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Griffin pushes back on ICE critics

Sheriff Lowell Griffin is pushing back on critics who have been telling the Henderson County Board of Commissioners that his office's cooperation with federal immigration authorities is either a waste of county money, counterproductive or illegal.

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George Pappas, an immigration attorney, local activists for the Latino community and a 2018 candidate for the state House told county commissioners during a public comment period that the county was wasting money and making the Latino community less safe because the sheriff has agreed to renew a federal 287(g) program. Under a memorandum of understanding, the sheriff's office notifies ICE when a fingerprint check shows that someone booked into the jail may be here illegally.

"We fingerprint everybody and see what kind of hits we get on everybody," Griffin said. "If we have reason to believe they weren't born in the United States we do take a harder look at their immigration status. We'll put a temporary detainer on them and see if ICE wants a full detainer."

Ron Justice, the sheriff's office staff attorney, released a report Tuesday on ICE statistics and an explainer on the law and controlling appellate cases. The report showed that of 118 ICE detainers in 2017 and 2018, 83 involved individuals charged with drunken driving, assaults, domestic violence or drugs and only nine involved an arrest for traffic violations. Griffin said deputies do not have the authority to pick up people suspected of being here illegally or even to ask about their residency status.

A case that Pappas "is really standing on," Griffin said, comes out of Virginia and involves deputies using a federal ICE detainer to pick up a woman at a work place. In Henderson County, deputies never use an ICE detainer on anyone unless they're already booked in to the jail for a crime, he said.

"The memorandum of understanding gives us that authority to be able to identify and hold for that 48-hour window those subjects that are identified as being here illegally," he said. "There's no check block that allows us to ask about their legal residency. It only occurs once somebody's committed to the jail."

Griffin rebuts the claim that the ICE agreement makes Latino crime victims reluctant to call the law for fear that deputies will check the legal status of the victim and everyone else in the home.

"Believe it or not, we've been contacted by the Latino community asking us to target certain people for deportation that they don't even want in their community," he said. "We're not doing anything punitive to anyone." The best way for anyone who fears involvement with ICE, Griffin said, is to avoid committing a crime. If they don't get picked up for a crime, they won't be checked by his deputies, he said.

"If you're part of the criminal element, we're going to use all the tools at our disposal to make the community as safe as possible by removing them from the community," he said.

On Monday night, Pappas and several other speakers implored county commissioners to spend no money on 287(g). Commission Chair Grady Hawkins corrected one speaker, who said commissioners had appropriated $250,000 to support the ICE agreement. He said it they had not; that money was for jailers and not related to ICE.

"An ICE detainer is a civil request," Pappas said. "It's not based on criminal probable cause. Even a deportation order is not criminal. The way for ICE to do this legally and constitutionally is to get a warrant. Let them do their job. The Department of Homeland Security has a budget of $7.6 billion and they can't fund the sheriff? We shouldn't spend a dime."

When the county first entered into the ICE agreement, "there was a profit motive. The county was getting reimbursed," he said. "They get nothing now. Nothing. ... Make a decision based on data. Who has given you any data that says public safety is going to be improved, increased with the 287(g) program. Ninety-seven sheriffs in North Carolina — thumbs down on 287(g). Only three remain — Henderson, Nash and Gaston. Where's the data that says it's improving public safety?"

In the news release, Justice pointed out that it's possible someone booked into the jail for a traffic violation could trigger an ICE detainer.

"Even if the Henderson County Sheriff’s Office doesn’t arrest individuals for traffic offenses the Highway Patrol and city police departments may," he said. "The detention facility has to use the same booking process for every person who comes into the facility. This includes fingerprinting. The fingerprint identification is how we would learn of the ICE detainer. The Henderson County Sheriff’s Office can’t vary the booking process used because someone might be subject to removal for an immigration violation."

State law specifically authorizes sheriffs to enter into 287(g) agreements, requires a jail "to inquire into a prisoner's immigration status" and "mandates (that) the sheriff 'shall' notify DHS (Department of Homeland Security) of the prisoner's 'status and confinement,'" Justice said.

A November 2018 the North Carolina Court of Appeals case, Chavez v. Carmichael, is the controlling legal case, he said.

"The Chavez case dealt with a Superior Court judge ordering the release of prisoners being held pursuant to ICE detainers," he said. "The Court said Sheriff’s duty was to hold individuals pursuant to ICE detainers and State courts had no authority to order release while under Federal detainer."

No case cited by Pappas is "controlling in the Fourth U.S. Circuit or North Carolina," Justice said.

The Fourth Circuit case Pappas cited involved law enforcement who were not 287(g) officers, the encounter occurred outside of a detention facility, and the Plaintiff did not have criminal charges at the time. She just had the ICE detainer. The Henderson County Sheriff’s Office is only acting upon ICE detainers when the alien is in custody on other criminal charges.