North Carolina Supreme Court: State Courts Can’t Hear 287(g) Challenges

By David Jaroslav | FAIR Take | June 2020

The North Carolina Supreme Court held unanimously on June 5 that state courts have no authority to rule on challenges to illegal aliens being held in custody by state or local law enforcement agencies if those agencies are in 287(g) agreements with Immigration and Customs Enforcement (ICE).  Instead, any such challenges can only be heard by the federal courts.

Immigration detainers are issued by ICE directing state and local agencies to hold individuals in their custody for up to 48 hours after their release on state criminal charges, so that ICE can pick them up and begin or continue the process of removing them.

The 287(g) program, which refers to a section of the federal Immigration and Nationality Act (INA), allows state and local law enforcement agencies to enter into formal cooperation agreements with ICE and  to deputize some of their officers as federal immigration officers.  These individuals are trained in immigration enforcement, have access to ICE databases, can start the removal process, and have effectively seamless communication with ICE.

Writing for all seven justices of the Democrat-majority court, Associate Justice Sam Ervin declared that a state trial court lacked jurisdiction to order that two illegal aliens be released by the Mecklenburg County Sheriff’s Office (MCSO) in 2017.  One alien had been charged with robbery and the other was charged with assaulting a female and driving under the influence.  Both aliens had been held on detainers issued by ICE and the MCSO had a 287(g) agreement in effect at the time, although it has withdrawn that agreement since sanctuary sheriff, Garry McFadden (D) was elected.

The North Carolina Supreme Court was very clear in its opinion, stating that “[j]ust 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.”

It cited an opinion by the United States Supreme Court from 1872, Tarble’s Case, where the Wisconsin state courts had attempted to order the release of a prisoner in the custody of the U.S. Army.  The U.S. Supreme Court reversed the Wisconsin Supreme Court in that case, explaining:

“State judges and state courts, authorized by laws of their states to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. … If a party thus held be illegally imprisoned it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release.”

Based on the Supremacy Clause of the U.S. Constitution, the North Carolina Supreme Court held that “local and state law enforcement officers performing certain federal immigration functions pursuant to a 287(g) agreement between the federal government and a local law enforcement agency are acting under color of federal authority and, while acting in accordance with such an agreement, should be treated as federal, rather than state, officers.”  They ruled that challenges to the lawfulness of a 287(g) detainer would have to be directed to the federal courts.

In a footnote, the court also briefly addressed situations where illegal aliens were held on federal immigration detainers by a state or local agency without a 287(g) agreement.  The court held this was not the case before it or the question it was deciding, leaving it open to be decided in future cases.

State courts have been inconsistent about whether they have jurisdiction over challenges to detainers in the absence of a 287(g) agreement.  Florida and Ohio courts have said they don’t.  Massachusetts and New York courts have held they do, and have effectively turned their states into sanctuary states by saying state and local law enforcement can’t honor detainers.  But even those state courts have said or at least implied that 287(g) is the exception. 

Some states with recent sanctuary laws, like Colorado and Washington State, have attempted  to ban 287(g).  The validity of those bans have yet to be litigated. 

Click here to read the opinion of the North Carolina Supreme Court in Charez v. McFadden