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State judges can’t break the ICE holds


State judges don’t have the power to order the release of detainees being held by local law enforcement pursuant to an agreement with federal Immigration and Customs Enforcement (ICE), the North Carolina Supreme Court has unanimously ruled.

Luis Lopez and Carlos Chavez were arrested in Mecklenburg County in 2017. At the time, the sheriff’s office had an arrangement with ICE, known as a 287(g) agreement, which let the office perform some immigration functions. ICE placed detainers on Lopez and Chavez, notifying the sheriff that it intended to take custody of them once they were released from the county’s custody.

Both men made bail but weren’t released due to the detainers. They filed petitions for writs of habeas corpus in superior court arguing that the sheriff lacked authority under state law to continue to detain them. Mecklenburg County Superior Court Judge Yvonne Mims-Evans granted both writs, ordering the sheriff to immediately release both men.

The sheriff’s office sought review by the state’s Court of Appeals. Although the case was moot because the men had already been turned over to ICE’s custody when Mims-Evans granted the writs, the appeals court agreed to hear it under an exception to the mootness doctrine as a matter of public interest. The court then unanimously vacated the writs, finding that state and local officials had no authority to interfere in the federal government’s exclusive authority over the regulation of immigration.

Unusually, both sides asked the Supreme Court to review the Court of Appeals’ decision. Lopez and Chavez argued that the Court of Appeals had erred by applying the public interest exception to the mootness doctrine because the sheriff’s office had willfully mooted the release orders by handing the men over to ICE, and then appealed those writs in an effort to obtain, in effect, an impermissible after-the-fact advisory opinion ratifying its conduct.

Putting off the writs

But Justice Sam Ervin, writing for the court in a June 5 opinion, agreed that the case fell within the exception to the mootness doctrine and that state judges lack the power to order the release of persons being detained pursuant to a 287(g) agreement. If a state judge determines that a petitioner is being held based on an immigration-related detainer by an agency with a valid 287(g) agreement, the judge must summarily deny, rather than dismiss, the habeas request, and the petitioner must seek relief in the federal courts, Ervin wrote.

“Just as a state cannot enact laws that interfere with ‘the preeminent role of the Federal Government with respect to the regulation of aliens within our borders’ … state court judges cannot interfere with the custody and detention of individuals held pursuant to federal authority,” Ervin wrote.

The Supreme Court said that the appeals court had erred in part, however, by holding that state judges couldn’t grant habeas to detainees in federal custody even if the local agency didn’t have a 287(g) agreement. The court said it was expressing no opinion about whether such agencies may detain someone based on an immigration-related detainer.

Also, the Court of Appeals had ordered that certified copies of its opinion be delivered to the Judicial Standards Commission and the state bar’s Disciplinary Hearing Commission. Judge Richard Dietz later wrote a concurring opinion clarifying that the court wasn’t suggesting that anyone involved in the case had committed misconduct, but rather wanted to ensure that those bodies were aware of the court’s decision. (Perhaps coincidentally, the clarification came soon after Lawyers Weekly published a column misinterpreting the court’s intention in just such a way.)

The Supreme Court vacated that order, saying it wasn’t inclined to assume that judges would knowingly refuse to follow an appellate court’s order and had “no hesitation in concluding that the issues before the Court of Appeals and this Court in this case were both novel and complex and that trial judges could not be expected to have predicted how [either court] would decide how immigration-related habeas corpus petitions should be handled in advance of our decisions.”

ICE coverage retreating

Ervin noted that 287(g) agreements remain controversial. In 2018, Mecklenburg County’s then-sheriff, Irwin Carmichael, lost his re-election bid to now-sheriff Garry McFadden in a landslide after McFadden vowed to end the county’s 287(g) agreement. Several other large counties in the state also terminated their 287(g) agreements after voters elected new sheriffs that year.

State lawmakers responded by passing House Bill 370, which would have forced sheriffs to comply with ICE detainers, but Gov. Roy Cooper vetoed the bill and legislators lack the votes to override the veto. As of May, ICE had 287(g) agreements with law enforcement agencies in eight of North Carolina’s 100 counties, covering only a small fraction of the state’s population.

Sean Perrin of Womble Bond Dickinson in Charlotte, who represented the sheriff’s office, said that McFadden was pleased with the decision and appreciated the clarity on the issue. Perrin said that although the Supreme Court focused solely on cases involving a 287(g) order, its reasoning might equally apply to other situations as well.

“I think ultimately it was limited to the 287(g) issue, but reading between the lines, I think it’s probably broader than that,” Perrin said.

Rob Heroy of Goodman Carr in Charlotte and Sejal Zota of the National Immigration Project of the National Lawyers Guild in Boston represented Lopez and Chavez. Heroy said that the Supreme Court seemed to take great care to constrain its decision to the fact pattern in front of it.

“It wasn’t everything we wanted, but it was nice to see the change and the partial reversal of the Court of Appeals’ opinion,” Heroy said. “I think that the Court of Appeals’ opinion foreclosed relief for a lot of individuals who might have sought habeas relief, and the Supreme Court’s opinion clears the path for anyone who’s not in a 287(g) county to continue to challenge their detention through the writ of habeas corpus.”

The 32-page decision is Chavez v. McFadden (Lawyers Weekly No. 010-065-20). The full text of the opinion is available online at

Follow David Donovan on Twitter @NCLWDonovan

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