Chavez v. McFadden

IN THE SUPREME COURT OF NORTH CAROLINA
No. 437PA18
Filed 5 June 2020

CARLOS CHAVEZ and LUIS LOPEZ, Petitioners,

v.
GARY McFADDEN, SHERIFF, MECKLENBURG COUNTY, Respondent.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 262 N.C. App. 196, 822 S.E.2d 121 (2018), vacating and

remanding orders entered on 13 October 2017 by Judge Yvonne Mims Evans in

Superior Court, Mecklenburg County. Heard in the Supreme Court on 4 November

2019.

Goodman Carr, PLLC, by Rob Heroy, and Sejal Zota, for petitioners-appellants

Womble Bond Dickinson (US) LLP, by Sean F. Perrin, for respondent-appellee

Deborah M. Weissman, for Law Scholars and National Immigrant Justice
Center, amici curiae

Raul A. Pinto, for North Carolina Justice Center, amicus curiae

Irena Como, Katrina Braun, Omar Jadwat, Cody Wofsy, Daniel Galindo, and
Spencer Amdur, for American Civil Liberties Union Foundation (ACLU) and
ACLU of North Carolina, et al., amici curiae

Joshua S. Press, for United States Department of Justice, amicus curiae

ERVIN, Justice.
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Opinion of the Court

The question before us in this case is whether state judicial officials acting in

counties in which the Sheriff has entered into a 287(g) agreement with the federal

government have the authority to grant applications for the issuance of writs of

habeas corpus for and to order the release of individuals held pursuant to

immigration-related arrest warrants and detainers. After a thorough review of the

record, briefs, and arguments made by the parties, we conclude that the trial court

erred by ordering the release of petitioners Carlos Chavez and Luis Lopez because

the record establishes that petitioners were held under a claim of federal authority

that the trial court was required to respect. In light of that and other determinations,

we modify and affirm the decision of the Court of Appeals, in part; reverse that

decision, in part; vacate that decision, in part; and remand this case to the Court of

Appeals with instructions that this case be remanded to the Superior Court,

Mecklenburg County, with instructions to deny petitioners’ requests for the issuance

of writs of habeas corpus and to be discharged from custody.

On 28 February 2017, then-Sheriff of Mecklenburg County, Irwin Carmichael,

entered into a written agreement with the United States Immigration and Customs

Enforcement, an entity housed within the Department of Homeland Security,

pursuant to § 287(g) of the Immigration and Nationality Act, codified at 8 U.S.C. §

1357(g) (1996), as amended by the Homeland Security Act of 2002, Public Law 107-

296. In accordance with the provisions of this agreement, certified Mecklenburg

County deputies, subject to the direction and supervision of the Attorney General of

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Opinion of the Court

the United States, were authorized to perform specific immigration enforcement

functions, including, among others, the investigation, apprehension, and detention of

undocumented aliens “to the extent consistent with State and local law.” 8 U.S.C. §

1357(g)(1)–(3), (5) (2018).

On 5 June 2017, petitioner Lopez was being held in pretrial detention in the

Mecklenburg County Jail based upon common law robbery, conspiracy, resisting a

public officer, and misdemeanor breaking or entering charges. On 5 July 2017, the

District Attorney’s office voluntarily dismissed the common law robbery, conspiracy,

and resisting a public officer charges on the grounds of insufficient evidence. At that

point, petitioner Lopez remained subject to a $400.00 secured bond in connection with

the misdemeanor breaking or entering charge, which was the only charge that was

still pending against him. On 13 August 2017, petitioner Chavez was arrested and

placed in pretrial detention in the Mecklenburg County Jail subject to a $100.00 cash

bond for driving while impaired, driving without an operator’s license, interfering

with emergency communications, and assault on a female. At approximately 9:00

a.m. on 13 October 2017, both petitioners became eligible for release when petitioner

Lopez’s $400.00 bond was modified from a secured to an unsecured bond and someone

posted petitioner Chavez’s $100.00 bond. Even so, the Sheriff continued to hold both

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Opinion of the Court

petitioners in the Mecklenburg County Jail pursuant to immigration-related arrest

warrants and detainers.1

On the morning of 13 October 2017, an investigator employed by the Public

Defender’s Office sent an e-mail to the Sheriff’s General Counsel bearing the subject

line “Heads up-Important” for the purpose of informing the General Counsel that

emergency writs of habeas corpus relating to petitioners would be submitted later

that day. At 9:12 a.m., both petitioners filed petitions seeking the issuance of a writ

of habeas corpus based upon assertions that their continued detention in the

Mecklenburg County Jail was unlawful because: (1) “the detainer[s] lack[ed]

probable cause, [were] not [ ] warrant[s], and ha[d] not been reviewed by a judicial

official” in violation of the Fourth Amendment to the United States Constitution; (2)

the Sheriff “lack[ed] authority under North Carolina General Statutes to continue to

detain [p]etitioner[s] after all warrants and sentences ha[d] been served”; and (3) the

Sheriff’s “honoring of ICE’s request[s] for detention violate[d] the anti-

commandeering principles of the Tenth Amendment.”

1 A Form I-200, which is entitled “Warrant of Arrest,” is an administrative arrest
warrant issued against aliens for civil immigration violations by an authorized immigration
officer. 8 C.F.R. § 236.1(b)(1) (2019); see also 8 U.S.C. § 1226 (2018). A Form I-247A is an
“Immigration Detainer-Notice of Action” that “serves to advise another law enforcement
agency that [DHS] seeks custody of an alien presently in the custody of that agency, for the
purpose of arresting and removing the alien,” and “request[s] that such agency advise [DHS],
prior to release of the alien, in order for [DHS] to arrange to assume custody, in situations
when gaining immediate physical custody is either impracticable or impossible.” 8 C.F.R. §
287.7(a) (2019). As a general proposition, the detaining “agency shall maintain custody of
the alien for a period not to exceed 48 hours.” Id. § 287.7(d).

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Opinion of the Court

At 9:30 a.m., the General Counsel forwarded the investigator’s e-mail to Sheriff

Carmichael; Sean Perrin, the Sheriff’s outside legal counsel; Donald Belk, a captain

serving in the Mecklenburg County Jail; and eight other individuals in which the

General Counsel stated that “I do not acknowledge receipt of [the investigator’s]

emails on this topic.” At 9:37 a.m., Captain Belk responded to the General Counsel’s

e-mail by indicating that the office of the Clerk of Superior Court of Mecklenburg

County had advised him that the cases “are on in [Courtroom] 5350 this morning,”

that petitioner Lopez remained in the Sheriff’s custody, and that, since petitioner

Chavez had already been turned over to ICE, he “should not go to court.”

On the same morning, the trial court issued writs of habeas corpus ordering

that petitioners be “immediately brought before a judge . . . to determine the legality

of [their] confinement” and requiring the Sheriff to “immediately appear and file a

return.” Following the issuance of the trial court’s order, the investigator attempted

to serve it at the Sheriff’s office. After the front desk employee at the Sheriff’s Office

refused to accept service, the investigator left the trial court’s orders at the front desk.

In addition, the investigator served copies of the trial court’s orders upon the

personnel working at Mecklenburg County jail, the Sheriff’s outside legal counsel, the

office of ICE’s Chief Counsel, and an assistant district attorney.

At 11:57 a.m., a further hearing was held before the trial court at which the

Sheriff did not appear, either in person or through counsel. In addition, the Sheriff

did not file a return or produce either petitioner before the trial court. At 12:08 p.m.,

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Opinion of the Court

the trial court entered orders finding that both petitioners were being unlawfully

detained and ordering that they be discharged from the Sheriff’s custody.

At 2:58 p.m., the Sheriff filed written returns relating to both petitioners. The

return filed with respect to petitioner Chavez stated that, while he was being held in

“exclusive” federal custody, he was physically incarcerated in the Mecklenburg

County Jail. The return filed with respect to petitioner Lopez stated that, “[a]t the

time of the [p]etitioner’s filing,” he was being held in state custody and detained in

the Mecklenburg County Jail pursuant to a $400.00 secured bond for misdemeanor

breaking or entering and an arrest warrant and detainer that had been issued by

DHS. The Sheriff declined to release either petitioner and eventually delivered them

to ICE custody.

On 6 November 2017, the Sheriff filed petitions seeking the issuance of writs

of certiorari with the Court of Appeals authorizing review of the trial court’s orders

and the issuance of a writ of prohibition to preclude the trial court from ruling upon

any further habeas corpus petitions relating to the lawfulness of the continued

detention of persons subject to immigration-related detainers or arrest warrants. On

22 December 2017, the Court of Appeals entered an order allowing the Sheriff’s

certiorari petitions and prohibiting “the trial court . . . from issuing a writ of habeas

corpus ordering the release of a person detained by the Sheriff” pursuant to a 287(g)

agreement and “from entering any orders or sanctions limiting the authority of the

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Sheriff and his officers or agents, or any officer or agent of the United States, from

carrying out the acts permitt[ed] by the agreement.”

In seeking relief from the trial court’s orders before the Court of Appeals, the

Sheriff argued that the trial court lacked “jurisdiction to rule on federal immigration

matters.” In addition, the Sheriff contended that the trial court had erred by ordering

that petitioners be released “because [they] were being exclusively detained on

United States Department of Homeland Security detainers and administrative

warrants.” In response, petitioners contended that the Court of Appeals should

dismiss the Sheriff’s appeal on the grounds that the Sheriff had waived the right to

assert the arguments that he was now seeking to make on appeal given that he had

failed to raise them before the trial court and, in the alternative, because the case

was moot. In attempting to persuade the Court of Appeals to uphold the challenged

trial court orders, petitioners argued that the trial court had ample authority to rule

upon the merits of their petitions because neither petitioner was being held in federal

custody at the time that the relevant orders had been entered. More specifically,

petitioners contended that: (1) the 287(g) agreement was not properly before the

court; (2) neither federal nor state law authorized the Sheriff to detain petitioners for

civil immigration purposes; (3) both petitioners remained in state custody when the

trial court authorized their release; and (4) the record evidence failed to demonstrate

that either petitioner was being lawfully held in DHS custody. Finally, petitioners

argued that the Court of Appeals should dismiss the Sheriff’s appeal because his

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Opinion of the Court

continued detention of petitioners violated their rights under North Carolina law and

the state and federal constitutions.

On 6 November 2018, the Court of Appeals filed an opinion vacating the

challenged trial court orders on the grounds that the trial court “lacked any legitimate

basis and was without jurisdiction to review, consider, or issue writs of habeas corpus

for alien [p]etitioners not in state custody and held under federal authority, or to issue

any orders related thereon to the Sheriff.” Chavez v. Carmichael, 262 N.C. App. 196,

216, 822 S.E.2d 131, 145 (2018). As an initial matter, the Court of Appeals

determined that the Sheriff’s appeal was not subject to dismissal for mootness on the

grounds that this case was subject to the public interest exception to the mootness

doctrine. Id. at 203–04, 822 S.E.2d at 137–38 (stating that “[t]he 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”). According

to the Court of Appeals, “[p]rompt resolution of this issue [wa]s essential because it

is likely other habeas petitions will be filed in our state courts, which impacts ICE’s

ability to enforce federal immigration law.” Id. at 204, 822 S.E.2d at 138.

The Court of Appeals concluded, in addressing the merits, that the trial court

lacked subject matter jurisdiction to issue writs of habeas corpus in instances like

this one. Id. at 206–09, 822 S.E.2d at 139–41. In reaching this conclusion, the Court

of Appeals held that “North Carolina law does not forbid state and local law

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Opinion of the Court

enforcement officers from performing the functions of federal immigration officers”

and that “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.” Id. at 209, 822 S.E.2d at 140 (citing N.C.G.S. § 128-1.1 (2017)). In

addition, the Court of Appeals held that the trial court lacked jurisdiction to issue

writs of habeas corpus in these cases because “[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.” Id. at 211, 822 S.E.2d at 142. The Court of Appeals also held

that North Carolina courts lacked the authority to entertain petitions seeking the

issuance of writs of habeas corpus applicable to individuals held in federal custody

even if the relevant sheriff had not entered into a 287(g) agreement with ICE given

that any such review of the lawfulness of immigration-related detentions

“constitute[d] prohibited interference with the federal government’s supremacy and

exclusive control over matters of immigration.” Id. at 211–12, 822 S.E.2d at 142.

Finally, the Court of Appeals held that petitioners had the status of detainees being

held in federal custody and that the trial court lacked jurisdiction to order their

release because the Sheriff, in detaining petitioners, was acting under the actual

authority of the United States granted to him pursuant to the 287(g) agreement,

under color of federal authority arising from the warrants and detainer requests, and

as a federal officer for purposes of the 287(g) agreement. Id. at 213–16, 822 S.E.2d

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Opinion of the Court

at 143–45. As a result, the Court of Appeals held that the trial court had been

“without jurisdiction, or any other basis, to receive, review, or consider [p]etitioners’

habeas petitions, other than to dismiss for want of jurisdiction, to hear or issue writs

of habeas corpus, or intervene or interfere with [p]etitioner[s’] detention in any

capacity,” and remanded this case with instructions that petitioners’ habeas corpus

petitions be dismissed. Id. at 216–17, 822 S.E.2d at 145. On 27 March 2019, this

Court allowed petitioners’ petition seeking discretionary review of the Court of

Appeals’ decision.2

In seeking to convince us that the Court of Appeals erred by vacating the

challenged trial court orders, petitioners argue that the Court of Appeals effectively

“issued an advisory opinion in a moot case.” More specifically, petitioners contend

that, “[a]fter refusing to respond to the noticed-writ issued by the superior court, and

handing [p]etitioners over to ICE custody for deportation in contravention of that

court’s release order, the sheriff appealed the very release order it had willfully

mooted in an attempt to obtain an after-the-fact advisory opinion supporting its

2 On 4 December 2018, Gary McFadden was sworn in as Sheriff of Mecklenburg
County and terminated his office’s 287(g) agreement with ICE on the following day. See Jane
Webster, New sheriff tells ICE he’ll end controversial jail immigration program in
Mecklenburg, The Charlotte Observer (Dec. 5, 2018 11:11 AM), https://perma.cc/RY8K-
MXUW. Sheriff McFadden is substituted for former Sheriff Carmichael as the named
respondent in this case pursuant to N.C.R. App. P. 38(c) (stating that, “[w]hen a person is a
party to an appeal in an official or representative capacity and during its pendency dies,
resigns, or otherwise ceases to hold office, the action does not abate and the person’s successor
is automatically substituted as a party”). Sheriff McFadden did not oppose the allowance of
petitioners’ discretionary review petition.

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conduct.” According to petitioners, the Court of Appeals erred by holding that the

public interest exception to the mootness doctrine applied in this case, with

petitioners expressing the inability to “imagine worse-suited circumstances for

application of the discretionary public-interest exception” given that “the public

interest exception does not overrule the long-standing rule . . . that our state’s

appellate courts are not the proper forum for seeking advisory opinions.” In addition,

petitioners assert that the Court of Appeals erred by reaching the merits of the

Sheriff’s challenge to the relevant trial court orders on the grounds that “the sheriff

did not preserve his arguments” and had “defaulted by willfully failing to appear and

to present evidence in the trial court.”

As far as the merits of this case are concerned, petitioners argue that the trial

court “retained jurisdiction to determine if [p]etitioners were in lawful state custody,

and correctly found no evidence of federal custody.” According to petitioners, the trial

court had “the jurisdiction to review a habeas petition to determine whether the

individual is in lawful state custody,” with the trial court having “correctly

determined that [petitioners] were not in federal custody because the sheriff brought

no evidence to support that claim.” Finally, petitioners argue that “the Court of

Appeals erred in concluding that the trial court lacked jurisdiction even if the 287(g)

agreement was invalid” on the grounds that its decision to this effect “was

unnecessary to its conclusions.” In support of this assertion, petitioners contend that

“the trial court had subject matter jurisdiction to review the habeas petitions under

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state law” and that it “correctly determined that [p]etitioners were not in lawful state

custody because state law does not authorize detainer arrests in the absence of a

287(g) agreement.”

In seeking to convince this Court to uphold the Court of Appeals’ decision in

his favor, the Sheriff argues that the Court of Appeals “correctly addressed the merits

of the case” on the grounds that “the public interest exception to mootness applies.”

In addition, the Sheriff contends that the exception to the mootness doctrine

applicable to cases that are “capable of repetition, yet evading review,” is applicable

to this case as well. Moreover, the Sheriff argues that “the Court of Appeals’ holding

that a state trial court cannot rule on the legality of a federal immigration arrest

warrant and detainer in the absence of a 287(g) agreement was dicta” given that both

petitioners were detained pursuant to a 287(g) agreement. The Sheriff denies having

waived the right to challenge the lawfulness of the trial court’s orders on appeal given

that any party can raise the issue of jurisdiction at any time and given that the Court

of Appeals allowed the Sheriff’s certiorari petitions.

In addressing the merits of petitioners’ challenge to the Court of Appeals’

decision, the Sheriff argues that “the trial court did not have subject matter

jurisdiction to rule on the legality of administrative immigration arrest warrants and

detainers.” In the Sheriff’s view, when local officers act pursuant to a 287(g)

agreement, they are functioning “as federal immigration officials,” with a state

judicial official lacking any authority to “issue writs against federal officials.” The

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Sheriff contends that “the federal government has exclusive jurisdiction over

immigration issues in both 287(g) jurisdictions and non 287(g) jurisdictions” and that,

since individuals detained pursuant to immigration arrest warrants and detainers

are being held in federal custody, “state habeas statutes cannot be used to undermine

the federal government’s exclusive jurisdiction over immigration issues.”

As a general proposition, North Carolina appellate courts do not decide moot

cases. In re A.K., 360 N.C. 449, 452, 628 S.E.2d 753, 755 (2006) (stating that this

Court will usually “decide a case only if the controversy which gave rise to the action

continues at the time of appeal” (citing In re Peoples, 296 N.C. 109, 148, 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)

(quoting Moot Case, Black’s Law Dictionary (6th ed. 1990)); see also Knox v. Serv.

Emps. Int’l Union, Local 1000, 567 U.S. 298, 307, 132 S. Ct. 2277, 2287, 183 L. Ed.

2d 281, 295 (stating that “[a] case becomes moot only when it is impossible for a court

to grant any effectual relief whatever to the prevailing party” (cleaned up) (quoting

City of Erie v. Pap’s A. M., 529 U.S. 277, 287, 120 S. Ct. 1382, 1390, 146 L. Ed. 2d

265, 277 (2000))). “In state courts the exclusion of moot questions from determination

is not based on a lack of jurisdiction but rather represents a form of judicial restraint.”

Cape Fear River Watch v. N.C. Envtl Mgmt. Comm’n, 368 N.C. 92, 100, 772 S.E.2d

445, 450 (2015) (quoting Peoples, 296 N.C. at 147, 250 S.E.2d at 912). Our purpose

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Opinion of the Court

in exercising such restraint is to ensure that this Court does not “determine matters

purely speculative, enter anticipatory judgments, declare social status, deal with

theoretical problems, give advisory opinions, answer moot questions, adjudicate

academic matters, provide for contingencies which may hereafter arise, or give

abstract opinions.” Little v. Wachovia Bank & Tr. Co., 252 N.C. 229, 243, 113 S.E.2d

689, 700 (1960), overruled on other grounds by Citizens Nat’l Bank v. Grandfather

Home for Children, Inc., 280 N.C. 354, 185 S.E.2d 836 (1972). As a general

proposition, cases that have become moot should be dismissed. Benvenue Parent-

Teacher Ass’n v. Nash Cty. Bd. of Educ., 275 N.C. 675, 679, 170 S.E.2d 473, 476

(1969).

The mootness doctrine is subject to exceptions, including the public interest

exception, upon which the Court of Appeals relied, and the “capable of repetition, yet

evading review” exception, to which the Sheriff has referred in his brief before this

Court. According to the first of these two exceptions, “this court may, if it chooses,

consider a question that involves a matter of public interest, is of general

importance[,] and deserves prompt resolution.” Cape Fear, 368 N.C. at 100, 772

S.E.2d at 450 (quoting N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d

185, 186 (1989) (per curiam)). A case is “capable of repetition, yet evading review,”

when the underlying conduct upon which the relevant claim rests is necessarily of

such limited duration that the relevant claim cannot be fully litigated prior to its

cessation and the same complaining party is likely to be subject to the same allegedly

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unlawful action in the future. Cooper v. Berger, 370 N.C. 392, 421, 809 S.E.2d 98,

116 (2018) (citing Shell Island Homeowners Ass’n v. Tomlinson, 134 N.C. App. 286,

292, 517 S.E.2d 401, 405 (1999)).

As all parties have conceded, the fact that both petitioners have already been

turned over to federal immigration authorities renders this case moot. However, we

agree with the Court of Appeals that this case comes within the scope of the public

interest exception to the mootness doctrine. There can be no question but that issues

relating to both lawful and unlawful immigration have become the subject of much

debate in North Carolina in recent years.3 In addition, publicly available information

provided by ICE indicates that it continues to maintain 287(g) agreements with six

North Carolina law enforcement agencies.4 As a result of the public interest

3 The General Assembly has considered legislation addressing the issue of whether
North Carolina sheriffs should be required to cooperate with immigration-related arrest
warrants and detainers. See H.B. 370, An Act to Require Compliance with Immigration
Detainers and Administrative Warrants, N.C. Gen. Assemb., 2019 Sess. (N.C. 2019),
https://perma.cc/8PR3-SNH7. On 20 August 2019, the General Assembly ratified H.B. 370.
Id. On the following day, however, Governor Roy Cooper vetoed that piece of legislation.
Governor Cooper Vetoes HB 370, NC Governor Roy Cooper (Aug. 21, 2019),
https://perma.cc/6SR9-H9Q8. In addition, news media reports reflect that a number of
candidates for sheriff “in North Carolina’s largest counties won election in 2018 after making
high-profile promises not to work with federal immigration agents” by ending 287(g)
agreements. Will Doran and Virginia Bridges, Some NC sheriffs won’t work with ICE. This
GOP-backed bill would force them to, The News & Observer (March 15, 2019, 5:16 PM),
https://perma.cc/C8TB-SVSN.
4 According to the ICE website, “[a]s of May 2020,” the agency has 287(g) agreements
with eight law enforcement agencies in North Carolina: Alamance County, Cabarrus County,
Cleveland County, Gaston County, Henderson County, Nash County, Randolph County, and
Rockingham County. Delegation of Immigration Authority Section 287(g) Immigration and
Nationality Act, U.S. Immigration and Customs Enforcement, https://perma.cc/JQC3-SBFC
(last updated May 27, 2020).

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surrounding this issue and the fact that several law enforcement agencies across our

State continue to operate pursuant to 287(g) agreements, we believe that the Court

should reach the merits of the issues that are before us in this case given the

likelihood that issues similar to those that have been debated by the parties to this

case will continue to arise in the future. Moreover, while the “capable of repetition,

yet evading review” exception to the mootness doctrine is technically not available in

this case given the absence of any indication that petitioners are likely to find

themselves in the same situation that they confronted in this case in the future, the

fact that the same issues could arise in the future in jurisdictions that continue to be

parties to 287(g) agreements with ICE provides additional support for our conclusion

that the public interest exception to the mootness doctrine exists in this case. As a

result, we will now proceed to address the merits of the substantive issues that are

before us in this case.

The North Carolina Constitution provides that “[e]very person restrained of

his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove

the restraint if unlawful, and that remedy shall not be denied or delayed,” N.C. Const.

art. I, § 21; see also N.C.G.S. § 17-1 (2019), with the “privilege of the writ of habeas

corpus” not being subject to suspension. N.C. Const. art. I, § 21; see also N.C.G.S.

§ 17-2 (2019). “Every person imprisoned or restrained of his liberty within this State,

for any criminal or supposed criminal matter, or on any pretense whatsoever . . . may

prosecute a writ of habeas corpus.” N.C.G.S. § 17-3 (2019). A petition seeking the

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issuance of a writ of habeas corpus “is the proper method by which a prisoner may

challenge his incarceration as being unlawful.” State v. Parks, 290 N.C. 748, 751, 228

S.E.2d 248, 250 (1976) (citing In re Burton, 257 N.C. 534, 540, 126 S.E.2d 581, 586

(1962)).

An application for the issuance of a writ of habeas corpus, made by a party or

any other person on that person’s behalf, N.C.G.S. § 17-5 (2019), directed to any

superior court or appellate judge in this State, id. § 17-6, must allege, among other

things, that the party “is imprisoned or restrained of his liberty,” the location of the

party’s imprisonment, the person restraining the imprisoned party, “[t]he cause or

pretense of such imprisonment or restraint,” and any supporting documents. Id. §

17-7(1)–(3). After a party applies for the writ, any judge empowered to do so “shall

grant the writ without delay, unless it appear from the application itself or from the

documents annexed that the person applying or for whose benefit it is intended is, by

this Chapter, prohibited from prosecuting the writ.” Id. § 17-9. If the judge issues

the writ of habeas corpus, “[t]he person or officer on whom the writ is served must

make a return thereto in writing,” either immediately or within a certain period of

time as designated by the judge, id. §§ 17-13, -14, stating whether the individual upon

whom the writ is served “has or has not the party in his custody or under his power

or restraint” and, if so, “the authority and the cause of such imprisonment or

restraint” along with any documents supporting the imprisonment or restraint. Id.

§ 17-14(1)–(3). After the return has been made, the judge shall

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examine into the facts contained in such return, and into
the cause of the confinement or restraint of such party,
whether the same has been upon commitment for any
criminal or supposed criminal matter or not; and if issue be
taken upon the material facts in the return, or other facts
are alleged to show that the imprisonment or detention is
illegal, or that the party imprisoned is entitled to his
discharge, the court or judge shall proceed, in a summary
way, to hear the allegations and proofs on both sides, and
to do what to justice appertains in delivering, bailing or
remanding such party.

Id. § 17-32. A party petitioning for the issuance of a writ of habeas corpus shall be

discharged “[i]f no legal cause is shown for such imprisonment or restraint, or for the

continuance thereof.” Id. § 17-33. Although no appeal as of right lies from an order

entered in a habeas corpus proceeding, appellate review of such orders is available

“by petition for certiorari addressed to the sound discretion of the appropriate

appellate court.” State v. Niccum, 293 N.C. 276, 278, 238 S.E.2d 141, 143 (1977)

(citations omitted).

Any examination of the nature and extent of a state court’s authority to

entertain an application for the issuance of a writ of habeas corpus made by an

individual detained by a local law enforcement agency pursuant to immigration-

related arrest warrants and detainers necessarily involves recognition of the fact that

federal law is entitled to take precedence over state law, particularly in the

immigration arena. According to the Supreme Court of the United States, “[t]he

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,

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132 S. Ct. 2492, 2498, 183 L. Ed. 2d 351, 366 (2012) (citing Toll v. Moreno, 458 U.S.

1, 10, 102 S. Ct. 2977, 2982, 73 L. Ed. 2d 563, 571–72 (1982)), with this “broad,

undoubted power” having its source in the constitutional provision authorizing

Congress “[t]o establish [a] uniform Rule of Naturalization.” U.S. Const. art. I, § 8,

cl. 4. Acting in reliance upon this grant of authority, Congress has enacted “extensive

and complex” legislation concerning immigration, Arizona, 567 U.S. at 395, 132 S. Ct.

at 2499, 183 L. Ed. 2d at 366, with those laws constituting “the supreme Law of the

Land,” U.S. Const. art. VI, cl. 2, and having the effect of preempting state law.

Arizona, 567 U.S. at 399, 132 S. Ct. at 2500, 183 L. Ed. 2d at 368 (citations omitted).

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,”

Toll, 458 U.S. at 10, 102 S. Ct. at 2982, 73 L. Ed. 2d at 571, state court judges cannot

interfere with the custody and detention of individuals held pursuant to federal

authority. The Supreme Court of the United States outlined the applicable principles

over a century ago. On 10 August 1869, a court commissioner in Dane County,

Wisconsin issued a writ of habeas corpus ordering the discharge of Edward Tarble,

who was held in the custody of Lieutenant Stone, a recruiting officer for the United

States Army, on the grounds that Mr. Tarble had attempted to enlist in the Army

while under the age of eighteen and without the consent of his father. Tarble’s Case,

80 U.S. 397, 397–98, 20 L. Ed. 597, 598 (1872). After ordering Lieutenant Stone to

bring Mr. Tarble before him at once and to provide a justification for his detention,

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id. at 398, 20 L. Ed. at 598, the commissioner, following a hearing, “held that the

prisoner was illegally imprisoned and detained by Lieutenant Stone, and commanded

that officer forthwith to discharge him from custody.” Id. at 399, 20 L. Ed. at 598.

Following a decision of the Wisconsin Supreme Court affirming the commissioner’s

discharge order, id. at 399–400, 20 L. Ed. at 598, the United States sought and

obtained review by the Supreme Court, id. at 400, 20 L. Ed. at 598, which held that

“no State can authorize one of its judges or courts to exercise judicial power, by habeas

corpus or otherwise, within the jurisdiction of another and independent government,”

id. at 405, 20 L. Ed. at 600, and that, “although the State of Wisconsin is sovereign

within its territorial limits to a certain extent, yet that sovereignty is limited and

restricted by the Constitution of the United States.” Id. at 405–06, 20 L. Ed. at 600.

The Supreme Court further noted that, while the federal and state governments

exercise their powers “within the same territorial limits,” they “are yet separate and

distinct sovereignties, acting separately and independently of each other, within their

respective spheres.” Id. at 406, 20 L. Ed. at 600. Although “[n]either government can

intrude within the jurisdiction, or authorize any interference therein by its judicial

officers with the action of the other,” when any conflict arises between the two

governments, federal law is “the supreme law of the land.” Id. In light of these

fundamental legal principles, the Supreme Court stated that;

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

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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. If it do not appear, the judge or court issuing the
writ has a right to inquire into the cause of imprisonment,
and ascertain by what authority the person is held within
the limits of the State; and it is the duty of the marshal, or
other officer having the custody of the prisoner, to give, by
a proper return, information in this respect. His return
should be sufficient, in its detail of facts, to show distinctly
that the imprisonment is under the authority, or claim and
color of the authority, of the United States, and to exclude
the suspicion of imposition or oppression on his part. And
the process or orders, under which the prisoner is held,
should be produced with the return and submitted to
inspection, in order that the court or judge issuing the writ
may see that the prisoner is held by the officer, in good
faith, under the authority, or claim and color of the
authority, of the United States, and not under the mere
preten[s]e of having such authority.

. . . 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 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]he 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

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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.

Id. at 409–11, 20 L. Ed. at 601–02 (cleaned up). See also Ex parte Royall, 117 U.S.

241, 249, 6 S. Ct. 734, 739, 29 L. Ed. 868, 870–71 (1886) (stating that “the courts and

judges of the several States . . . cannot, under any authority conferred by the States,

discharge from custody persons held by authority of the courts of the United States,

or of commissioners of such courts, or by officers of the General Government acting

under its laws” (citations omitted)). As a result, the Supreme Court reversed the

decision of the Wisconsin Supreme Court on the grounds that “[t]he commissioner

was, both by the application for the writ and the return to it, apprised that the

prisoner was within the dominion and jurisdiction of another government, and that

no writ of habeas corpus issued by him could pass over the line which divided the two

sovereignties.” Tarble’s Case, 80 U.S. at 412, 20 L. Ed. at 602.

In the exercise of its constitutional power over immigration, Congress enacted

the Immigration and Nationality Act. 8 U.S.C. §§ 1101–1537 (2018). According to

that congressional enactment, state officers and employees are authorized to perform

the functions of a federal immigration officer pursuant to an agreement between the

federal government and a state or local law enforcement agency. Id. § 1357(g)(1)

(stating that “the Attorney General may enter into a written agreement with a State,

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Opinion of the Court

or any political subdivision of a State, pursuant to which an officer or employee of the

State or subdivision, 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 (including the

transportation of such aliens across State lines to detention centers), may carry out

such function at the expense of the State or political subdivision and to the extent

consistent with State and local law”). Any such agreement shall provide that any

local officer acting pursuant to such an agreement “shall have knowledge of, and

adhere to, Federal law relating to the function, and shall contain a written

certification that the officers or employees performing the function under the

agreement have received adequate training regarding the enforcement of relevant

Federal immigration laws.” Id. § 1357(g)(2). While acting pursuant to such an

agreement, the officer “shall be subject to the direction and supervision of the

Attorney General.” Id. § 1357(g)(3). The General Assembly has, in turn, determined

that “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. Section 1357(g) if

the agency has a Memorandum of Agreement or Memorandum of Understanding for

that purpose with a federal agency,” with “[s]tate and local law enforcement officers

authorized under this provision [being] authorized to hold any office or position with

the applicable federal agency required to perform the described functions.” N.C.G.S.

§ 128-1.1(c1) (2019). As a result, local and state law enforcement officers performing

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Opinion of the Court

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. See United States v. Sosa-Carabantes,

561 F.3d 256, 257 (4th Cir. 2009) (stating that “[t]he 287(g) Program permits ICE to

deputize local law enforcement officers to perform immigration enforcement activities

pursuant to a written agreement”); see also City of El Cenizo v. Texas, 890 F.3d 164,

180 (5th Cir. 2018) (stating that “[u]nder these [287(g)] agreements, state and local

officials become de facto immigration officers, competent to act on their own

initiative”).5

5 The decision of the Court of Appeals contained a discussion of the extent to which a
sheriff who had not entered into a 287(g) agreement with the federal government was entitled
to detain individuals pursuant to immigration-related arrest warrants or detainers.
However, the question of whether a trial court had the authority to entertain an application
for the issuance of a writ of habeas corpus petition seeking the release of an individual held
under immigration-related arrest warrants and detainers by sheriffs who were not parties to
a 287(g) agreement was not before the Court of Appeals in this case given that former Sheriff
Carmichael had entered into a 287(g) agreement and allegedly claimed to have been acting
pursuant to that agreement at the time that he detained petitioners. As a result, any portion
of the Court of Appeals’ opinion that addresses the authority of sheriffs who had not entered
into 287(g) agreements with the federal government to act on the basis of immigration-
related arrest warrants and detainers constitutes mere dicta that has no binding effect in
future cases. See Hayes v. City of Wilmington, 243 N.C. 525, 536–37, 91 S.E.2d 673, 682
(1956) (stating that statements in an opinion which are “superfluous and not needed for the
full determination of the case” are dicta and “not entitled to be accounted a precedent”
(citation omitted)). As a result, in the interest of clarity, we vacate those portions of the Court
of Appeals’ opinion that address the authority of North Carolina sheriffs who have not
entered into a 287(g) agreement with the federal government to detain individuals pursuant
to immigration-related arrest warrants and detainers and express no opinion concerning the
extent, if any, to which an individual held in the custody of a sheriff who has not entered into
a 287(g) agreement with the federal government on the basis of an immigration-related arrest

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According to well-established North Carolina law, a trial judge to whom an

application for the issuance of a writ of habeas corpus has been submitted has

jurisdiction to determine whether it has the authority to act. Burgess v. Gibbs, 262

N.C. 462, 465, 137 S.E.2d 806, 808 (1964) (stating that “every court necessarily has

inherent judicial power to inquire into, hear and determine the questions of its own

jurisdiction, whether of law or fact, the decision of which is necessary to determine

the question of its jurisdiction”). In determining whether it has the authority to

proceed when asked to issue a writ of habeas corpus at the request or on behalf of a

person who might conceivably be held on the basis of an immigration-related arrest

warrant or detainer, the trial judge should proceed in the manner delineated by the

Supreme Court in Tarble’s Case. If, when considering an application for the issuance

of a writ of habeas corpus, the trial judge determines that the application alleges that

the petitioner is being held on the basis of an immigration-related arrest warrant or

detainer by a custodian that is a party to a 287(g) agreement with the federal

government, it must summarily deny the application for the issuance of the writ.6

See Tarble’s Case, 80 U.S. at 409, 20 L. Ed. at 601 (stating that, in the event that a

warrant or detainer is entitled to discharge in a habeas corpus proceeding conducted
pursuant to North Carolina state law.
6 To be absolutely clear, the trial judge should deny, rather than dismiss, the
application given that its inability to issue the requested writ stems from the fact that the
petitioner is allegedly being held pursuant to an immigration-related arrest warrant or
detainer by a sheriff who is a party to a 287(g) agreement with the federal government rather
than because the trial judge lacks any authority at all to entertain an application for the
issuance of a writ of habeas corpus submitted by that applicant.

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Opinion of the Court

petition asserts that petitioners were “confined under the authority, or claim and

color of the authority, of the United States, by an officer of the government[,] . . . the

writ should be refused”). If, on the other hand, the trial judge determines that the

application does not allege that the petitioner is being held on the basis of an

immigration-related arrest warrant or detainer by a custodian operating pursuant to

a 287(g) agreement, or on any other valid grounds, the trial judge has the authority

to issue the writ and require the custodian to make a return. Id. (stating that, if the

application does not disclose that the petitioner is held on the basis of federal

authority, the court may “inquire into the cause of imprisonment, and ascertain by

what authority the person is held within the limits of the State”). In the event that

the custodian makes a return claiming that the petitioner is being held on the basis

of an immigration-related arrest warrant or detainer based upon a 287(g) agreement

between the custodian and the federal government, the trial judge must deny the

petitioner’s request for discharge.7 Id. at 410, 20 L. Ed. at 601 (stating that, “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” and

must deny the writ). On the other hand, if the custodian’s return shows no valid basis

7 Again, for the reasons set forth in more detail above, the application for habeas
corpus should be denied rather than dismissed, given that the obstacle to discharge is the
applicable substantive law rather than the extent of the trial judge’s jurisdiction.

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Opinion of the Court

for the petitioner’s detention, the trial judge is required to order that the petitioner

be discharged. N.C.G.S. § 17-33 (2019).

In their brief before this Court, petitioners argue that the trial court had the

ability to “inquire into the legality” of petitioners’ detention and “make [a] threshold

factual determination” concerning the extent to which they were lawfully detained

pursuant to federal authority. As we understand their argument, petitioners appear

to be asserting that the trial court had the authority to determine the lawfulness of

the alleged immigration-related arrest warrants or detainers upon which the Sheriff

purported to be acting and to determine if the sheriff was acting in accordance with

any applicable 287(g) agreement. However, Tarble’s Case makes it clear that a state

court simply has no power, in light of the preemptive effect of federal immigration

laws, to look behind a sheriff’s claim that the petitioner is being held pursuant to a

valid immigration-related process, such as an arrest warrant or ICE detainer, by an

entity operating under a 287(g) agreement with the federal government given that

the Sheriff claims to be operating as a de facto immigration officer in such

circumstances. For that reason, a trial judge who has been presented with an

application for the issuance of a writ of habeas corpus lacks the authority to make

any determination concerning the validity of any immigration-related process upon

which a custodian who has entered into a 287(g) agreement with the federal

government claims to be holding the petitioner, including whether the petitioner is

the person named in the immigration-related process, whether the process is facially

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Opinion of the Court

valid, whether the personnel employed by the custodian are properly certified, or

whether the process has sufficient factual support, since attempting to make such

determinations would place the trial judge in the position of making decisions that

have been reserved for federal, rather than state, judicial officials and potentially

interfering with the manner in which federal immigration laws are administered.8

Nyquist v. Mauclet, 432 U.S. 1, 10, 97 S. Ct. 2120, 2126, 53 L. Ed. 2d 63, 71 (1977)

(stating that “[c]ontrol over immigration and naturalization is entrusted exclusively

to the Federal Government, and a State has no power to interfere”); Arizona, 567 U.S.

at 395, 132 S. Ct. at 2498, 183 L. Ed. 2d at 366 (stating that the federal government’s

“well-settled” power over immigration rests in “one national sovereign, not the 50

separate states”). As a result, in the event that a petitioner contends that he or she

is being held unlawfully by a sheriff who is a party to a 287(g) agreement with the

federal government on the basis of a defective immigration-related arrest warrant or

detainer, his or her exclusive remedy lies with the federal, rather than the state,

courts. Tarble’s Case, 80 U.S. at 410, 20 L. Ed at 601 (stating that, if a petitioner is

“within the dominion and exclusive jurisdiction of the United States. . . . [and]

8 The trial judge would, of course, have the authority to inquire into the issue of
whether the custodian in whose custody the petitioner is being detained has, in fact, entered
into a 287(g) agreement with the federal government that is presently in effect, with the
actual validity of that agreement or the manner in which it is being implemented being an
issue for the federal, rather than the state, courts.

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wrongly imprisoned, their judicial tribunals can release him and afford him

redress”).9

In this case, petitioners’ applications for the issuance of a writ of habeas corpus

clearly reflect that former Sheriff Carmichael, who had entered into a 287(g)

agreement with the federal government, claimed to be detaining both petitioners on

the basis of an immigration-related arrest warrant or detainer. More specifically, the

applications for the issuance of a writ of habeas corpus filed by both petitioners

alleged that they were being “held at the Mecklenburg County Jail pursuant to an

immigration detainer and I-200 Form” and “a municipal practice of honoring civil

immigration detainers” and that the Sheriff “will likely claim that his authority is

derived from” a 287(g) agreement.10 In view of the fact that the applications

presented to the trial court in this case alleged that petitioners were being held on

9 To repeat what has been said earlier, we reiterate that we are expressing no opinion
concerning the extent, if any, to which a state or local law enforcement agency that is not a
party to a 287(g) agreement with the federal government is entitled to detain a person on the
basis of an immigration-related arrest warrant or detainer.
10The language in which the petitions are couched makes it clear that both petitioners
conceded that the 287(g) agreement to which they alluded did, in fact, exist. Instead of
denying that any 287(g) agreement between former Sheriff Carmichael and the federal
government existed, petitioners argued that the Sheriff “must show some granting of
authority from the state to allow him to enter into such an agreement” and that “[t]o allow
[the Sheriff] to contract with a federal agency and expand his authority would violate the
dual principles of federalism as specified in the Tenth Amendment of the U.S. Constitution.”
In other words, rather than denying that the Sheriff had entered into a 287(g) agreement
with the federal government, petitioners asserted that the 287(g) agreement was invalid,
which is an immigration-related issue that is reserved for decision by the federal, rather than
the state, courts, particularly given that former Sheriff Carmichael was clearly entitled
pursuant to North Carolina law to enter into the relevant agreement by N.C.G.S. § 128-
1.1(c1).

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the basis of an immigration-related process by a custodian that was a party to a 287(g)

agreement with the federal government, the applications, on their face, informed the

trial court that its state law authority to inquire into the lawfulness of petitioners’

detentions had been superseded by federal law. As a result, although the trial court

did have the authority to make an initial determination concerning whether it had

the authority to grant petitioners’ applications, an examination of the applications

themselves should have led the trial court to summarily deny petitioners’ habeas

corpus petitions.

Thus, for the reasons set forth above, we hold that, while a trial judge

presented with an application for the issuance of a writ of habeas corpus has the

authority to determine whether it is entitled to act upon any such petition, it should

(1) summarily deny an application seeking the issuance of a writ of habeas corpus

that alleges that the petitioner is being held pursuant to an immigration-related

arrest warrant or detainer by a sheriff who is a party to a 287(g) agreement with the

federal government and (2) deny a petitioner’s request for discharge in the event that

the return filed by a sheriff who has entered into a 287(g) agreement with the federal

government claims that the petitioner is being held pursuant to an immigration-

related arrest warrant or detainer. For that reason, we further hold that the trial

court erred by failing to summarily deny the applications for the issuance of a writ of

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Opinion of the Court

habeas corpus submitted by petitioners for its consideration in this case.11 On the

other hand, while the Court of Appeals correctly determined that petitioners were not

entitled to be discharged from the Sheriff’s custody, it erred to the extent that (1) it

held that the trial court lacked the jurisdiction to determine whether the Sheriff, who

had clearly entered into a 287(g) agreement with the federal government, claimed to

be holding petitioners on the basis of an immigration-related arrest warrant or

detainer and (2) by addressing the extent to which habeas corpus relief is available

to petitioners who are allegedly being held on the basis of immigration-related arrest

warrants or detainers by sheriffs who are not parties to 287(g) agreements. As a

result, the decision of the Court of Appeals is modified and affirmed, in part; reversed,

in part; and vacated, in part, with this case being remanded to the Court of Appeals

for further remand to the Superior Court, Mecklenburg County, with instructions to

deny petitioners’ requests for the issuance of writs of habeas corpus and to be

discharged from custody.12

11 In view of the fact that petitioners’ applications disclosed the existence of the 287(g)
agreement, petitioners’ argument that the Sheriff waived the right to challenge the trial
court’s orders is not persuasive.
12 At the conclusion of its opinion, the Court of Appeals ordered that “[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.” Chavez, 262 N.C. App.
at 217, 822 S.E.2d at 145. In a concurring opinion, Judge Dietz, who was a member of the
Court of Appeals panel that decided this case, stated that the panel was “concerned that our
writ of prohibition [preventing the superior court from ruling on habeas petitions] may not
have been followed with respect to other undocumented immigrants involved in other habeas
cases not before the Court” and that copies of its opinion had been sent to the Judicial
Standards Commission and the North Carolina State Bar to make them “aware of it, should
there be any allegations that this Court’s writ of prohibition was ignored.” Id. (Dietz, J.,

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MODIFIED AND AFFIRMED, IN PART; REVERSED, IN PART; VACATED,

IN PART; AND REMANDED.

concurring). Aside from the fact that we are not inclined to assume that members of the trial
bench or bar will knowingly refuse to follow orders of either this Court or the Court of
Appeals, we have 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 this Court or the Court of Appeals would decide how
immigration-related habeas corpus petitions should be handled in advance of our decisions.
As a result, we vacate those portions of the Court of Appeals’ decision requiring that a copy
of its opinion be delivered to the Judicial Standards Commission and the Disciplinary
Hearing Commission of the North Carolina State Bar.

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