No. 437P18 TWENTY-SIXTH DISTRICT NORTH CAROLINA SUPREME COURT ****************************************************** CARLOS CHAVEZ and LUIS ) LOPEZ ) PETITIONERS, ) From Mecklenburg County ) v. ) ) GARY MCFADDEN, SHERIFF ) OF MECKLENBURG COUNTY, ) ) RESPONDENT. ) **************** AMICUS CURIAE BRIEF NORTH CAROLINA JUSTICE CENTER ***************
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No. 437P18 TWENTY-SIXTH DISTRICT NORTH CAROLINA … · GARY MCFADDEN, SHERIFF ) OF MECKLENBURG COUNTY, ) ) RESPONDENT. ) ***** AMICUS CURIAE BRIEF IN SUPPORT NORTH CAROLINA JUSTICE
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Pursuant to Rule 28(i) of the North Carolina Rules of Appellate Procedure,
the North Carolina Justice Center submits this brief as amicus curiae in support of
Petitioners.1 The Court of Appeals erred in vacating the trial court’s decision
1 Pursuant to Rule 28(i)(2), counsel for amicus states that no person or entity,
other than amicus, their members, or their counsel directly or indirectly
authored this brief in a whole or in part or made a monetary contribution to
the preparation or submission of this brief.
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to grant Petitioners habeas corpus relief under Chapter 17. In doing so, the
Court of Appeals issued an impermissible advisory opinion by circumventing
jurisdiction granted to the superior court by N.C.G.S. § 17 et seq. and
erroneously applying the mootness doctrine.
BACKGROUND
The United States Department of Homeland Security, as part of its
enforcement powers, has the authority to detain people it suspects of violating civil
immigration laws. As relevant here, Immigration and Custom Enforcement (“ICE”)
officers can seize, without a warrant, people they believe to be present in the United
States without authorization; the exercise of that authority requires not only a
probable cause belief that a person is present in the country without authorization,
but is further limited to circumstances when an individual “is likely to escape before
a warrant can be obtained for his arrest.” Arizona v. United States, 567 U.S. 387,
132 S.Ct. 2492, 2505-07 (2012).
It is only federal immigration officials, however, who can detain people
believed to be in violation of civil immigration laws. See id. at 2505 (“If the police
stop someone on nothing more than possible removability, the usual predicate for
an arrest is absent.”). A state law enforcement officer, on the other hand, can seize
and detain a person “only if the officer has ‘probable cause’ to believe that the
suspect is involved in criminal activity.” Brown v. Texas, 443 U.S. 47, 51 (1979).
Thus, state law enforcement officials cannot, on their own authority, seize or detain
a person based on suspected or known civil immigration violations; to do so would
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violate the Fourth Amendment to the United States Constitution, as well as Article
I, § 19 of the North Carolina Constitution. See, e.g., Santos v. Frederick Cty. Bd. of
Comm’rs, 725 F.3d 451, 465 (4th Cir. 2013) (finding a seizure by local law
enforcement based on knowledge of an outstanding civil deportation warrant
violated the Fourth Amendment) (“Because civil immigration violations do not
constitute crimes, suspicion or knowledge that an individual has committed a civil
immigration violation, by itself, does not give a law enforcement officer probable
cause to believe that the individual is engaged in criminal activity.”)
The so-called “287(g)” program, which has its origins in the Immigration and
Nationality Act § 287(g), is a program that allows for ICE and local law enforcement
agencies to enter into agreements under which the local law enforcement agency
agrees to perform some of the functions of ICE pursuant to a purported narrow
delegation of authority. 8 U.S.C. § 1357(g)(1). The local subdivision enters into a
Memorandum of Agreement (“MOA”) with ICE that defines the scope, duration, and
limitations of the delegation of authority and obligates the local law enforcement
agency to follow ICE and DHS policies when performing immigration functions.2
During Sheriff Irwin Carmichael’s tenure as Sheriff, including during the
seizures and detentions at issue in this case, ICE and Mecklenburg County were
parties to an MOA, although the current sheriff ended the program upon taking
2 U.S. Immigration and Customs Enforcement, Dept. of Homeland Security,
https://www.ice.gov/287g (last visited May 28, 2019).
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office on December 5, 2018.3 Under that MOA, specially vetted and trained local
law enforcement agency designates were “certified” to carry out specified
immigration duties; each “certified” officer received a “signed authorization letter”
valid for a one year period, along with “immigration officer credentials.” R. 104-105.
Only those officers were authorized to perform delegated immigration duties under
the agreement. Id. In accordance with the parameters of the MOA, the delegated
authority included the power to serve civil immigration warrants and to arrest and
detain people for civil immigration violations. R. 103, 119-20.
A second program is known as “Secure Communities.” Under Secure
Communities, when state and local law enforcement officers arrest and book
someone into state custody, they generally fingerprint the person.4 The fingerprints
are shared with DHS so that ICE can determine if that person is potentially subject
to removal (deportation).5 In cases where ICE believes the person to be removable,
ICE typically issues a detainer (and sometimes a civil warrant, not issued by a
judge), requesting that the local law enforcement agency hold the individual up to
3 Jane Wester, New sheriff tells ICE he’ll end controversial jail immigration
program in Mecklenburg, Charlotte Observer, December 5, 2018, available at https://www.charlotteobserver.com/news/local/article222629390.html; see also U.S.
Immigration and Customs Enforcement, Dept. of Homeland Security, Delegation of
Immigration Authority Section 287(g) Immigration and Nationality Act, last visited
May 14, 2019 (showing that Mecklenburg County is not on ICE’s list of counties
with active 287(g) agreements.) 4 U.S. Immigration and Customs Enforcement, Dept. of Homeland Security,
https://www.ice.gov/secure-communities (last visited May 28, 2019). 5 Id.
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48 hours to allow ICE to assume custody.6 Under this arrangement, local law
enforcement officers are not delegated any federal authority to perform designated
ICE functions.
Constitutional violations occur when local law enforcement officers re-seize
and detain people after their state custody has ended on the basis of ICE detainers
or civil administrative warrants. See, e.g., Santos, 725 F.3d at 465; Galarza v.
Szlalczyk, 745 F.3d 634, 643-45 (3rd Cir. 2014) (finding that “a conclusion that a
detainer issued by a federal agency is an order that state and local agencies are
compelled to follow, is inconsistent with the anti-commandeering principle of the
Tenth Amendment” and thus the existence of a detainer did not constitute “a
defense” for local law enforcement “that its own policy did not cause the deprivation
of [the detained person]’s constitutional rights”); Lunn v. Commonwealth, 477 Mass.
517, 537, 78 N.E.3d 1143, 1160 (2017) (“Massachusetts law provides no authority
for Massachusetts court officers to arrest and hold an individual solely on the basis
of a Federal civil immigration detainer, beyond the time that the individual would
otherwise be entitled to be released from State custody.”); Miranda-Olivares v.
Clackamas Cty., No. 3:12-CV-02317-ST, 2014 WL 1414305, at *33 (D. Or. Apr. 11,
2014) (“There is no genuine dispute of material fact that the County maintains a
custom or practice in violation of the Fourth Amendment to detain individuals over
6 Id.
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whom the County no longer has legal authority based only on an ICE detainer
which provides no probable cause for detention.”).
ARGUMENT
The central question before the trial court in this matter—the constitutionality
of a detention by local law enforcement based purely on an alleged civil immigration
violation—is unquestionably an important “matter of public interest,” that
“deserves prompt resolution” and thus would justify an exception to the mootness
doctrine. N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989).
That question, however, was not addressed in the decision on appeal. Rather, the
Court of Appeals mistakenly applied the mootness doctrine to the issue of subject
matter jurisdiction, thereby circumventing the first-order fact-specific threshold
jurisdictional analysis required by the only question before it on appeal. In doing so,
it issued an improper advisory opinion that rewrites the North Carolina general
statutes. If the Court of Appeals’ decision stands, it will eviscerate the habeas
framework enacted by the General Assembly and suspend habeas relief for a
vaguely defined group—including any North Carolinian detained by local law
enforcement while alleged to be the subject of an ICE detainer, regardless of the
circumstances of their detention. The Court of Appeals’ decision is thus not only an
improper advisory opinion, but it also raises a number of other constitutional
concerns.
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I. THERE IS NO PUBLIC INTEREST EXCEPTION TO THE THRESHOLD
LIMIT OF SUBJECT MATTER JURISDICTION.
Whether or not a court has subject matter jurisdiction is a first-order
threshold question that must be answered before any further legal analysis is
performed. “When the record clearly shows that subject matter jurisdiction is
lacking, the Court will take notice and dismiss the action ex mero motu.” In re
A.F.H–G, 657 S.E.2d 738, 739 (2008) (quoting Lemmerman v. A.T. Williams Oil
Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85–86 (1986)); accord McBride v. N. Carolina
State Bd. of Ed., 257 N.C. 152, 154, 125 S.E.2d 393, 395 (1962). Furthermore, both
this Court and the Court of Appeals “cannot acquire jurisdiction by appeal.” Union
Carbide Corp. v. Davis, 253 N.C. 324, 327, 116 S.E.2d 792, 794 (1960); Stephens v.