Last year, ICE sent upwards of 4,500 requests to local law enforcement in North Carolina, asking them to hold people in jail when state law would otherwise mandate their release. For the people targeted by these requests, there are few options.

The Supreme Court of North Carolina is now considering a case that could close off one of those options. Chavez v. Carmichael addresses whether people imprisoned by local authorities cooperating with ICE can appeal to state courts for their release.

The case started when two men, Carlos Chavez and Luis Lopez, were kept in the Mecklenburg County jail under such a detainer from ICE. They filed habeas corpus petitions with a state judge, and this judge found that their imprisonment was unlawful and ordered their release. Instead of releasing them, however, then-Sheriff Irwin Carmichael turned Chavez and Lopez over to ICE and appealed the judge’s ruling to a higher court. In a problematic and overreaching ruling, the North Carolina Court of Appeals found that the state court did not have jurisdiction to examine the legality of Chavez’s and Lopez’s detention at all.

If allowed to stand, this would be a disturbing precedent, potentially preventing state courts in North Carolina from overseeing the behavior of North Carolina police, even when they engage in clear misconduct or accommodate plainly unlawful detainer requests. Unfortunately, the ICE detainer process is rife with illegalities and wide open to abuse. Recent investigations have disclosed the alarming frequency with which ICE officers forge their supervisors’ signatures on the administrative warrants that accompany detainers, violating ICE’s own policies and stripping away even the minimal protection of supervisor review of warrants that already are subject to no advance judicial scrutiny. Detainers are also often issued in an incorrect name – as, indeed, occurred with the detainer against Mr. Chavez. Errors are so pervasive that ICE even frequently issues detainers against United States citizens: the ACLU of Florida found ICE issued more than 400 detainers against individuals listed as U.S. citizens in just a single county. This problem is wrenchingly illustrated by the case of Mark Lyttle, a U.S. citizen from North Carolina who was erroneously detained and eventually deported to Mexico without any legal representation despite suffering from serious cognitive disabilities.  As a result of these actions from ICE and local law enforcement, Mr. Lyttle was forced to wander through Central America for months facing homelessness and abuse due to his lack of resources and inability to speak Spanish.

Prohibiting state courts from reviewing these kinds of detentions would fly in the face of longstanding principles of dual sovereignty, and no federal law remotely suggests that state courts should be stripped of their powers in such cases. More than that, blocking oversight by state courts opens the doors to abuse, allowing local police and ICE to rip families apart with no legal basis for doing so.

Chavez and Lopez, who are represented by Sejal Zota and Rob Heroy, appealed to the North Carolina Supreme Court, which is now considering the case. The ACLU and ACLU of North Carolina recently filed a friend of the court brief arguing that closing the door to state courts is contrary to existing law and would inflict serious harm on North Carolina’s immigrant communities. We were joined by ten local community organizations that deal firsthand with the devastating effects of ICE detainers, including Apoyo, Comite De Acción Popular, Comite Popular, Compañeros Inmigrantes de las Montañas en Acción, Communidad Colectiva, Henderson Resiste, Project South, Siembra NC, the Southeast Asian Coalition, and the Southeast Immigrants Rights Network.

If the North Carolina Supreme Court does not act, our communities will continue to be denied protection from unlawful detention by local authorities working with ICE. The ACLU of North Carolina believes that our state authorities should be accountable when they imprison people illegally and that people held illegally on behalf of ICE must be able to petition state courts for their release. We have asked the state supreme court to restore this basic protection.

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