jail for up to an extra 48 hours in jail to allow time for ICE agents to come and take them into custody.
Here’s what the law says on how it will work:
- The immigration status of any immigrant charged with a felony or serious misdemeanor must be verified with ICE if jails can’t confirm legal status.
- Those charges include homicides; sex offenses; kidnapping; human trafficking; gang charges; felony assault or a class A1 misdemeanor such as child abuse; sexual battery; misdemeanor death by vehicle or assault with a deadly weapon.
- Law enforcement must obey detainers submitted for any person held in jail if ICE submits such a request for them, regardless of what kind of criminal charge they face.
A query to ICE to verify status could then trigger a detainer, but not in every single case, immigration experts told WUNC.
If an immigrant is issued a detainer, law enforcement is instructed to hold them in jail even if they are able to post bond or leave jail after seeing a magistrate.
Will all immigrants in North Carolina be under risk of deportation?
No. The law is meant only for immigrants without legal status who are processed through jail systems.
The law’s text implies that those at highest risk of being detained by ICE are undocumented immigrants who are charged with violent crimes.
These factors may make it more likely for an immigrant to be issued a detainer, according to Adriel Orozco, senior policy counsel at the American Immigration Council. That includes someone who is previously known to ICE due to reasons that include having an expired visa, a previous deportation order, a previous deportation, or an order to appear in immigration court.
Will the law impact undocumented immigrants charged with nonviolent or minor offenses?
The law’s text does not include minor or nonviolent offenses under the reasons for why law enforcement must contact ICE.
For their part, Republican legislators have previously said they're not going after people charged with minor offenses.
It's yet to be seen to what extent nonviolent offenders may be prioritized for removal in North Carolina under the new law.
However, immigration law experts argue that undocumented immigrants charged with nonviolent crimes such as a traffic misdemeanors, are still at some risk of removal.
The sharing of data between the federal government and local law enforcement already makes it easier for ICE to identify persons of interest in jails.
Raleigh Immigration Law attorney Beckie Moriello told WUNC that since ICE can issue detainers for a number of reasons beyond serious criminal charges and sheriffs must now accept those detainers, undocumented immigrants in “less immigrant-friendly” counties may be at heightened risk.
Moreover, Moriello said that she has represented clients who alleged they were racially profiled and arrested for minor charges, like driving without a license, in counties where sheriffs collaborated with ICE.
Another factor is the reelection of President Donald Trump, who has vowed mass deportations of millions of undocumented immigrants. The first Trump presidency prioritized the deportation of immigrants for least serious crimes.
The Biden administration’s resources for immigration enforcement have been focused at the border rather than in the interior of the country, according to ICE data.
Under President Trump’s previous terms, ICE issued at least 50% more detainers during the 2017 to 2020 fiscal years than under President Joe Biden’s administration, according to the Transactional Records Access Clearinghouse — although the number of detainers has continually risen under Biden.
The Trump administration also previously prioritized deporting undocumented immigrants for the least serious Level 3 misdemeanor convictions as opposed to Level 1 crime convictions. Trump had a proportion of 52% of detainers issued for Level 3 convictions than Biden at 45%, a TRAC analysis of ICE records show.
Will residents with legal status under Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS) be at risk of removal?
U.S. residents with DACA and TPS have temporary legal protections and work permits verifiable with U.S. Citizenship and Immigration Services, or USCIS.
It is unlikely for such individuals to be prioritized for removal if charged with a crime as opposed to an undocumented person without any temporary status. However, risk of removal is still possible depending on the severity of a given criminal charge and what ICE considers as a “deportable” offense, according to the American Immigration Council.
It’s important to note that both DACA and TPS are amnesty programs with uncertain futures. President Trump has sought to cancel them for years, which would eliminate legal status for over a million people in the U.S., including thousands in North Carolina.
Why is this law opposed by immigration advocates and some law enforcement officials?
House Bill 10 is seen as a major, statewide iteration of the controversial 287(g) program, which was criticized as “anti-immigrant” for facilitating the deportation of largely Latino and Mexican undocumented immigrants for nonviolent offenses, and for causing numerous instances of racial profiling, according to activists.
It reduced trust among Latino residents in local law enforcement and some sheriffs and police chiefs have said it discouraged immigrant residents from collaborating with them on crime investigations.
It was chastised by many in the community, at times incorrectly, as transforming local police and sheriff’s deputies into federal immigration agents.
Eleven sheriffs previously signed a public letter opposing the law when it was first proposed as a bill, adding “substantial administrative burdens to our jail staff, as well as our court system … with no compensation.”
These sheriffs also share concerns of an unconstitutional unreasonable seizure per the Fourth Amendment.
Will there be legal challenges against this law?
Governor-elect Josh Stein or incoming Attorney General Jeff Jackson have indicated their opposition to the bill’s immigration enforcement component, but haven’t publicly said whether they would play a role in any legal opposition to the bill.
But there could potentially be constitutional challenges if sheriffs hold people beyond the 48-hour period authorized in HB10, Orozco of the American Immigration Council told WUNC.
The law states that a jail administrator may only hold the person up to 48 hours after receiving the detainer request if the person is otherwise releasable and ICE authorities have not shown up to pick up the accused.
