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Is Sheriff Miller Breaking State Law With New Policy?

By Chad Nesbitt

Buncombe County – Last week Buncombe County Sheriff Quentin Miller made news when he announced that Buncombe County would no longer hold detainees for U.S. Immigration and Customs Enforcement (ICE), stating that a detainer request is not a valid warrant. Miller also told his deputies we’re no longer to ask about a person’s citizenship.

Miller said, “The sheriff’s office will continue to comply with all applicable state and federal laws; however, we do not make or enforce immigration laws. That is not part of our law enforcement duties.”

Is that true, or is Sheriff Miller breaking NC state laws with this new policy?

The Leader looked at NC State Statue 153A-145.5 which says, “No county may have in effect any policy, ordinance, or procedure that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. (b) No county shall do any of the following related to information regarding the citizenship or immigration status, lawful or unlawful, of any individual: (1) Prohibit law enforcement officials or agencies from gathering such information. (2) Direct law enforcement officials or agencies not to gather such information. (3) Prohibit the communication of such information to federal law enforcement agencies. (2015-294, s. 15(a).)

Can Sheriff Miller legally order his deputies to not ask someone about their citizenship?

According to NC State Statue 162‑62 if the person is a prisoner the law says, “When any person charged with a felony or an impaired driving offense is confined for any period in a county jail, local confinement facility, district confinement facility, or satellite jail/work release unit, the administrator or other person in charge of the facility 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 or other person in charge of the facility is unable to determine if that prisoner is a legal resident or citizen of the United States or its territories, the administrator or other person in charge of the facility holding the prisoner, where possible, 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.”

What was the process to detain someone that maybe wanted by ICE before Miller’s policy change?

When Buncombe County Sheriff Media Spokesperson Aaron Sarver was asked that question, he would not give a direct answer to the question. “A detainer request is not a valid criminal warrant. If any law enforcement agency presents a criminal warrant signed by a judicial official, then the Buncombe County Sheriff’s Office will turn an individual over to that agency, regardless of immigration status. This is the same policy that is in place in seven counties across NC,” said Sarver. ” Please speak with someone who works within the judicial system or is an attorney so that they can help you understand that the Sheriff does not serve as judge and jury. The NC Sheriff’s Association can also help you understand the statutory powers given to Sheriff Miller.”

The Leader spoke with other officers from three different agencies to find the answer – two officers from Henderson County, two from Madison County, and five from Buncombe County, all of which wished to remain anonymous.

Their answer came down to the following example: If an officer pulls someone over for drinking and driving, they ask for their license and registration. The officer then enters their license information into a computer. This information is also entered into the National Crime Information Center (NCIC). Officers call it a “hit” if the name of the person they are running the information on comes back; they are wanted in a different state or by another law enforcement agency.

The NCIC database currently consists of 21 different files. Seven are property files containing records of stolen articles, boats, guns, license plates, parts, securities, and vehicles.

The other 14 are personal data information, which include: Supervised Release; National Sex Offender Registry; Foreign Fugitive; Immigration Violator; Missing Person; Protection Order; Unidentified Person; Protective Interest; Gang; Known or Appropriately Suspected Terrorist; Wanted Person; Identity Theft; Violent Person; and National Instant Criminal Background Check System (NICS) Denied Transaction. The system also contains images that can be associated with NCIC records to help agencies identify people and property items. The Interstate Identification Index includes electronic criminal history record information which is accessible through the same network as NCIC.

If the person does not have a driver’s license and they have committed a felony crime, such as drinking and driving, the person is arrested whether they can figure out who the person is or not. They are then transported to a jail facility where they are fingerprinted. The fingerprints are then run through the NCIC system.

If there is a “hit,” whether from the computer in the police car or at the jail facility, officers will contact that agency that has a warrant or detainer for that person’s arrest. No matter what law enforcement agency it is, local law enforcement would ask if that agency wanted them to detain that person until they could be taken into custody.

The person arrested locally would still have to make bond for what they were arrested for, but law enforcement can detain someone for another agency after they have made bond for up to 48 hours. After that, they have to let them go.

Officers who spoke with the newspaper told the Leader sometimes ICE never shows up to take someone into custody.

In an email, spokesperson for the Southern District of ICE Brian Cox said, “U.S. Immigration and Customs Enforcement (ICE) places detainers on individuals who have been arrested on local criminal charges and who are suspected of being deportable, so that ICE can take custody of that person when he or she is released from local custody. When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders onto the streets, it undermines ICE’s ability to protect public safety and carry out its mission.

“Any local jurisdiction thinking that refusing to cooperate with ICE will result in a decrease in local immigration enforcement is mistaken. Local authorities that choose to not work with ICE are likely to see an increase in ICE enforcement activity, as in jurisdictions that do not cooperate with ICE the agency has no choice but to conduct more at-large arrest operations.

“A consequence of ICE being forced to make more arrests on the streets is the agency is likely to encounter other unlawfully present foreign nationals that wouldn’t have been encountered had we been allowed to take custody of a criminal target within the confines of a local jail.”

Miller’s decision has also drawn the ire of others in the law enforcement community.

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