IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-317
Filed: 6 November 2018
Mecklenburg County, No. 17 CR 230629-30
CARLOS CHAVEZ, Petitioner,
v.
IRWIN CARMICHAEL, SHERIFF, MECKLENBURG COUNTY, Respondent.
Mecklenburg County, No. 16 CR 244165
LUIS LOPEZ, Petitioner,
v.
IRWIN CARMICHAEL, SHERIFF, MECKLENBURG COUNTY, Respondent.
Appeal by respondent from orders entered 13 October 2017 by Judge Yvonne
Mims-Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals
2 October 2017.
National Immigration Project of the National Lawyers Guild, by Sejal Zota,
and Goodman Carr, PLLC, by Rob Heroy, for petitioners Luis Lopez and Carlos
Chavez.
Womble Bond Dickenson (US) LLP, by Sean F. Perrin, for respondent.
U.S. Department of Justice Civil Division, by Trial Attorney Joshua S. Press,
for amicus curiae United States Department of Justice.
TYSON, Judge.
CHAVEZ V. CARMICHAEL
Opinion of the Court
Mecklenburg County Sheriff Irwin Carmichael (“the Sheriff”) appeals, in his
official capacity, from two orders of the superior court ordering the Sheriff to release
two individuals from his custody. We vacate the superior court’s orders and remand
to the superior court to dismiss the habeas corpus petitions for lack of subject matter
jurisdiction.
I. Background
A. 287(g) Agreement and ICE Detainer Requests
The Sheriff and Immigration and Customs Enforcement (“ICE”), an agency
under the jurisdiction and authority of the United States Department of Homeland
Security (“DHS”), entered into a written agreement (the “287(g) Agreement”) on 28
February 2017 pursuant to 8 U.S.C. § 1357(g)(1).
The federal Immigration and Nationality Act (“INA”) authorizes DHS to enter
into formal cooperative agreements, like the 287(g) Agreement, with state and local
law enforcement agencies and officials. See 8 U.S.C. § 1357(g). Under these
agreements, state and local authorities and their officers are subject to the
supervision of the Secretary of Homeland Security and are authorized to perform
specific immigration enforcement functions, including, in part, investigating,
apprehending, and detaining illegal aliens. 8 U.S.C. §§ 1357(g)(1)-(9). In the absence
of a formal cooperative agreement, the United States Code additionally provides local
authorities may still “communicate with [ICE] regarding the immigration status of
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Opinion of the Court
any individual . . . or otherwise cooperate with [ICE] in the identification,
apprehension, detention, or removal of aliens not lawfully present in the United
States.” 8 U.S.C. § 1357(g)(10)(A)-(B).
Upon request from DHS, state and local law enforcement may “participate in
a joint task force with federal officers, provide operational support in executing a
warrant, or allow federal immigration officials to gain access to detainees held in
state facilities.” Id. However, state and local officers may not make unilateral
decisions concerning immigration enforcement under the INA. Id.
Federal agencies and officers issue a Form I-247 detainer regarding an alien
to request the cooperation and assistance of state and local authorities. 8 C.F.R. §
287.7(a), (d). An immigration detainer notifies a state or locality that ICE intends to
take custody of an alien when the alien is released from that jurisdiction’s custody.
Id. ICE requests the state or local authority’s cooperate by notifying ICE of the alien’s
release date and by holding the alien for up to 48 hours thereafter for ICE to take
custody. Id. In addition to detainers, ICE officers may also issue administrative
warrants based upon ICE’s determination that probable cause exists to remove the
alien from the United States. Lopez-Lopez v. Cty. of Allegan, 321 F. Supp. 3d 794, 799
(W.D. Mich. 2018) (citing Abel v. United States, 362 U.S. 217, 233-34, 4 L. Ed. 2d 668
(1960) and 8 U.S.C. § 1226(a)).
B. Chavez and Lopez’ Habeas Petitions
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Opinion of the Court
1. Luiz Lopez
On 5 June 2017, Luiz Lopez (“Lopez”) was arrested for common law robbery,
felony conspiracy, resisting a public officer, and misdemeanor breaking and entering.
Lopez was incarcerated at the Mecklenburg County Jail under the Sheriff’s custody.
Later that day, following his arrest, Lopez was served with a Form I-200
administrative immigration arrest warrant issued by DHS. Also the same day, the
Sheriff’s office was served with a Form I-247A immigration detainer issued by DHS.
The Form I-247A requested the Sheriff to maintain custody of Lopez for up 48 hours
after he would otherwise be released from the state’s jurisdiction to allow DHS to
take physical custody of Lopez. Lopez was held in jail on the state charges under a
$400 secured bond.
2. Carlos Chavez
On 13 August 2017, Carlos Chavez (“Chavez”) was arrested for driving while
impaired, no operator’s license, interfering with emergency communications, and
assault on a female, and was detained at the Mecklenburg County Jail. That same
day, Chavez, under his name “Carlos Perez-Mendez,” was served with a Form I-200
administrative immigration warrant issued by DHS.
The Sheriff’s office was served with a Form I-247A immigration detainer,
issued by DHS, requesting the Sheriff to detain “Carlos Perez-Mendez” for up to 48
hours after he would otherwise be released from the state’s jurisdiction to allow DHS
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Opinion of the Court
to take physical custody of him. Chavez was held in jail for the state charges on a
$100 cash bond.
At approximately 9:00 a.m., on 13 October 2017, Lopez’ release from jail on
state criminal matters was resolved when his $400 secured bond was purportedly
made unsecured by a bond modification form. That same day, Chavez posted bond
on his state criminal charges. The Sheriff continued to detain Lopez and Chavez
(“Petitioners”) at the county jail pursuant to the Form I-247A immigration detainers
and I-200 arrest warrants issued by DHS.
At 9:13 a.m. on 13 October 2017, Chavez and Lopez filed petitions for writs of
habeas corpus in the Mecklenburg County Superior Court. Petitioners recited three
identical grounds to assert their continued detention was unlawful: (1) “the detainer
lacks probable cause, is not a warrant, and has not been reviewed by a judicial official
therefore violating [Petitioners’] Fourth Amendment rights under the United States
Constitution and . . . North Carolina Constitution”; (2) “[the Sheriff] lacks authority
under North Carolina General Statutes to continue to detain [Petitioners] after all
warrants and sentences have been served”; and (3) “[the Sheriff’s] honoring of ICE’s
request for detention violates the anti-commandeering principles of the Tenth
Amendment . . . .” In his petition for writ of habeas corpus, Chavez alleged that he
was held at the county jail pursuant to the immigration detainer and administrative
warrant listing his name as “Carlos Perez-Mendez.”
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Later that morning, the superior court granted both Petitioners’ petitions for
writs of habeas corpus, and entered return orders, which ordered that the Petitioners
“be immediately brought before a judge of Superior Court for a return hearing
pursuant to N.C.G.S. 17-32 to determine the legality of [their] confinement.” The
trial court also ordered the Sheriff to “immediately appear and file [returns] in
writing pursuant to N.C.G.S. 17-14.”
Based upon our review of a chain of emails included in the record on appeal,
Mecklenburg County Public Defender’s Office Investigator, Joe Carter, notified
Marilyn Porter, in-house legal counsel for the Sheriff’s office, the petitions for writs
of habeas corpus had been filed. At 9:30 a.m. on October 13, Porter forwarded Carter’s
email to the Sheriff; Sean Perrin, outside legal counsel for the Sheriff; and eight other
individuals affiliated with the Sheriff’s office. Porter stated in her email that “I do
not acknowledge receipt of any of [Carter’s] emails on this topic. We will see who is
the subject of this Writ – and what Judge signed.”
In the same chain of emails, Sheriff’s Captain Donald Belk responded he had
received notice from the clerk of court that Petitioners’ “cases are on in 5350 this
morning.” Belk also wrote, “CHAVEZ, CARLOS 451450, he was put in ICE custody
this morning. I have informed Lock Up that Chavez is in ICE custody and should not
go to court.” Belk’s email also stated, “LOPEZ, LUIS 346623, he is in STATE
custody.”
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Opinion of the Court
After the superior court signed its return orders, Public Defender Investigator
Carter went to the Sheriff’s office. An employee at the front desk informed him that
neither the Sheriff nor his in-house counsel, Porter, were present at the office. The
front desk receptionist refused to accept service of the superior court’s return orders
and the Petitioners’ habeas petitions. Carter left copies of the orders and petitions
on the Sheriff’s front desk at 10:23 a.m. Carter then went to the county jail and left
copies of the orders and petitions with a sheriff’s deputy at 10:26 a.m.
At 11:57 a.m. that morning and without notice of the hearing to the Sheriff,
the superior court began a purported return hearing on Petitioners’ habeas petitions.
The Sheriff did not appear at the hearing, did not produce Petitioners before the
court, and had not yet filed returns pursuant to N.C. Gen. Stat. § 17-14 (2017).
During the return hearing, Petitioners’ counsel provided the court with
Carter’s certificates of service of the Petitioners’ habeas petitions and the court’s
return orders. Petitioners’ counsel informed the court about the email sent by Carter
to the Sheriff’s in-house counsel, Porter, earlier that day. The court ruled Petitioners’
continued detention was unlawful and ordered the Sheriff to immediately release
Petitioners.
Later that day, after the superior court had ordered Petitioners to be released,
counsel for the Sheriff timely filed written returns for both Petitioners’ cases within
the limits allowed by N.C. Gen. Stat. § 17-26 (2017). Before the superior court issued
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Opinion of the Court
its orders to release Petitioners, the Sheriff’s office had turned physical custody of
both Petitioners over to ICE officers.
On 6 November 2017, the Sheriff filed petitions for writs of certiorari with this
Court to seek review of the superior court’s 13 October 2017 orders. The Sheriff also
filed petitions for a writ of prohibition to prevent the superior court from ruling on
habeas corpus petitions filed in state court, premised upon the Sheriff’s alleged lack
of authority to detain alien inmates subject to federal immigration warrants and
detainer requests. On 22 December 2017, this Court allowed the Sheriff’s petitions
for writs of certiorari and writ of prohibition.
On 22 January 2018, the Sheriff served a proposed record on appeal.
Petitioners objected to inclusion of two documents, a version of the Form I-200
immigration arrest warrant for Lopez signed by a DHS immigration officer and the
287(g) Agreement between ICE and the Sheriff’s office. The trial court held a hearing
to settle the record on appeal. The trial court ordered the 287(g) Agreement to be
included in the record on appeal and the signed Form I-200 warrant for Lopez not to
be included.
The record on appeal was filed and docketed with this Court on 27 March 2018.
Prior to the Sheriff submitting his brief, Petitioners filed a motion to strike the 287(g)
Agreement and a petition for writ of certiorari challenging the trial court’s order,
which had settled the record on appeal. By an order issued 4 May 2018, this Court
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Opinion of the Court
denied Petitioners’ petition for writ of certiorari “without prejudice to assert
argument in direct appeal.” Petitioners’ motion to strike the 287(g) Agreement from
the record on appeal was dismissed by an order of this Court entered 12 September
2018.
On 27 April 2018, the United States filed a motion for leave to file an amicus
curiae brief. By an order dated 1 May 2018, this Court allowed the United States’
(“Amicus”) motion.
On 27 April 2018, the Sheriff filed his appellate brief. Included in the appendix
to the brief was a copy of the ICE Operations Manual. On 2 July 2018, Petitioners
filed a motion to strike the ICE Operations Manual from the Sheriff’s brief. This
Court denied Petitioners’ motion to strike the ICE Operations Manual by an order
entered 12 September 2018.
II. Jurisdiction
Jurisdiction to review this appeal lies with this Court pursuant to the Court’s
order granting the Sheriff’s petitions for writs of certiorari and prohibition entered
22 December 2017. N.C. Gen. Stat. § 1-269 (2017).
III. Analysis
The Sheriff, Petitioners, and Amicus all present the same arguments with
regard to both Petitioners. We review the parties’ arguments as applying to both of
the superior court’s orders.
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Opinion of the Court
The Sheriff argues the superior court was without jurisdiction to consider
Petitioners’ petitions for writs of habeas corpus, or to issue the writs, because of the
federal government’s exclusive control over immigration under the United States
Constitution, the authority delegated to him under the 287(g) Agreement, and under
the administrative warrants and immigration detainers issued against Petitioners.
See 8 U.S.C. § 1357(g)(10)(A)-(B).
A. Mootness
Petitioners initially argue the cases are moot, because the Sheriff has turned
Petitioners over to the physical custody of ICE. The Sheriff argues that even if the
cases are moot, the issues fall within an exception to the mootness doctrine.
“Whenever, during the course of litigation it develops that the relief sought has
been granted or that the questions originally in controversy between the parties are
no longer at issue, the case should be dismissed [as moot.]” In re Peoples, 296 N.C.
109, 147, 250 S.E.2d 890, 912 (1978). “A case is ‘moot’ when a determination is sought
on a matter which, when rendered, cannot have any practical effect on the existing
controversy.” Roberts v. Madison Cty. Realtors Ass’n, 344 N.C. 394, 398-99, 474
S.E.2d 783, 787 (1996) (citation omitted).
The issues in the case before us are justiciable where the question involves is
a “matter of public interest.” Matthews v. Dep’t of Transportation, 35 N.C. App. 768,
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770, 242 S.E.2d 653, 654 (1978). “In such cases the courts have a duty to make a
determination.” Id. (citation omitted).
Even if the Sheriff is not likely to be subject to further habeas petitions filed
by Chavez and Lopez or orders issued thereon, this matter involves an issue of federal
and state jurisdiction to invoke the “public interest” exception to mootness. Under
the “public interest” exception to mootness, an appellate court may consider a case,
even if technically moot, if it “involves a matter of public interest, is of general
importance, and deserves prompt resolution.” N.C. State Bar v. Randolph, 325 N.C.
699, 701, 386 S.E.2d 185, 186 (1989). Our appellate courts have previously applied
the “public interest” exception to otherwise moot cases of clear and far-reaching
significance, for members of the public beyond just the parties in the immediate case.
See, e.g., Granville Cty. Bd. of Comm’rs v. N.C. Hazardous Waste Mgmt. Comm’n, 329
N.C. 615, 623, 407 S.E.2d 785, 790 (1991) (applying the “public interest” exception to
review case involving location of hazardous waste facilities); In re Brooks, 143 N.C.
App. at 605-06, 548 S.E.2d at 751-52 (applying the “public interest” exception to police
officers’ challenge of a State Bureau of Investigation procedure for handling personnel
files containing “highly personal information” and recognizing that “the issues
presented . . . could have implications reaching far beyond the law enforcement
community”).
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Similar to the procedural posture of the Sheriff’s appeal, this Court applied
the “capable of repetition, but evading review” as well as the “public interest”
exception in State v. Corkum to review a defendant’s otherwise moot appeal, which
was before this Court on a writ of certiorari. State v. Corkum, 224 N.C. App. 129, 132,
735 S.E.2d 420, 423 (2012) (holding that an issue of felon’s confinement credit under
structured sentencing under the Justice Reinvestment Act of 2011 required review
because “all felons seeking confinement credit following revocation of post-release
supervision will face similar time constraints when appealing a denial of confinement
credit effectively preventing the issue regarding the trial judge’s discretion from being
resolved”).
The Sheriff’s appeal presents significant issues of public interest because it
involves the question of whether our state courts possess jurisdiction to review habeas
petitions of alien detainees ostensibly held under the authority of the federal
government. This issue potentially impacts habeas petitions filed by suspected illegal
aliens held under 48-hour ICE detainers directed towards the Sheriff and the many
other court and local law enforcement officials across the state. The Sheriff’s filings
show that several other habeas petitions have been filed against him by ICE
detainees, including one that was filed and ruled upon after a writ of prohibition was
issued by this Court. Prompt resolution of this issue is essential because it is likely
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other habeas petitions will be filed in our state courts, which impacts ICE’s ability to
enforce federal immigration law.
Resolution of the Sheriff’s appeal potentially affects many other detainees,
local law enforcement agencies, ICE, and other court and public officers and
employees. For the reasons above and in the interest of the public, we review the
Sheriff’s appeal. See Randolph, 325 N.C. at 701, 386 S.E.2d at 186; Corkum, 224 N.C.
App. at 132, 735 S.E.2d at 423.
B. Judicial Notice of 287(g) Agreement
The Sheriff included the 287(g) Agreement between his office and ICE in the
record to this Court to support his arguments on appeal. Notwithstanding the
multiple prior rulings on this issue, Petitioners argue this Court should not consider
the 287(g) Agreement between the Sheriff and ICE in deciding the matter because
the 287(g) Agreement was not submitted to the superior court.
As previously ruled upon by the superior court and this Court, the 287(g)
Agreement is properly in the record on appeal and bears upon the issue of whether
the superior court possessed subject matter jurisdiction to consider the petitions and
issue these writs of habeas corpus. An appellate court may also consider materials
that were not before the lower tribunal to determine whether subject matter
jurisdiction exists. See N.C. ex rel Utils. Comm’n. v. S. Bell Tel., 289 N.C. 286, 288,
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221 S.E.2d 322, 323-24 (1976); N.C. Gen. Stat. § 8C-1, Rule 201(c) (2017) (“A court
may take judicial notice, whether requested or not”).
The device of judicial notice is available to an appellate
court as well as a trial court. This Court has recognized in
the past that important public documents will be judicially
noticed. Consideration of matters outside the record is
especially appropriate where it would disclose that the
question presented has become moot, or academic[.]
S. Bell, 289 N.C. at 288, 221 S.E.2d at 323-24 (internal quotation and citations
omitted).
In Bell, the Supreme Court of North Carolina judicially noticed an order from
the Utilities Commission to assess whether an appeal by a telephone company was
moot. Id.; see also State ex rel. Comm’r of Ins. v. N.C. Auto. Rate Admin. Office, 293
N.C. 365, 381, 239 S.E.2d 48, 58 (1977) (taking judicial notice of the North Carolina
Rate Bureau’s filing with the Commissioner of Insurance).
The 287(g) Agreement between the Sheriff and ICE is a controlling public
document. ICE maintains listings and links to all the current 287(g) agreements it
has entered into with local law enforcement entities across the United States on its
website, including the 28 February 2017 Agreement with the Sheriff. See U.S.
Immigration and Customs Enforcement, Delegation of Immigration Authority Section
287(g) Immigration and Nationality Act, https://www.ice.gov/287g (last visited Oct.
18, 2018).
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As part of the record on appeal and as verified above, we review the 287(g)
Agreement, as an applicable public document, for the purpose of considering the trial
court’s subject matter jurisdiction to rule upon Petitioners’ habeas petitions. See S.
Bell, 289 N.C. at 288, 221 S.E.2d at 323-24. Petitioners’ argument that we should not
consider the 287(g) Agreement because it was not presented to the superior court is
wholly without merit and is dismissed.
C. Superior Court Lacked Subject-Matter Jurisdiction
The Sheriff and Amicus assert the superior court lacked subject matter
jurisdiction to review Petitioners’ habeas petitions, issue writs of habeas corpus, and
order Petitioners’ release. The Sheriff’ argues the superior court “had no jurisdiction
to rule on immigration matters under the guise of using this state’s habeas corpus
statutes, because immigration matters are exclusively federal in nature.” Petitioners
respond and assert the superior court had jurisdiction to issue the writs of habeas
corpus because “the Sheriff and his deputies did not act under color of federal law.”
“Subject matter jurisdiction refers to the power of the court to deal with the
kind of action in question[, and] . . . is conferred upon the courts by either the North
Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353
S.E.2d 673, 675 (1987) (citation omitted). Whether subject matter jurisdiction exists
over a matter is firmly established:
Subject matter jurisdiction cannot be conferred upon a
court by consent, waiver or estoppel, and failure to demur
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or object to the jurisdiction is immaterial. The issue of
subject matter jurisdiction may be considered by the court
at any time, and may be raised for the first time on appeal.
In re T.B., 177 N.C. App. 790, 791, 629 S.E.2d 895, 896-97 (2006) (citations and
internal quotation marks omitted).
“The standard of review for lack of subject matter jurisdiction is de novo.” Keith
v. Wallerich, 201 N.C. App. 550, 554, 687 S.E.2d 299, 302 (2009). “In determining
whether subject matter jurisdiction exists, a court may consider matters outside of
the pleadings.” Id.
Before addressing the Sheriff’s argument, we initially address Petitioners’
contention that the superior court could exercise subject matter jurisdiction on these
matters. Petitioners argue “North Carolina law does not permit civil immigration
detention, even where there is a 287(g) agreement[.]”
Pursuant to 8 U.S.C. § 1357(g)(1):
[T]he Attorney General may enter into a written
agreement with a State, or any political subdivision of a
State, pursuant to which an officer . . . of the State . . ., who
is determined by the Attorney General to be qualified to
perform a function of an immigration officer in relation to
the investigation, apprehension, or detention of aliens in
the United States . . . may carry out such function at the
expense of the State . . . to the extent consistent with State
and local law. (emphasis supplied).
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The General Assembly of North Carolina expressly enacted statutory
authority for state and local law enforcement agencies and officials to enter into
287(g) agreements with federal agencies. The applicable statute states:
Where authorized by federal law, any State or local law
enforcement agency may authorize its law enforcement
officers to also perform the functions of an officer under 8
U.S.C. § 1357(g) if the agency has a Memorandum of
Agreement or Memorandum of Understanding for that
purpose with a federal agency. State and local law
enforcement officers authorized under this provision are
authorized to hold any office or position with the applicable
federal agency required to perform the described functions.
(emphasis supplied).
N.C. Gen. Stat. § 128-1.1(c1) (2017). 8 U.S.C. § 1357(g)(1) permits the Attorney
General to enter into agreements with local law enforcement officers to authorize
them to “perform a function of an immigration officer” to the extent consistent with
state law.
Petitioners contend N.C. Gen. Stat. § 162-62 prevents local law enforcement
officers from performing the functions of immigration officers or to assist DHS in civil
immigration detentions. N.C. Gen. Stat. § 162-62 (2017) provides:
(a) When any person charged with a felony or an impaired
driving offense is confined for any period in a county jail
. . . the administrator . . . shall attempt to determine if the
prisoner is a legal resident of the United States by an
inquiry of the prisoner, or by examination of any relevant
documents, or both.
(b) If the administrator . . . is unable to determine if that
prisoner is a legal resident or citizen of the United States
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. . . the administrator . . . shall make a query of
Immigration and Customs Enforcement of the United
States Department of Homeland Security. If the prisoner
has not been lawfully admitted to the United States, the
United States Department of Homeland Security will have
been notified of the prisoner’s status and confinement at
the facility by its receipt of the query from the facility.
(c) Nothing in this section shall be construed to deny bond
to a prisoner or to prevent a prisoner from being released
from confinement when that prisoner is otherwise eligible
for release. (Emphasis supplied).
Petitioners purport to characterize N.C. Gen. Stat. § 162-62(c) as forbidding
sheriffs from detaining prisoners who are subject to immigration detainers and
administrative warrants beyond the time they would otherwise be released from
custody or jail under state law. Petitioners’ assertion of the applicability of this
statute is incorrect.
N.C. Gen. Stat. § 162-62 specifically refers to a sheriff’s duty to inquire into a
prisoner’s immigration status and, if that prisoner is within the country unlawfully,
mandates the sheriff “shall” notify DHS of the prisoner’s “status and confinement.”
Id. N.C. Gen. Stat. § 162-62 does not refer to a 287(g) agreement, federal immigration
detainer requests, administrative warrants or prevent a sheriff from performing
immigration functions pursuant to a 287(g) agreement, or under color of federal law.
See id.
N.C. Gen. Stat. § 162-62(c) only provides that “[n]othing in this section shall be
construed . . . to prevent a prisoner from being released from confinement when that
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prisoner is otherwise eligible for release.” (Emphasis supplied). This statute does not
mandate a prisoner must be released from confinement, only that nothing in that
specific section dealing with reporting a prisoner’s immigration status shall prevent
a prisoner from being released when they are “otherwise eligible.” Id.
N.C. Gen. Stat. § 128-1.1 specifically authorizes state and local law
enforcement officers to enter into 287(g) agreements under 8 U.S.C. § 1357(g) and
perform the functions of immigration officers, including detention of aliens. No
conflict exists in the statutes between N.C. Gen. Stat. §§ 162-62 and 128-1.1.
Even though Petitioners assert these two statutes are inconsistent, N.C. Gen.
Stat. § 128-1.1 controls over N.C. Gen. Stat. § 162-62, as the more specific statute.
“[W]here two statutory provisions conflict, one of which is specific or ‘particular’ and
the other ‘general,’ the more specific statute controls in resolving any apparent
conflict.” Furr v. Noland, 103 N.C. App. 279, 281, 404 S.E.2d 885, 886 (1991).
N.C. Gen. Stat. § 128-1.1 specifically authorizes state and local law
enforcement agencies to enter into agreements with the federal government to
perform the functions of immigration officers under 8 U.S.C. § 1357(g), as present
here. The express language of 8 U.S.C. § 1357(g)(1) lists the “detention of aliens
within the United States” as one of the “function[s] of an immigration officer.”
N.C. Gen. Stat. § 162-62 does not specifically regulate the conduct of sheriffs
acting as immigration officers pursuant to a 287(g) agreement under 8 U.S.C. §
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1357(g), or under color of federal law. Instead, N.C. Gen. Stat. § 162-62 imposes a
specific and mandatory duty upon North Carolina sheriffs, as administrators of
county jails, to inquire, verify, and report a detained prisoner’s immigration status.
N.C. Gen. Stat. § 162-62.
Contrary to Petitioners’ argument, North Carolina law does not forbid state
and local law enforcement officers from performing the functions of federal
immigration officers, but the policy of North Carolina as enacted by the General
Assembly, expressly authorizes sheriffs to enter into 287(g) agreements to permit
them to perform such functions. See N.C. Gen. Stat. § 128-1.1. We reject and overrule
their contention that “North Carolina law does not permit civil immigration
detention, even where there is a 287(g) agreement[.]”
D. Federal Government’s Supreme and Exclusive Authority over Immigration
The Sheriff contends the superior court did not possess subject matter
jurisdiction in these cases. We agree.
The Supremacy Clause of the Constitution of the United States establishes
that the Constitution and laws of the United States “shall be the supreme Law of the
Land.” U.S. Const. art. VI, cl. 2. Nearly 200 years ago, the Supreme Court of the
United States held the Supremacy Clause prevents state and local officials from
taking actions or passing laws to “retard, impede, burden, or in any manner control”
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the execution of federal law. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436, 4
L. Ed. 579 (1819).
“The Government of the United States has broad, undoubted power over the
subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S.
387, 394, 183 L. Ed. 2d 351, 366 (2012). This broad authority derives from the federal
government’s delegated and enumerated constitutional power “[t]o establish an
uniform Rule of Naturalization[.]” U.S. Const. art. I, § 8, cl. 4. “Power to regulate
immigration is unquestionably exclusively a federal power.” DeCanas v. Bica, 424
U.S. 351, 354, 47 L. Ed. 2d 43 (1976), superseded by statute on other grounds as
recognized in Arizona, 567 U.S. at 404, 183 L. Ed. 2d at 372.
The Sheriff cites several other states’ appellate court decisions, which hold
state courts lack jurisdiction to consider petitions for writs of habeas corpus and other
challenges to a detainee’s detention pursuant to the federal immigration authority.
See Ricketts v. Palm Beach County Sheriff, 985 So. 2d 591 (Fla. Dist. Ct. App. 2008);
State v. Chavez-Juarez, 185 Ohio App. 3d 189, 192, 923 N.E.2d 670, 673 (2009).
In Ricketts, the Court of Appeals of Florida addressed a similar situation to the
instant case. Ricketts was arrested on a state criminal charge and detained by the
sheriff. Ricketts, 985 So. 2d at 591. His bond was set at $1,000; however, the sheriff
refused to accept the bond and release Ricketts, due to a federal immigration hold
issued by ICE. Id. As in the present case, Ricketts first sought habeas corpus relief
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in state court. Id. at 592. The trial court denied all relief, reasoning that the issues
were within the exclusive jurisdiction of the federal government. Id.
On appeal, the Court of Appeals of Florida agreed with the trial court “that
appellant cannot secure habeas corpus relief from the state court on the legality of
his federal detainer.” Id. The court reasoned that the constitutionality of his
detention pursuant to the immigration hold “is a question of law for the federal
courts.” Id. at 592-93. The court further explained that “a state court cannot
adjudicate the validity of the federal detainer, as the area of immigration and
naturalization is within the exclusive jurisdiction of the federal government.” Id. at
593 (citing Plyler v. Doe, 457 U.S. 202, 225, 72 L. Ed. 2d. 786, 804 (1982); and
DeCanas, 424 U.S. at 354, 47 L. Ed. 2d at 43 (“Power to regulate immigration is
unquestionably exclusively a federal power”)).
The Court of Appeals of Ohio followed the Florida Court of Appeals’ decision in
Ricketts and reached a similar conclusion in Chavez-Juarez. Chavez was arrested for
operating a vehicle under the influence of alcohol. Chavez-Juarez, 185 Ohio App. at
at 193, 923 N.E.2d at 673. After arraignment, the state court ordered Chavez
released; however, he was held pursuant to a federal immigration detainer, was
turned over to ICE, and deported to Mexico. Id. at 193-94, 923 N.E.2d at 674. His
attorney filed a motion to have ICE officers held in contempt for violating the state
court’s release order. Id. at 194, 923 N.E.2d at 674.
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The trial court concluded that it lacked jurisdiction over ICE and denied the
contempt motion, because the federal courts have pre-emptive jurisdiction over
immigration issues. Id. at 199, 923 N.E.2d at 679. The Ohio Court of Appeals
recognized “Control over immigration and naturalization is entrusted exclusively to
the Federal Government, and a State has no power to interfere.” Id. (quoting Nyquist
v. Mauclet, 432 U.S. 1, 10, 53 L. Ed. 2d 63 (1977)).
The Ohio Court of Appeals affirmed the trial court’s denial of the contempt
motion, and stated:
Under federal regulation, the Clark County Sheriff’s Office
was required to hold Chavez for 48 hours to allow ICE to
assume custody. Chavez’s affidavit indicates that he was
held in state custody for approximately 48 hours after the
trial court released him on his own recognizance. If Chavez
wished to challenge his detention, the proper avenue at
that point would have been to file a petition in the federal
courts, not an action in contempt with the state court,
which did not have the power to adjudicate federal
immigration issues.
Id. at 202, 923 N.E.2d at 680.
We find the reasoning in both Ricketts and Chavez-Juarez persuasive and their
applications of federal immigration law to state proceedings to be correct.
A state court’s purported exercise of jurisdiction to review the validity of
federal detainer requests and immigration warrants infringes upon the federal
government’s exclusive federal authority over immigration matters. See Plyler, 457
U.S. at 225, 72 L. Ed. 2d. at 804; DeCanas, 424 U.S. at 354, 47 L. Ed. 2d at 43. The
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superior court did not possess subject matter jurisdiction, or any other basis, to
receive and review the merits of Petitioners’ habeas petitions, or issue orders other
than to dismiss for lack of jurisdiction, as it necessarily involved reviewing and ruling
on the legality of ICE’s immigration warrants and detainer requests.
E. State Court Lacks Jurisdiction Even Without Formal Agreement
Even if the express 287(g) Agreement between the Sheriff and ICE did not exist
or was invalid, federal law permits and empowers state and local authorities and
officers to “communicate with [ICE] regarding the immigration status of any
individual . . . or otherwise to cooperate with [ICE] in the identification,
apprehension, detention, or removal of aliens not lawfully present in the United
States” in the absence of a formal agreement. 8 U.S.C. § 1357(g)(10)(A)-(B) (emphasis
supplied).
A state court’s purported exercise of jurisdiction to review petitions challenging
the validity of federal detainers and administrative warrants issued by ICE, and to
potentially order alien detainees released, constitutes prohibited interference with
the federal government’s supremacy and exclusive control over matters of
immigration. See U.S. Const. art. I, § 8, cl. 4; U.S. Const. art. VI, cl. 2.; Nyquist, 432
U.S. at 10, 53 L. Ed. 2d at 63; Plyler, 457 U.S. at 225, 72 L. Ed. 2d. at 804; DeCanas,
424 U.S. at 354, 47 L. Ed. 2d at 43.
F. State Court Lacks Jurisdiction to Order Release of Federal Detainees
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An additional compelling reason that prohibits the superior court from
exercising jurisdiction to issue habeas writs to alien petitioners, is a state court’s
inability to grant habeas relief to individuals detained by federal officers acting under
federal authority.
Nearly 160 years ago, the Supreme Court of the United States held in Ableman
v. Booth that “No state judge or court, after they are judicially informed that the party
is imprisoned under the authority of the United States, has any right to interfere
with him, or to require him to be brought before them.” Ableman v. Booth, 62 U.S. (21
How.) 506, 524, 6 L. Ed. 169, 176 (1859).
The Supreme Court of the United States reaffirmed this principle in In re
Tarble, in which the Court stated:
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 such fact appear
upon the application, the writ should be refused.
...
But, after the return is made, and the state judge or court
judicially apprised that the party is in custody under the
authority of the United States, they can proceed no further.
They then know that the prisoner is within the dominion
and jurisdiction of another government, and that neither
the writ of habeas corpus nor any other process issued
under state authority can pass over the line of division
between the two sovereignties. He is then within the
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dominion and exclusive jurisdiction of the United States.
If he has committed an offence against their laws, their
tribunals alone can punish him. If he is wrongfully
imprisoned, their judicial tribunals can release him and
afford him redress.
...
[T]hat the state judge or state court should proceed no
further when it appears, from the application of the party,
or the return made, that the prisoner is held by an officer of
the United States under what, in truth, purports to be the
authority of the United States; that is, an authority the
validity of which is to be determined by the Constitution
and laws of the United States. 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.
In re Tarble, 80 U.S. (13 Wall) 397, 409-11, 20 L. Ed. 597, 601-02 (1871) (emphasis
supplied) (citations omitted).
In sum, if a prisoner’s habeas petition indicates the prisoner is held: (1) under
the authority, or color of authority, of the federal government; and, (2) by an officer
of the federal government under the asserted “authority of the United States”, the
state court must refuse to issue a writ of habeas corpus. See id.
It is undisputed the Sheriff’s continued detention of Petitioners, after they
were otherwise released from state custody, was pursuant to the federal authority
delegated to his office under the 287(g) Agreement. Appendix B of the 287(g)
Agreement states, in relevant part:
This Memorandum of Agreement (MOA) is between the
U.S. Department of Homeland Security’s U.S. Immigration
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and Customs Enforcement (ICE) and the Law Enforcement
[Mecklenburg County Sheriff’s Office] (MCSO), pursuant
to which selected MCSO personnel are authorized to
perform immigration enforcement duties in specific
situations under Federal authority. (Emphasis supplied).
Although the 287(g) Agreement was not attached to Petitioners’ habeas
petitions, the petitions indicated to the court the Sheriff was acting under color of
federal authority, if not actual federal authority. Petitioners’ petitions acknowledge
and specifically assert the Sheriff was purporting to act under the authority of the
United States by detaining them after they would have otherwise been released from
custody for their state criminal charges.
Petitioners’ petitions both acknowledge and assert the Sheriff was detaining
them “at the behest of the federal government.” Petitioners’ habeas petitions refer to
the 287(g) Agreement. Copies of the Form I-200 immigration arrest warrant and
Form I-247A detainer request were attached to Chavez’s habeas petition submitted
to the superior court.
A copy of the Form I-200 warrant was attached to Lopez’s habeas petition, and
the petition itself refers to the existence of the Form I-247A detainer, stating: “the
jail records, which have been viewed by counsel, indicate that there is an immigration
detainer lodged against [Lopez] pursuant to a Form I-247[.]”
Additionally, 8 U.S.C. § 1357(g)(3) indicates state and local law enforcement
officers act under color of federal authority when performing immigration functions
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authorized under a 287(g) agreement. The statute provides: “In performing a
function under this subsection [§ 1357(g)], an officer or employee of a State or political
subdivision of a State shall be subject to the direction and supervision of the Attorney
General [of the United States.]” 8 U.S.C. § 1357(g)(3) (emphasis supplied).
The Sheriff was acting under the actual authority of the United States by
detaining Petitioners under the immigration enforcement authority delegated to him
under the 287(g) Agreement, and under color of federal authority provided by the
administrative warrants and Form I-247A detainer requests for Petitioners issued by
ICE. Petitioners’ own habeas petitions also indicate the Sheriff was acting under
color of federal authority for purposes of the prohibitions against interference by state
courts and state and local officials. See Tarble, 80 U.S. (13 Wall) at 409, 20 L. Ed. at
601.
The next issue is whether the Sheriff was acting as a federal officer under the
287(g) Agreement by detaining Petitioners pursuant to the detainer requests and
administrative warrants. See id. After careful review of state and federal authorities,
no court has apparently decided the issue of whether a state or local law enforcement
officer is considered a federal officer when they are performing immigration functions
authorized under a 287(g) Agreement.
In contexts other than immigration enforcement, several federal district courts
and United States courts of appeal for various circuits have held state and local law
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enforcement officers are “federal officers” when they have been authorized or
deputized by federal law enforcement agencies, such as the Drug Enforcement
Agency, Federal Bureau of Investigation, and the United States Marshals Service.
United States v. Martin, 163 F. 3d 1212, 1214-15 (10th Cir. 1998) (holding that local
police officer deputized to participate in a FBI narcotics investigation is a federal
officer within the meaning of 18 U.S.C. § 115(a)(1)(B) [defining the crime of
threatening to murder a federal law enforcement officer]); United States v. Torres,
862 F.2d 1025, 1030 (3d Cir. 1988) (holding that local police officer deputized to
participate in a DEA investigation is a federal officer within the meaning of 18 U.S.C.
§ 111 [defining the crime of assault on a federal official]); United States v. Diamond,
53 F.3d 249, 251-52 (9th Cir. 1995) (holding that a state official specially deputized
as a U.S. Marshal was an officer of the United States even though he was not
technically a federal employee); DeMayo v. Nugent, 475 F. Supp. 2d 110, 115 (D. Mass.
2007) (“State police officers deputized as federal agents under the DEA constitute
federal agents acting under federal law”), rev’d on other grounds, 517 F. 3d 11 (1st
Cir. 2008).
The United States Court of Appeals for the Fourth Circuit specifically
recognized an employee of the State of North Carolina as being a federal officer for
purposes of the assault on an federal officer statute, when the state employee was
assisting the Internal Revenue Service. United States v. Chunn, 347 F. 2d 717, 721
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(4th Cir. 1965). The Fourth Circuit has also held that under a 287(g) Agreement,
local law enforcement officers effectively become federal officers of ICE, as they are
deputized to perform immigration-related enforcement functions. United States v.
Sosa-Carabantes, 561 F. 3d 256, 257 (4th Cir. 2009) (“The 287(g) Program permits
ICE to deputize local law enforcement officers to perform immigration enforcement
activities pursuant to a written agreement.” (citing 8 U.S.C. § 1357(g)(1))).
The United States Court of Appeals for the Fifth Circuit recently stated,
“Under [287(g) agreements], state and local officials become de facto immigration
officers[.]” City of El Cenizo v. Texas, 890 F. 3d 164, 180 (5th Cir. 2018); see also People
ex rel. Norfleet v. Staton, 73 N.C. 546, 550 (1875) (“[T]here is no difference between
the acts of de facto and de jure officers so far as the public and third persons are
concerned”).
To the extent personnel of the Sheriff’s office were deputized or empowered by
DHS or ICE to perform immigration functions, including detention and turnover of
physical custody, pursuant to the 287(g) Agreement, we find these federal cases
persuasive to conclude the Sheriff was empowered and acting as a federal officer by
detaining Petitioners under the detainer requests and administrative warrants. See
Martin, 163 F.3d at 1214-15; Torres, 862 F. 2d at 1030; Sosa-Carabantes, 561 F. 3d
at 257; El Cenizo, 890 F.3d at 180.
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Petitioners’ habeas petitions clearly disclosed Petitioners were being detained
under express, and color of, federal authority by the Sheriff, who was acting as a de
facto federal officer. See El Cenizo, 890 F. 3d at 180. Under the rule enunciated by
the Supreme Court of the United States in Ableman and expanded upon in Tarble,
the superior court was without jurisdiction, or any other basis, to receive, review, or
consider Petitioners’ habeas petitions, other than to dismiss for want of jurisdiction,
to hear or issue writs of habeas corpus, or intervene or interfere with Petitioner’s
detention in any capacity. Ableman, 62 U.S. (21 How.) at 524, 6 L. Ed. at 176; Tarble,
80 U.S. (13 Wall.) at 409. 20 L. Ed. at 607.
The superior court should have dismissed Petitioners’ petitions for writs of
habeas corpus. See N.C. Gen. Stat. § 17-4(4) (2017) (“Application to prosecute the writ
[of habeas corpus] shall be denied . . . [w]here no probable ground for relief is shown
in the application.”). “When the record shows a lack of jurisdiction in the lower court,
the appropriate action on the part of the appellate court is to arrest judgment or
vacate any order entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273
S.E.2d 708, 711 (1981). The orders of the superior court, which purported to order
the release of Petitioners, are vacated. Id.
The proper jurisdiction and venues where Petitioners may file their habeas
petitions is in the appropriate federal tribunal. See 28 U.S.C. §2241(a); Tarble, 80
U.S. (13 Wall.) at 411, 20 L. Ed. at 602 (“If a party thus held be illegally imprisoned,
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it is for the courts or judicial officers of the United States, and those courts or officers
alone, to grant him release”).
IV. Conclusion
The superior court lacked any legitimate basis and was without jurisdiction to
review, consider, or issue writs of habeas corpus for alien Petitioners not in state
custody and held under federal authority, or to issue any orders related thereon to
the Sheriff. State or local officials and employees purporting to intervene or act
constitutes a prohibited interference with the federal government’s supreme and
exclusive authority over the regulation of immigration and alienage. See U.S. Const.
art. I, § 8, cl. 4; Ableman, 62 U.S. (21 How.) at 524, 6 L. Ed. at 176; Tarble, 80 U.S. at
409. 20 L. Ed. at 607.
The superior court was on notice the Petitioners were detained under the
express, and color of, exclusive federal authority. The Sheriff was acting as a federal
officer under the statutorily authorized and executed 287(g) Agreement. The orders
appealed from are vacated for lack of jurisdiction and remanded to the trial court
with instructions to dismiss Petitioners’ habeas petitions.
A certified copy of this opinion and order shall be delivered to the Judicial
Standards Commission and to the Disciplinary Hearing Commission of the North
Carolina State Bar. It is so ordered.
VACATED and REMANDED.
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Judges DIETZ and BERGER concur.
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