For many immigration activists, 2018 was the year of the Section 287(g) bogeyman.
That’s Section 287(g) of the Immigration and Nationality Act of 1996, to be exact. It authorizes state and local law enforcement to assist in the transfer of illegal immigrants with criminal charges or convictions to federal authorities. It led to the identification of more than 402,000 illegal immigrants between 2006 and 2015, and it’s part of the reason more immigrants were deported under Obama than under any other president.
But as with all things immigration-related, the argument over 287(g) intensified once President Trump took office. Proponents contended that the provision allows law enforcement to use its resources on criminals rather than on the immigrant population more broadly, while critics charged that it leads to racial profiling and distrust between immigrant communities and the police.
The issue came to a head in 2018 as a rallying cry for progressive critics of the Trump administration. “I would like us to go beyond to say not only do we not assist ICE, but we’re putting up a bit of a firewall to ensure that our local resources are not being used,” Elizabeth Alex, a senior director at immigration-advocacy group CASA, said shortly after Election Day last year.
One of the main battlegrounds was North Carolina. Across the state, a coalition of progressive sheriff candidates, with national support, campaigned and won on taking a stand against ICE. In Mecklenburg County, the American Civil Liberties Union spent $175,000 to support Garry McFadden, the first time the group had run a voter-education campaign in a local sheriff’s election. McFadden returned the favor. “287(g) is going to be history!” he declared on Election Night. In Buncombe County, Democrat Quentin Miller ran on a platform that included a refusal to cooperate with ICE on 287(g). “We need to do this as a community. A community of ‘we,’” Miller told supporters after his victory.
One year into the experiment, voters are already voicing their concerns — the anti-287(g) narrative has proved to be not only false, but dangerous.
* * *
Last week, voters in Tucson, Ariz. voted by a two-to-one margin against adopting a “sanctuary city” proposal, despite support for the initiative from the City Council. In Montgomery County, Md., nine illegal immigrants, at least four of whom had been previously arrested, have been charged with sexual assault since July. In response, the Democratic county executive has reversed a three-month-old policy that barred ICE detainers, after previously calling ICE’s pursuit of illegal-immigrant criminals “the definition of terrorism.”
North Carolina has had no more success with such policies. In May, Luis Pineda-Ancheta, a Honduran national who had been deported in 2006, was released in Mecklenburg on bail when McFadden refused to comply with an ICE detainer request, which was submitted after Pineda-Ancheta was arrested for threatening to kill a woman. Five days later, the same woman reported that Pineda-Ancheta had kidnapped her, stuffed a cloth in her mouth, placed a rope around her neck, and led her into a stand of trees before tripping, which allowed her to escape. After a nine-hour standoff with SWAT, Pineda-Ancheta was arrested again.
McFadden’s response? “If I had known it was this fun, I would have done it years ago,” he said when asked about his job last year, in the middle of the Pineda-Ancheta case.
This year, McFadden has denied 23 detainer requests involving illegal immigrants charged with criminal offenses, according to ICE reports, and stopped returning emails and phone calls from ICE to discuss the situation.
The situation is unsurprisingly similar in Buncombe County. Last month, Marvin Ramirez Torres, a Salvadoran national who was first put on ICE’s radar in 2017, was convicted for raping an eleven-year old girl he knew personally and sentenced to time served. Rather than let ICE take custody of Ramirez Torres in the jail, Miller released him back into the community, a move opposed by the county’s Democratic district attorney.
In explaining their positions, both McFadden and Miller, whose offices did not respond to requests for comment, have argued that ICE has no right to have its detainer requests fulfilled by local law enforcement without an arrest warrant.
“All I’m asking ICE to do is this: Bring me a criminal warrant, and I’ll hold anybody for you,” McFadden said in May. Miller echoed the sentiment in his statement on Ramirez Torres’s release in October. “If ICE is aware of an individual that they have determined to be a danger to the public safety of Buncombe County, then ICE should obtain a warrant for their arrest. Once that warrant has been secured my Deputies will work to apprehend that individual,” he said.
The problem is that no such warrant exists under immigration law, and the sheriffs know it. As of November 1, twelve of 25 outstanding detainers in involving illegal immigrants with criminal charges in North Carolina come from Buncombe and Mecklenburg.
“Frequently we hear sanctuary policy proponents say, ‘we’d love to cooperate with ICE, and we will, as soon as they give us a judicial warrant.’ They might as well say, ‘we’ll cooperate with ICE as soon as they give us a purple unicorn on a silver platter.’ They know it’s not possible,” says Jessica Vaughn, the director of policy studies at the Center for Immigration Studies. “Most of immigration violations are civil. Even horrible criminals are removed on civil immigration violations, no matter how violent they are . . . ICE issues well over 100,000 detainers every year. The federal judiciary does not have the ability to process those, nor even the authority, really, not to mention they don’t have the expertise.”
* * *
Sanctuary polices like those upheld by McFadden and Miller haven’t always been the norm in North Carolina. Former Buncombe County sheriff Jack Van Duncan, who retired last November after three successive terms and left the Democratic party over what he calls “an anti-law enforcement sentiment,” says that while he was the first sheriff in the state to withdraw from 287(g), he was not one to stonewall ICE.
“We did cooperate with ICE, we were not 287(g),” he says. “What it comes down to is if you’re asking, ‘Look, we have held someone that ICE asked us specifically to hold for 48 hours on their detainer,’ if you look at every case, generally that answer was going to be ‘Yes,’ and we cooperate.”
Van Duncan adds that he would have helped ICE in the Ramirez Torres case.
“Specifically, in this situation, considering the charges and knowing that deportation’s going to be what takes place with this individual, we would have held him,” the former Buncombe sheriff says. “We would probably have coordinated with them, especially if my fellow prosecutor would call me and ask me to do that, we just always had that level of cooperation.”
ICE Atlanta’s interim field-office director, John Tsoukaris, argues that such cooperation is crucial, because the immigrant community in North Carolina is more adversely affected when local law enforcement treats ICE detainers differently than it would detainers issued by any other agency.
“I hear that they’re trying to build ‘community trust,’ and I tell people I see no correlation between ‘community trust’ with the police, and releasing somebody who’s committed a serious crime or been convicted of a serious crime back into the community that he knows and that’s where he committed the crime. It’s all politics unfortunately,” Tsoukaris says. “A lot of these immigrant communities don’t want these criminals there either. They prey on their own because they know that if they’re here illegally, they might be telling them, ‘Hey, if you call ICE, then I’m going to do something to you.’”
What’s more, when a sheriff’s office ignores a detainer and releases an illegal-immigrant criminal back onto the streets, ICE is forced to pursue the suspect on its own, an unnecessary strain on its agents and resources and a potential risk to the immigrant community. After McFadden and Miller elected to release Pineda-Ancheta and Ramirez Torres instead of handing them over to ICE, the organization pursued both men and ended up taking them into custody. But according to Tsoukaris, such operations don’t always have such an outcome, and are far from ideal.
“Instead of taking ten minutes and you’ve taken somebody off the street, you’re taking days and weeks to try to locate [the suspect],” he says. “There’s officer safety issues, something could happen at a house or street which could be a potential hazard for the people around in the community. It’s safer for the officers and for the community, because when you go out into the community, you don’t know who you’re going to encounter.”
“All we need is a phone call to tell us, ‘Hey this person’s being released, and you got a couple hours to get here,’” he adds. “It’s very simple.”