Fact Check: Are Sheriffs Who Ignore ICE Requests Breaking The Law?

Jul 17, 2019

It's our weekly fact check of North Carolina politics. This week we look at a bill in the General Assembly that would require sheriffs to work with federal immigration officials.

Specifically it would require sheriffs to detain a person that's wanted by ICE.  The legislation was filed after several sheriffs elected last November, including Mecklenburg County’s Gary McFadden, ended their department’s cooperation with ICE.

Democrats argue the measure erodes the authority of sheriffs, but Republicans say it's necessary in order to keep the state safe. There have been claims on both sides about what the bill does. WFAE's "Morning Edition" host Marshall Terry turns to Paul Specht of the Raleigh News & Observer to separate what's true and what's false.

Terry: The first claim is from Republican Dan Bishop, who is running in September's special election in North Carolina's 9th Congressional District. He tweeted last month the bill would "force sanctuary sheriffs to comply with the law end in their dangerous catch-and-release program for criminal illegal aliens." So, are these sheriffs who ignore ICE requests breaking the law?

Specht: They're not. That is something that's misleading. It gives the impression that there's already a federal law or a state law that requires sheriffs to comply with ICE detainers. And, quick side note: An ICE detainer is basically a letter that ICE sends to sheriffs and other police agencies — people that have inmates in their custody — and it is not a legally binding document. They do not have to reply to it. They do not have to acknowledge it, and that's part of the reason that this bill was introduced.

There's just an effort by Republicans at the Capitol who want to force these sheriffs to comply with it, and we'll see how that goes. We're waiting on that bill to make it to (Gov. Roy) Cooper's desk. When it does get there, he's expected to veto it.

Terry: In another claim, the immigration advocacy group United We Dream refers to the bill as the "show me your papers" law. What's the reference there?

Specht: That phrase — "show me your papers" — is a reference to an Arizona law passed in 2010. And what that law did at the time was require police officers and any law enforcement officer to ask someone for their immigration papers if they suspected that they were in the country illegally.

This created sort of confrontations out in the public's square, if you will. Officers could encounter anyone on the street, neighborhoods, wherever. That law was later changed after a lawsuit. People suggested that it was encouraging racial profiling.

In this case, this bill in North Carolina does not ask officers to do anything in the streets. There is no encounter in the streets or in the public sphere where a law enforcement officer will confront someone that they believe is in the country illegally. That does not happen.

This only requires these sheriffs and other law enforcement officers to respond to ICE when they get this detainer letter from ICE requesting them to hold the inmate in question.

Mecklenburg County Sheriff Garry McFadden
Credit LISA WORF / WFAE

Terry: We've got time to look at one more claim. State Sen. Wiley Nickel, a Wake County Democrat, said in a recent newsletter to supporters that the bill would force sheriffs to comply with ICE's voluntary 287(g) program that allows some deputies to act as ICE agents. Mecklenburg County was long part of the program. Sheriff Garry McFadden campaigned on getting rid of it, and he did just that when he took office in December. So, would this bill in fact force sheriff's offices to comply with the program?

Specht: It would not. It's understandable that some people might be confused. To set up the timeline, some sheriffs, including the Mecklenburg County sheriff, were elected last year on the promise that they would cut ties with ICE and do away with something called the 287(g) program. That's a training program that essentially allows deputies to act on behalf of ICE in certain situations.

ICE detainers are something completely different. They are a letter that ICE sends to every jail asking for deputies to detain someone that they want for deportation. One can comply with ICE and still not be in the 287(g) program. By contrast, someone could be in the 287(g) program and not honor ICE detainers.

They are separate entities, but some people believe this bill is retaliation against those sheriffs who ended the 287(g) program, including Mecklenburg County's sheriff. So, it's easy to see why it would be confusing, but no, the bill itself does not require sheriffs or anyone to take part in ICE's 287(g) training program.

Terry: Lastly, Paul, you cover the state House, and you mentioned earlier that, should the bill get to Gov. Roy Cooper's desk, he's expected to veto it. What's the current status of the bill?

Specht: It has passed one chamber after being amended, and then it's now gone back to the other chamber, and we're unclear on when that will come up for a vote again. There have been budget negotiations. Republicans are trying to override Gov. Cooper's veto of their budget. And so that's taking up a lot of their time. The timeline for this bill is sort of unclear it's completely separate from budget negotiations.

This story was produced by the North Carolina Fact-Checking Project, a partnership of McClatchy Carolinas, the Duke University Reporters' Lab and PolitiFact. The NC Local News Lab Fund and the International Center for Journalists provide support for the project, which shares fact-checks with newsrooms statewide. To offer ideas for fact checks, email factcheck@newsobserver.com.