Limited cooperation with ICE by sheriff seen as tough on immigration

Guilford County Sheriff BJ Barnes campaigned for President Trump, but his agency continues to decline immigration detainers in defiance of ICE.

The Guilford County Sheriff’s Office’s policy on immigration detainers had been set since September 2014.

But in December 2016 a new shift commander who had recently joined the staff at the Greensboro Jail questioned whether there was flexibility to allow US Immigration and Customs Enforcement, or ICE, extra time to pick up an undocumented inmate who had served time, posted bond or otherwise resolved their criminal charges.

Matt Mason, the previous sheriff’s attorney, had established the policy in September 2014, writing in an email to command staff: “Based on recent legal developments, it is my recommendation that our detention facilities not hold inmates under ICE I-247 detainers once the inmate is otherwise entitled to be released unless ICE has and can produce a copy of (1) an outstanding criminal (not civil) arrest warrant, or (2) a valid court order directing the inmate’s detention.”

Mason and his successor, Jim Secor, have concluded that holding inmates violates the Fourth Amendment Constitutional guarantee against unlawful search and seizure, and that holding undocumented inmates beyond their normal release date could expose the sheriff’s office to legal liability.

“Any adverse consequences that could attach to a decision to hold an [inmate] beyond the disposition of his local criminal charges, will fall on us as I am certain the feds will grab the last available chair when the music stops and leave the GCSO standing by itself,” Secor wrote in a Dec. 7 email.

“I am hopeful that our new president may actually honor his Constitutional obligation,” he added. “If so, our policy could change shortly but not just yet.”

The decision for the sheriff’s office to not cooperate with ICE didn’t come without serious deliberation, Secor said.

“It is a difficult course to steer,” Secor told Triad City Beat. “The charges they are being held on are rather significant charges. These are not people who were being held for no driver’s license or expired registration. On the flip side, we’ve looked at this thing and have come to the conclusion that holding someone for 48 hours on a detainer absent some kind of judicial signature is going to violate the Fourth Amendment.”

The Forsyth County Sheriff’s Office follows the same policy as neighboring Guilford by releasing inmates at the disposition of their state charges or when they make bond, Assistant County Attorney Lonnie Albright said. He added that to his knowledge the jail has not held any immigrant detainees beyond the disposition of their state charges.

ICE receives a notification every time a fingerprint obtained through intake triggers a match in a federal database for immigration offenders. Secor said ICE typically sends an immigration detainer that winds up in the inmate’s file, adding that federal agents rarely make it to Greensboro in time to pick up undocumented inmates before they’re released from custody.

“Their office is in Charlotte,” Secor explained. “For them to make it here in time to get somebody, it’s rarely going to happen. That’s where ICE would see the sheriff’s office as deviating from complete compliance with the detainer process.”

Criminal violations by undocumented Guilford County inmates flagged by ICE for removal included at least three charges of felony assault with a deadly weapon, according to ICE immigration detainers from Oct. 29, 2016 through March 2, 2017 that were obtained by TCB.

In a couple cases, Secor said, shift commanders at Guilford County jails have held inmates beyond their legal release date to allow ICE to pick them up in violation of the sheriff’s office policy. He added that shift commanders might have been confused because ICE has started sending a document called an “administrative arrest warrant” with the detainer and they mistakenly believed they were obligated to comply. But the administrative arrest warrants, like detainers, are only signed by an ICE agent and don’t hold legal weight, he said.

The Guilford County Sheriff’s Office’s policy of limited cooperation with ICE runs counter to the posture of BJ Barnes, a Republican first elected sheriff in 1994 who has conspicuously aligned himself with high-profile, anti-immigrant politicians in recent years, including President Trump and former Gov. Pat McCrory.

In October 2015, the Guilford County Sheriff’s hosted McCrory’s signing ceremony for HB 318, which outlawed so-called sanctuary cities in North Carolina while barring some governmental agencies from recognizing nonprofit-issued ID — a none-too-subtle jab at the local nonprofit FaithAction, which issues IDs to create trust between immigrants and local law enforcement including the Greensboro and Winston-Salem police departments.

The clamor among conservatives across the country against so-called sanctuary cities gathered force following the July 2015 murder of Kate Steinle by an undocumented immigrant who had been released from custody by the San Francisco Sheriff’s Office after refusing to honor an ICE detainer. Politicians from Trump to US Rep. Trey Goudy and NC Sen. Jerry Tillman jumped on the bandwagon. (Unlike some of the inmates subject to ICE detainers in Guilford County, the suspect in the Steinle shooting had not been convicted of a violent crime at the time of his release from jail.)

“32-year-old, beautiful, talented Kate Steinle would probably be alive today if San Francisco had any guts about them whatsoever, which they don’t,” Sen. Tillman said, speaking in support of HB 318. North Carolina became the first state to outlaw sanctuary cities.

Gov. McCrory said during the signing ceremony for HB 318 that sanctuary cities represented a “breakdown” of order and were “contrary to the oath every law enforcement officer and elected official” took “to uphold the Constitution.”

Only weeks after Barnes hosted Gov. McCrory for the signing of HB 318 at the Guilford County Sheriff’s Office, ICE attempted to persuade the agency to relax its policy on immigration detainers, according to Sheriff’s Attorney Jim Secor, but Sheriff Barnes held firm.

“We met briefly with the sheriff in advance of the meeting with ICE and the decision was to stick to the policy as articulated by Matt Mason,” Secor recalled in a December 2016 email. “The meeting with ICE was postponed but never rescheduled.”

Barnes told TCB that regardless of his personal feelings about immigration, his oath to uphold the Constitution requires that he adheres to the law.

“There are 11-, 12-, 13 million people here illegally,” he said. “I’m very pragmatic. We’re not going to be able to get all those folks out of the country. There’s not enough law enforcement. We would have to stretch the law to get all of them out, and I’m not willing to do that. I don’t know that they’re going to be able to do anything without a law being changed. The detainer is signed by an ICE agent; that is not a judicial order. I need a criminal paper. I made that very clear to them.”

In June 2016, Barnes made the first of three campaign appearances on behalf of Donald Trump as an official surrogate for the candidate. Barnes said he met briefly with then-candidate Trump during the campaign, but the conversation “was wide open” and “didn’t get down into the weeds.” It mostly focused on Trump’s prospects for carrying North Carolina and Guilford County in the November election.

But Barnes said he met Trump a couple years before the campaign, and discussed the impact of drugs on local communities and law enforcement. Barnes said he told Trump at the time that the nation needed more immigration officers, not more local law enforcement, and that it was important to secure the border, in part, to stem the flow of illegal drugs.

Most of Trump’s comments during his June 2016 appearance in Greensboro, where Barnes gave a warm-up speech, focused on refugees and Islamic extremism, but a year earlier Trump had attempted to tie the man accused of killing Steinle to terrorism.

“There’s tremendous crime,” Trump said during an appearance on Fox News’ “Fox and Friends” on July 4, 2015. “Illegal immigration is just incredible. You talk about terrorism and terrorists, they’re gonna come in on the southern border, too, because it’s the easiest thing — you just walk right in.”

Once elected, one of Trump’s first acts was to sign an executive order designed to accelerate the removal of undocumented immigrants, in part, by pressuring local law enforcement to cooperate with federal authorities. Entitled “Enhancing Public Safety in the Interior of the United States,” the Jan. 25 executive order has met with only limited success so far.

Among its many provisions, the executive order instructs Homeland Security Secretary John Kelly to encourage local agencies to sign what are known as 287(g) agreements to empower local law enforcement officials “to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and supervision of the secretary.”

Both sheriffs in Guilford and Forsyth County have essentially said: No, thanks.

“I don’t have the manpower to be doing my job and ICE’s job, too,” Barnes said in an interview.

Forsyth County Sheriff Bill Schatzman said in late January that he was not considering entering into a 287(g) agreement with Homeland Security.

The Guilford County Sheriff’s Office previously maintained a 287(g) agreement from 2009 to 2012, but Barnes said the purpose was only to access ICE’s database of immigration offenders. Once a program called Secure Communities was expanded to all 50 states with universal access to the database, he no longer saw a need for the agreement.

The relationship between Sheriff Barnes and ICE hasn’t always been smooth.

“I did butt heads with ICE,” Barnes said. “It was not over who was in charge; it was over whether what they were doing was Constitutional,” Barnes said. “We had some discussions with that, and the answers they gave were not satisfactory to me. It had to do with a joint task force that we were working together.”

The sheriff declined to elaborate on the basis that doing so would compromise a criminal investigation.

Barnes said sheriffs across the state are concerned about their inability to hold inmates on immigration detainers without running afoul of the Constitution. As co-chair of the legislative committee for the NC Sheriff’s Association, Barnes said he has reached out to members of the congressional delegation, including Sens. Richard Burr and Thom Tillis and Reps. Mark Walker and Ted Budd, to lobby for federal legislation that would allow ICE to obtain judicial orders to enforce detainers.

Meanwhile, in an attempt to shame local jurisdictions that don’t honor detainers, Trump’s Jan. 25 executive order instructed the homeland security secretary to create a “Declined Detainer Outcome Report” to “make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to aliens.”

The first report issued was riddled with errors, including declaring that Richmond County Sheriff’s Office in North Carolina had declined a detainer, though the inmate sought by ICE was actually in a different county. After three weeks, the agency stopped issuing reports.

A note on the homepage for the program states: “ICE remains committed to publishing the most accurate information available regarding declined detainers across the country and continues to analyze and refine its reporting methodologies. While this analysis is ongoing, the publication of the Declined Detainer Outcome Report will be temporarily suspended.”

Ironically, the Guilford and Forsyth sheriffs’ offices were not flagged.

“We’re not on that list,” said Jim Secor, the sheriff’s attorney, “but we’re not complying with the requirement to detain someone once they’re eligible for release.”