NO. 437 PA 18 TWENTY-SIXTH DISTRICT

SUPREME COURT OF NORTH CAROLINA ______________________________

) CARLOS CHAVEZ and LUIS ) LOPEZ, )

) Petitioners-Appellants, )

) v. ) From Mecklenburg County

) No. COA 18-317 GARRY McFADDEN, ) SHERIFF OF ) MECKLENBURG COUNTY, ) )

Respondent-Appellee. ) ______________________________ )

BRIEF AMICUS CURIAE ON BEHALF

OF THE UNITED STATES OF AMERICA

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TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES ……..……………... ii ISSUES PRESENTED …………………………………………….. 1 STATEMENT OF THE CASE AND FACTS ………………….. 1

I. Mecklenburg County’s Past 287(g) Agreements …. 1

II. Chavez’s And Lopez’s Cases…………………............... 3 ARGUMENT …...……………………………………………………. 8

I. The Superior Court Lacked Jurisdiction to Issue Writs of Habeas Corpus Directed at MCSO Officers Performing Federal Immigration Functions …… 12

A. Both Federal And North Carolina Law Authorize The

MCSO To Perform Immigration Functions…………….13

B. The Superior Court Seriously Erred By Failing To Acknowledge The Existence Of The MCSO’s 287(g) Agreement…………………………………………………... 25

II. Immigration Warrants Comply With the Fourth

Amendment …………………………………...……...…. 32

III. The MCSO’s Voluntary Entry Into a 287(g) Agree- -ment Does Not Violate the Tenth Amendment ... 38

CONCLUSION …………………………………………………….. 40 CERTIFICATE OF SERVICE ………………………………….. 41

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TABLE OF CASES AND AUTHORITIES

CASES Page(s)

Abel v. United States, 362 U.S. 217 (1960) .......................................................................... 11, 34

Ableman v. Booth, 62 U.S. .............................................................................................. 26, 31

Arias v. ICE, No. 07-cv-1959 2008 WL 1827604 (D. Minn. Apr. 23, 2008) ......................................... 20 Arizona v. United States,

567 U.S. 387 (2012) ....................................................................... passim Christopher v. Sussex Cty.,

77 A.3d 951 (Del. 2013) ......................................................................... 21 City of El Cenizo v. Texas,

890 F.3d 164 (5th Cir. 2018) ......................................................... passim City of Los Angeles v. Barr,

— F.3d —, 2019 WL 3049129 (9th Cir. July 12, 2019) ........................ 15 Clark v. Suarez Martinez,

543 U.S. 371 (2005) ............................................................................... 14 Comm. for Immigrant Rights of Sonoma Cty. v. Cty. of Sonoma,

644 F. Supp. 2d 1177 (N.D. Cal. 2009) ..................................... 16, 17, 18 Commonwealth v. Leet,

641 A.2d 299 (Pa. 1994) ......................................................................... 21 Ex parte Corretjer,

50 P.R. Dec. 211 (1936) ......................................................................... 31

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Covell v. Heyman, 111 U.S. 176 (1884) ............................................................................... 11

Dep’t of Pub. Safety & Corr. Servs. v. Berg,

674 A.2d 513 (Md. Ct. App. 1996) ......................................................... 21 Furr v. Noland,

404 S.E.2d 885 (N.C. Ct. App. 1991) ..................................................... 23 Galarza v. State, No. 13-0917

2014 WL 4230194 (Iowa Ct. App. Aug. 27, 2014) ................................ 31 Galarza v. Szalczyk,

745 F.3d 634 (3d Cir. 2014) ................................................................... 39 Holcomb v. Colonial Assocs.,

358 N.C. 501 (2004) ............................................................................... 25 In re Azurin,

87 Cal. App. 4th 20 (2001) ..................................................................... 31 In re Tarble (“Tarble’s Case”), 80 U.S. (13 Wall.) 397 (1872) .............................................. 10, 27, 28, 32 Junior v. LaCroix,

263 So. 3d 159 (Fla. Dist. Ct. App. 2018) ....................................... 12, 30 Lopez-Lopez v. Cty. of Allegan,

321 F. Supp. 3d 794 (W.D. Mich. 2018) ................................................ 18 Lunn v. Commonwealth,

78 N.E. 3d 1143 (Mass. 2017) ............................................................... 21 Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ................................................................................. 25 Marsh v. United States,

29 F.2d 172 (2d Cir. 1928) ..................................................................... 21

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Nat’l Fed’n of Indep. Bus. v. Sebelius,

132 S. Ct. 2566 (2012) ........................................................................... 38 New York v. United States,

505 U.S. 144 (1992) ............................................................................... 38 Nielsen v. Preap,

139 S. Ct. 954 (2019) ............................................................................. 14 People v. Villa,

202 P.3d 427 (Cal. 2009) ....................................................................... 31 Perez-Ramirez v. Norwood,

322 F. Supp. 3d 1169 (D. Kan. 2018) .................................................... 14 Printz v. United States,

521 U.S. 898 (1997) ............................................................................... 38 Ricketts v. Palm Beach Cty. Sheriff,

985 So. 2d. 591 (Fla. Dist. Ct. App. 2008) ............................................ 30 Rios v. Jenkins, No. 18-cv-082, 2019 WL 3070632 (W.D. Va. July 15, 2019) ......................................... 20 Roman v. Ashcroft,

340 F.3d 314 (6th Cir. 2003) ................................................................. 25 Ex parte Royall,

117 U.S. 241 (1886) ................................................................... 27, 31, 32 S. Ry. Co. v. Mecklenburg Cty.,

231 N.C. 148 (1949) ............................................................................... 21 Santos v. Frederick Cty. Bd. of Comm’rs,

725 F.3d 451 (4th Cir. 2013) ......................................................... passim

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Sherman v. U.S. Parole Comm’n, 502 F.3d 869 (9th Cir. 2007) ................................................................. 34

Silva v. United States,

866 F.3d 938 (8th Cir. 2017) ................................................................. 20 State v. Chavez-Juarez,

923 N.E. 2d 670 (Ohio Ct. App. 2009) .................................................. 29 State v. Gwyn,

406 S.E.2d 145 (N.C. Ct. App. 1991) ..................................................... 35 State v. Theoharopoulos,

240 N.W.2d 635 (Wis. 1976) ...................................................... 28, 29, 32 State v. Zuniga,

312 N.C. 251 (1984) ............................................................................... 36 Tenorio-Serrano v. Driscoll,

324 F. Supp. 3d 1053 (D. Ariz. 2018) .................................................... 12 United States v. Bostic,

168 F.3d 718 (4th Cir. 1999) ................................................................. 38 United States v. Bowdach,

561 F.2d 1160 (5th Cir. 1977) ............................................................... 21 United States v. Hensley,

469 U.S. 221 (1985) ............................................................................... 36 United States v. Janik,

723 F.2d 537 (7th Cir. 1983) ................................................................. 21 United States v. McDonald,

606 F.2d 552 (5th Cir. 1979) ................................................................. 35 United States v. Ovando-Garzo,

752 F.3d 1161 (8th Cir. 2014) ............................................................... 37

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United States v. Phillips,

834 F.3d 1176 (11th Cir. 2016) ............................................................. 33 United States v. Santana-Garcia,

264 F.3d 1188 (10th Cir. 2001) ............................................................. 21 United States v. Sosa-Carabantes,

561 F.3d 256 (4th Cir. 2009) ........................................................... 15, 23 Vaughn v. N.C. Dep’t of Human Res., 296 N.C. 683 (1979) ............................................................................... 25 Virginia v. Moore,

553 U.S. 164 (2008) ......................................................................... 33, 35

STATUTES

6 U.S.C. § 211 ........................................................................................... 16 8 U.S.C. § 1226(a) ................................................................... 11, 12, 14, 34 8 U.S.C. § 1357(g) ............................................................................. passim 8 U.S.C. § 1357(g)(1) ........................................................... 9, 12, 14, 19, 25 8 U.S.C. § 1357(g)(3) ........................................................................... 10, 14 8 U.S.C. § 1357(g)(8) ........................................................................... 19, 25 8 U.S.C. § 1357(g)(9) ................................................................................. 39 8 U.S.C. § 1357(g)(10) ............................................................. 15, 19, 24, 25 8 U.S.C. § 1103(a)(3) ................................................................................. 16 8 U.S.C. § 1226 ................................................................................... 14, 18

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28 U.S.C. § 517............................................................................................ 8 28 U.S.C. § 2241.................................................................................. 27, 32 N.C. Gen. Stat. § 128-1.1(c1) .............................................................. 12, 23 N.C. Gen. Stat. § 153A-145.5(a) ........................................................... 8, 22 OTHER AUTHORITIES 3 Wayne R. LaFave et al., Search and Seizure: A Treatise on the Fourth

Amendment § 3.5(b) (5th ed. 2016) ……………………………………… 36 17A Charles Alan Wright et al., Federal Practice and Procedure § 4213 (3d ed. 2007) ............................................................................... 26

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ISSUES PRESENTED

The United States will address the following issues:

(1) whether the court of appeals was correct to vacate the superior

court’s writs of habeas corpus against Mecklenburg County Sheriff’s

Officers (“MCSO”) acting under federal authority;

(2) whether MCSO deputies subject to an agreement with the federal

government under 8 U.S.C. § 1357(g) may effect immigration arrest

warrants and temporarily hold removable aliens for the United States

Department of Homeland Security’s (“DHS”) component agency, U.S.

Immigration and Customs Enforcement (“ICE”), consistent with the

Fourth Amendment; and

(3) whether a voluntary agreement between the MCSO and DHS

under 8 U.S.C. § 1357(g) is permissible under the Tenth Amendment.

STATEMENT OF THE CASE AND FACTS

I. Mecklenburg County’s Past 287(g) Agreements

The origins of this case date back to February 2006, when ICE and

the Mecklenburg County Board of Commissioners, by and through the

MCSO, entered into a Memorandum of Understanding under 8 U.S.C.

§ 1357(g) (“Section 287(g)”) of the Immigration and Nationality Act

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(“INA”). That section allows for State and local law enforcement agencies,

such as the MCSO, to provide a limited federal presence within the

county prison system to investigate the immigration status of those

already in custody. See Empowering Local Law Enforcement to Combat

Illegal Immigration: Hearing Before the Subcomm. on Criminal Justice,

Drug Policy, and Human Resources of the. Comm. on Gov't Reform, 109th

Cong. 16 (2006) (statement of Kenneth A. Smith, Special Agent, ICE).

That Memorandum of Understanding was succeeded by subsequent

memoranda, with another Memorandum of Agreement executed in

February 2017 by the previous Mecklenburg County Sheriff.1

(R S App 102–21.) Under that agreement, MCSO 287(g) officers, after

being trained and certified by ICE, would perform certain immigration

officer functions “during the course of their normal duties while assigned

to MCSO jail/correctional facilities.” (Id. at 119.) The agreement

enumerated the immigration-officer functions that MCSO 287(g) officers

were authorized to perform. (Id. at 119–20.) Those functions included

“[t]he power and authority to serve warrants of arrest for immigration

1 Sheriff McFadden, who was elected November 6, 2018, terminated

the MCSO’s 287(g) agreement with ICE on December 4, 2018.

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violations” and “[t]he power and authority to detain and transport ...

arrested aliens subject to removal to ICE-approved detention facilities.”

(Id. at 119–20.)

II. Chavez’s and Lopez’s Cases

On June 5, 2017, Luis Lopez was arrested for robbery, felony

conspiracy, resisting a public officer, and misdemeanor breaking and

entering. (R p 39.) He was booked into the Mecklenburg County Jail. (See

id.) Thereafter, he was served with a Form I-200, an immigration arrest

warrant by an MCSO 287(g)-certified officer based upon probable cause

to believe that he is removable from the United States. (Id. at 58.) DHS

separately issued a Form I-247 detainer to the MCSO, requesting to be

informed in the event of Lopez’s release. (Id. at 72.)

On August 13, 2017, Carlos Chavez was arrested for driving while

intoxicated, interfering with emergency communications, and assault. (R

p 4.) He was also booked into the Mecklenburg County Jail. (See id.)

Thereafter, he was served with a Form I-200, immigration arrest warrant

by an MCSO 287(g)-certified officer based upon probable cause to believe

that Chavez is removable from the United States. (Id. at 23.) DHS

separately issued a Form I-247 detainer request to the MCSO, also

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requesting to be informed in the event of Chavez’s release. (Id. at 24.)

Both sets of arrest warrants and detainers were served by MCSO officers

upon both Chavez and Lopez pursuant to the 287(g) agreement between

the Sheriff’s Office and DHS. (R pp 5, 15, 19, 50, 54)

On October 13, Lopez’s bond was unsecured on his last remaining

state charge, and Chavez posted $100 cash bond on his last remaining

state charge. (Id. at 4, 39, 56.) As a result, both were no longer being held

in state custody. Upon release from state custody, ICE held them at the

Mecklenburg County Jail based on their federal immigration charges and

the administrative warrants the 287(g)-certified MCSO officers had

served upon them. (Id. at 24, 58.)

Chavez and Lopez each filed petitions for a writ of habeas corpus in

the superior court, alleging that they were unlawfully detained by the

MCSO. (R pp 3–20, 38–55, 75.) They argued that federal administrative

warrants do not authorize local officers to detain unlawfully present

aliens, that such detention may be premised only upon probable cause of

a crime, that the MCSO may not temporarily detain aliens based on

federal immigration detainers, and that 287(g) agreements could not

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authorize such detention without violating the Tenth Amendment. (See

id.)

The superior court granted both petitions and ordered that Chavez

and Lopez “be immediately brought before a judge of Superior Court for

a [] hearing [] to determine the legality of [their] confinement.” (R pp 25,

59.) The court also ordered that the MCSO Sheriff appear and file a

return. (See id.) Within hours, before any return was filed, the superior

court ordered that both Chavez and Lopez be immediately released

because “the I-200 form was a civil administrative warrant not issued by

a judicial official” and because “[t]he Sheriff’s office lacks authority to

arrest and hold an individual based on I-200 form.” (R pp. 29–30, 63–64,

81). The habeas orders did not acknowledge or address the MCSO

officers’ authority to arrest under 8 U.S.C. § 1357(g) or the 287(g)

agreement.

Both Chavez and Lopez were transferred to DHS custody from the

MCSO before the superior court issued its habeas orders. (See id.) But

the County filed two petitions for writs of certiorari and prohibition in

the court of appeals, requesting that the appellate court find such

decisions capable of repetition, issue a decision reversing the habeas

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petitions, and issue a writ prohibiting the enforcement of the underlying

orders and prohibiting the superior court from ruling on additional

federal immigration matters. Multiple habeas challenges raising

identical or similar issues were also filed in the superior court in

Mecklenburg County. On December 22, 2017, the court of appeals issued

a writ of prohibition against the superior court—barring the issuance of

any further habeas writs ordering the release of a person detained by the

MCSO for violations of federal immigration laws pursuant to its 287(g)

agreement. (R pp 83–86.)

After oral argument, the court of appeals issued an opinion in

November 2018 vacating the superior court’s issuance of the writs. 822

S.E.2d 131 (N.C. Ct. App. 2018). Addressing mootness, the court of

appeals applied North Carolina’s public-interest exception to address the

limits of local cooperation with ICE to hold detainees even though the

petitioners were no longer held by the MCSO. Id. at 138 (“The Sheriff’s

appeal presents significant issues of public interest because it involves

the question of whether our state courts possess jurisdiction to review

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habeas petitions of alien detainees ostensibly held under the authority of

the federal government.”).

The court of appeals then held that: (1) state law permitted the

MCSO to enter into a 287(g) agreement, allowing the officers to perform

the functions of immigration officers, see id. at 138–40 (noting how North

Carolina law “specifically authorizes state and local law enforcement

officers to enter into 287(g) agreements … and perform the functions of

immigration officers, including detention of aliens.”); (2) the federal

government had the preeminent power to regulate immigration and so

even if there were no 287(g) agreement, the superior court would not have

had jurisdiction to review the detentions at issue, as it lacked the power

to release aliens who were subject to federal immigration arrest warrants

and immigration detainers, id. at 141–43 (“The superior court did not

possess subject matter jurisdiction … to receive and review the merits of

Petitioners’ habeas petitions, or issue orders other than to dismiss for

lack of jurisdiction, as it necessarily involved reviewing and ruling on the

legality of ICE’s immigration warrants and detainer requests.”); and (3)

the Sheriff was acting as a federal agent by detaining the petitioners and

thus the superior court lacked jurisdiction, id. at 145 (“The Sheriff was

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acting under the actual authority of the United States by detaining

Petitioners under the immigration enforcement authority provided by

the administrative warrants and Form I-247A detainer requests for

Petitioners issued by ICE.”).

ARGUMENT

This Court should affirm the court of appeals’ vacatur of the

superior court’s habeas writs. This is because the superior court erred by

concluding that the MCSO, deputized to perform immigration functions

under federal law pursuant to 8 U.S.C. § 1357(g), lacked authority to

arrest and hold an individual based on a federal arrest warrant. Those

orders conflict with federal law and undermine “the interests of the

United States” by inhibiting local governments from cooperating with the

federal government on immigration enforcement. 28 U.S.C. § 517.

The State of North Carolina has similarly exercised its sovereign

authority to require that all governmental entities cooperate with federal

immigration enforcement. See N.C. Gen. Stat. §§ 153A-145.5(a), 160A-

205.2. Consistent with these laws, the MCSO previously entered into a

succession of 287(g) agreements with ICE, permitting federally trained

and certified MCSO officers “to perform [the] function[s] of an

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immigration officer in relation to the investigation, apprehension, or

detention of aliens in the United States.” 8 U.S.C. § 1357(g)(1). As the

Supreme Court of the United States has previously explained, these

“functions” include arresting and detaining removable aliens based on

civil immigration warrants. See Arizona v. United States, 567 U.S. 387,

407 (2012).

There is no dispute that federal officers may arrest and detain

aliens based on federal administrative warrants and detainers. Yet the

superior court held that MCSO deputies—duly authorized by federal and

state law to act as federal immigration officers and perform federal

functions under color of federal law—cannot perform the basic function

of executing a federal arrest warrant for a removable alien because

MCSO deputies lacked “authority to arrest and hold an individual based

on” a “civil administrative warrant” issued pursuant to federal law. (R pp

29, 63.) That conclusion was wrong and contrary to well-settled principles

of federalism and Fourth Amendment jurisprudence.

To start, the INA authorizes DHS to enter into formal agreements

with States and localities, granting state and local officers the “authority”

to “perform the functions of an immigration officer.” Arizona, 567 U.S. at

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408, 410 (citing 8 U.S.C. § 1357(g)(1)). The MCSO had such an agreement

with DHS at the time Chavez and Lopez were detained. And that

agreement delegated to the MCSO “[t]he power and authority to serve

warrants of arrest for immigration violations” and “[t]he power and

authority to detain and transport ... arrested aliens subject to removal to

ICE-approved detention facilities.” (R S p 119–20.)

As a consequence of the 287(g) agreement’s delegated federal power

to arrest, superior courts lack jurisdiction to issue habeas relief directed

at MCSO deputies performing authorized federal immigration

functions—like holding removable aliens pursuant to federal law.

Because the MCSO detained Chavez and Lopez under federal authority,

and at ICE’s direction and supervision through its enforcement

agreement, see 8 U.S.C. § 1357(g)(3), (8), the superior court—as a state

court—lacked jurisdiction to grant habeas relief. See, e.g., In re Tarble

(“Tarble’s Case”), 80 U.S. (13 Wall.) 397, 407 (1872). As the Supreme

Court explained long ago, state and federal courts “exercise jurisdiction

… within the same territory, but not in the same plane; and when one

takes into its jurisdiction a specific thing, that … is as much withdrawn

from the judicial power of the other as if it had been carried physically

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into a different territorial sovereignty. To attempt to seize it by a foreign

process is futile and void.” Covell v. Heyman, 111 U.S. 176, 182 (1884).

Moreover, the superior court also erred in concluding that MCSO

officers acting under federal authority may not effect an immigration

arrest based on a “civil administrative warrant.” (R pp 29, 63.) Just as

the Fourth Amendment permits federal officials to detain an alien based

on an administrative warrant supported by probable cause to believe that

the alien is removable, see 8 U.S.C. § 1226(a); Abel v. United States, 362

U.S. 217, 233 (1960), it permits local officials delegated authority to act

as federal immigration officers to detain the same alien based on the

same determination of probable cause, see, e.g., Arizona, 567 U.S. at 407.

The superior court suggested that only federal officers may effect civil

immigration arrests, and that the concept of “civil” probable cause does

not exist for state or local officials acting as federal immigration officers

under federal law. (See R pp 29, 63.) Those conclusions are wrong. See

City of El Cenizo v. Texas, 890 F.3d 164, 189–90 (5th Cir. 2018). This is

because probable-cause determinations made by federal officers may also

be relied upon by state or local officers when cooperating with the federal

government in immigration enforcement matters. See id.; see also

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Tenorio-Serrano v. Driscoll, 324 F. Supp. 3d 1053, 1066 & n.3 (D. Ariz.

2018).

Finally, this is a case with a voluntary agreement between a county

sheriff’s office and the federal government. Any suggestion that such an

arrangement is tantamount to “commandeering” and thus a violation of

the Tenth Amendment is meritless. Cf., e.g., Junior v. LaCroix, 263 So.

3d 159, 168 (Fla. Dist. Ct. App. 2018) (Rothenberg, J., concurring)

(“Notably, the County, itself, has not alleged coercion, and if the County

wished to make such a claim, its challenge would be in federal court.”).

I. The Superior Court Lacked Jurisdiction to Issue Writs Of Habeas Corpus Directed at MCSO Officers Performing Federal Immigration Functions.

Fundamentally, this case concerns whether state courts are

permitted to bar State and local law enforcement from cooperating with

federal immigration enforcement when such cooperation is explicitly

endorsed under both federal and state law. See 8 U.S.C. §§ 1357(g)(1) &

(3); N.C. Gen. Stat. § 128-1.1(c1). This cooperation facilitates the orderly

transfer of removable aliens, including dangerous criminal aliens, to

federal custody when they are released from state or local custody. See 8

U.S.C. §§ 1226(a), 1226(c), 1231(a). Without this cooperation, such aliens

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would be released into the communities, requiring federal officials to

attempt more dangerous arrests on the streets.

The relationship between North Carolina’s local law-enforcement

and the United States’ immigration-enforcement agencies is thus of

critical importance. The United States invites state and local law

enforcement to share information about potentially removable, criminal

aliens in their custody to facilitate federal processing of aliens arrested

by state authorities who have also committed immigration violations.

The court of appeals was, like many other appellate courts across the

country, correct in holding that the superior court lacked jurisdiction to

order the release of removable aliens held by the MCSO under color of

federal law when those officers were subject to an agreement with the

federal government under 8 U.S.C. § 1357(g) allowing them to enforce

immigration law and carry out the detentions at issue in this case.

A. Both Federal And North Carolina Law Authorize The MCSO To Perform Immigration Functions

Federal law. The federal government has “broad, undoubted power

over the subject of immigration and the status of aliens.” Arizona, 567

U.S. at 394. This includes authority to “arrest and hold an alien ‘pending

a decision on whether the alien is to be removed from the United States.’”

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Nielsen v. Preap, 139 S. Ct. 954, 959 (2019) (quoting 8 U.S.C. § 1226(a));

see also 8 U.S.C. §§ 1226 (c)(1); 1231(a)(1)(A), (2); 1357(a)(1), (2)

(similar).2 “In aid of this authority, Congress authorized the DHS to enter

agreements with State and local authorities to assist in specific

enforcement activity, including detention.” Perez-Ramirez v. Norwood,

322 F. Supp. 3d 1169, 1171 (D. Kan. 2018).

Most relevant to this case is how the INA authorizes formal

cooperative agreements between DHS, States, and localities where

trained and qualified state and local officers may, “subject to the direction

and supervision of [DHS],” 8 U.S.C. § 1357(g)(3), perform specified

immigration enforcement functions relating to investigating,

apprehending, and detaining aliens. Id. § 1357(g)(1)–(9). “Under these

agreements, state and local officials become de facto immigration officers,

competent to act on their own initiative.” El Cenizo, 890 F.3d at 180.

Deputized officers are thus authorized to perform a number of

immigration functions, including serving arrest warrants for

immigration violations. 8 U.S.C. §§ 1226(a), 1357(a); 8 C.F.R.

2 Following the Homeland Security Act of 2002, many references in

the INA to the “Attorney General” now mean the Secretary of Homeland Security. See, e.g., Clark v. Suarez Martinez, 543 U.S. 371, 374 n.1 (2005).

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§ 287.5(e)(3); see also City of Los Angeles v. Barr, — F.3d —, 2019 WL

3049129, at *9 (9th Cir. July 12, 2019) (describing how Ҥ 287(g)

partnerships … allow state or local officers to perform immigration officer

functions”); United States v. Sosa-Carabantes, 561 F.3d 256, 257–59 (4th

Cir. 2009) (discussing MCSO’s past 287(g) program).

Even without a formal agreement, States and localities may

“communicate with the [Secretary] regarding the immigration status of

any individual” or “cooperate with the [Secretary] in the identification,

apprehension, detention, or removal of aliens not lawfully present in the

United States,” 8 U.S.C. § 1357(g)(10), when that cooperation is pursuant

to a “request, approval, or other instruction from the Federal

Government,” Arizona, 567 U.S. at 410. Such cooperation may include:

“provid[ing] operational support in executing a warrant”; “allow[ing]

federal immigration officials to gain access to detainees held in state

facilities”; “arrest[ing] an alien for being removable”; and “responding to

requests for information about when an alien will be released from their

custody.” Id. The INA permits such cooperation whether it is imposed by

state or local directive or is implemented ad hoc by a local sheriff. See id.

at 413.

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One of the ways in which States and localities frequently cooperate

with federal immigration enforcement without a formal agreement is by

responding to federal requests for assistance, often contained in federal

immigration detainers issued by ICE.3 An immigration detainer notifies

a State or locality that ICE intends to take custody of a removable alien

who is detained in state or local criminal custody, and asks the State or

locality to cooperate with ICE in that effort in two main respects: (1) by

notifying ICE of the alien’s release date; and (2) by holding the alien for

up to 48 hours, based on ICE’s determination that it has probable cause

to believe that the alien is removable, until DHS can take custody. See

8 C.F.R. § 287.7(a) (describing notification of release), (d) (describing

request for temporary detention).4

DHS’s detainer form, Form I-247A, sets forth the basis for DHS’s

determination that it has probable cause to believe that the subject is a

removable alien. The form states that DHS’s probable-cause finding is

3 U.S. Customs and Border Protection (“CBP”), another DHS

component, also issues detainers, relying on the same DHS form. Not all CBP detainers require probable cause. 6 U.S.C. § 211. This brief addresses only ICE detainers, which do.

4 This is authorized by 8 U.S.C. §§ 1103(a)(3), 1226(a) and (c), 1231(a), and 1357(d). See Comm. for Immigrant Rights of Sonoma Cty. v. Cty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009).

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based on: (1) a final order of removal against the alien; (2) the pendency

of removal proceedings against the alien; (3) biometric confirmation of

the alien’s identity and a records match in federal databases that

indicate, by themselves or with other reliable information, that the alien

either lacks lawful immigration status or, despite such status, is

removable; or (4) the alien’s voluntary statements to an immigration

officer, or other reliable evidence that the alien either lacks lawful

immigration status or, despite such status, is removable. See Form I-

247A at 1, https://www.ice.gov/sites/default/files/documents/Document/

2017/I-247A.pdf.

The detainer form specifies that the State or locality should

“[m]aintain custody of the alien for a period NOT TO EXCEED 48

HOURS beyond the time when he/she would otherwise have been

released from your custody.” Form I-247A at 1 (emphasis in original). The

form provides that the “alien must be served with a copy of this form for

the detainer to take effect,” and that the existence of the detainer “should

not impact decisions about the alien’s bail, rehabilitation, parole, release,

diversion, custody classification, work, quarter assignments, or other

matters.” Id. The form encourages local law enforcement and the subject

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of the detainer to contact ICE’s Law Enforcement Support Center with

“any questions or concerns” about a detainer. Id. (emphasis added); see

also id. at 2.

As of April 2, 2017, ICE detainers must be accompanied by a signed

administrative warrant of arrest issued under 8 U.S.C. §§ 1226 or

1231(a). See ICE Policy No. 10074.2 ¶¶ 2.4, 5.2, https://www.ice.gov/sites/

default/files/documents/Document/2017/10074-2.pdf; see also Lopez-

Lopez v. Cty. of Allegan, 321 F. Supp. 3d 794, 799 (W.D. Mich. 2018). That

arrest warrant—either a Form I-200, Warrant for Arrest of Alien (issued

for aliens not yet subject to a removal order) or a Form I-205, Warrant of

Removal/Deportation (issued for aliens subject to a final removal order)—

are issued by an executive officer and sets forth the basis for that officer’s

probable-cause determination. See 8 C.F.R. §§ 236.1, 241.2, 287.5

(describing officers who may issue warrants). Except when the alien is

already detained by ICE, ICE may issue a detainer to a law enforcement

agency only when that agency has arrested the alien for a criminal

offense in an exercise of its independent arrest authority. See ICE Policy

No. 10074.2 ¶ 2.5. The policy also provides that a detainer may not be

“based upon the initiation of an investigation” and “may not establish

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probable cause of alienage and removability, for purposes of detainer

issuance, solely based on evidence of foreign birth and the absence of

records in available databases.” Id. ¶ 2.6.

The cooperation described above—whether it is pursuant to a

formal 287(g) agreement or without one (for example, through informal

cooperation with ICE detainers under 8 U.S.C. § 1357(g)(10))—occurs

under color of federal authority, rather than state authority. “An officer

or employee of a State or political subdivision of a State acting under color

of authority under this subsection, or any agreement entered into under

this subsection, shall be considered to be acting under color of Federal

authority for purposes of determining the liability, and immunity from

suit, of the officer or employee in a civil action brought under Federal or

State law.” 8 U.S.C. § 1357(g)(8) (emphases added). “This subsection”

includes both 8 U.S.C. § 1357(g)(1) (and so includes formal 287(g)

agreements) and 8 U.S.C. § 1357(g)(10) (and so includes cooperation

without a formal agreement). E.g., Santos v. Frederick Cty. Bd. of

Comm’rs, 725 F.3d 451, 463 (4th Cir. 2013) (“8 U.S.C. § 1357(g)(8)

provides that a local law enforcement officer acting under any agreement

with ICE under Section 1357(g) shall be considered to be acting under

- 20 -

color of federal authority for purposes of determining liability in a civil

action”); Silva v. United States, 866 F.3d 938, 942 (8th Cir. 2017)

(“Section 1357(g)(8) would take effect if any such claim were brought

against a local officer seeking damages”); see also Rios v. Jenkins, No. 18-

cv-082, 2019 WL 3070632, at *10 (W.D. Va. July 15, 2019) (“[L]ocal law

enforcement officials may cooperate with ICE in the detention or removal

of aliens not lawfully present in the United States … when such

cooperation is expressly requested or authorized by ICE[.]” (internal

citations, quotations, and alterations omitted)); Arias v. ICE, No. 07-cv-

1959 2008, WL 1827604, at *13–15 (D. Minn. Apr. 23, 2008) (joint

immigration task force resulting in arrests).

State law. North Carolina law likewise contemplates cooperation

with federal immigration enforcement, including through formal 287(g)

agreements. The governing rule is that absent affirmative evidence that

it “was the clear and manifest purpose of Congress” to abridge a State’s

historic police powers, a State retains the common-law police powers it

had when joining the United States. Arizona, 567 U.S. at 345 (quotation

marks and citation omitted). There is no requirement that, “before a state

law enforcement officer” may cooperate with federal immigration

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officials, “state law must affirmatively authorize the officer to do so.”

United States v. Santana-Garcia, 264 F.3d 1188, 1193–94 (10th Cir.

2001) (collecting cases).5 This Court has adopted this same view,

explaining long ago that this State and its subdivisions retain such police

powers at common law “[i]n the absence of legislative direction or

limitation” to the contrary and “subject to such limitations as the

Legislature may deem it wise to impose.” S. Ry. Co. v. Mecklenburg Cty.,

231 N.C. 148, 150–51 (1949). Thus, absent affirmative limitations, “what

is needful in the discharge of these intrinsically governmental functions

is largely within the discretion of the governing board of the county.” Id.

5 The overwhelming consensus in federal and state courts is that at

common law, a State’s police powers are not diminished simply because the state legislature has not explicitly provided authority for a specific action by a locality. See, e.g., United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983); United States v. Bowdach, 561 F.2d 1160, 1167–68 (5th Cir. 1977); Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928) (L. Hand, J.); Commonwealth v. Leet, 641 A.2d 299, 303 (Pa. 1994); Christopher v. Sussex Cty., 77 A.3d 951, 959 (Del. 2013); Dep’t of Pub. Safety & Corr. Servs. v. Berg, 674 A.2d 513, 518–20 (Md. Ct. App. 1996). The opposing view relies heavily upon the theory that States may not act on their common-law police powers absent affirmative legislation activating those powers. See Lunn v. Commonwealth, 78 N.E. 3d 1143, 1153–57 (Mass. 2017). Lunn represents the minority view, rests on Massachusetts law, conflicts with the authorities cited above, and, in any event, specifically declined to address a locality’s authority to enter into a “287(g) agreement[]” under Massachusetts law. Id. at 1158–59 & n.26.

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Far from withdrawing localities’ retained authority to cooperate

with federal immigration enforcement, the State has reaffirmed this

authority. N.C. Gen. Stat. §§ 153A-145.5(a) and 160A-205.2 together

provide that no “county” or “city” “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.”

Both provisions appear in sections of the North Carolina Code titled

“delegated exercise of the general police power,” N.C. Gen. Stat. §§ 153A-

145.5(a), 160A-205.2, and bar the exercise of state-derived police power

to limit a locality’s cooperation with federal immigration enforcement.

The court of appeals recognized these statutory endorsements of

cooperation and then turned to whether 287(g) agreements were

permissible in this specific context. See 822 S.E.2d at 139–40. Most

significantly, the court of appeals pointed to North Carolina statutory

authority for state and local law enforcement agencies and officials to

enter into 287(g) agreements with federal agencies. Id. at 139. That

statute specifically states:

Where authorized by federal law, 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. § 1357(g) if the agency has a Memorandum of

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Agreement or Memorandum of Understanding for that purpose with a federal agency. State and local law enforcement officers authorized under this provision are authorized to hold any office or position with the applicable federal agency required to perform the described functions.

N.C. Gen. Stat. § 128-1.1(c1) (2017). Under the generalia specialibus non

derogant canon of statutory interpretation, the court of appeals was

correct to conclude that localities retain authority under state law to

cooperate with ICE. 822 S.E.2d at 140 (citing Furr v. Noland, 404 S.E.2d

885, 886 (N.C. Ct. App. 1991) (“[W]here two statutory provisions conflict,

one of which is specific or ‘particular’ and the other ‘general,’ the more

specific statute controls in resolving any apparent conflict.”)).

Validity of the MCSO’s 287(g) agreement. Given the foregoing

points, the 287(g) agreement between the MCSO and DHS was valid

under both federal and state law. That agreement demonstrated how

authority had been properly delegated and that the MCSO officers were

operating under federal authority. Santos, 725 F.3d at 464; Sosa-

Carabantes, 561 F.3d at 257 & n.2.

Under the agreement, MCSO 287(g) officers, after being trained

and certified by ICE, could perform certain immigration officer functions

“during the course of their normal duties while assigned to MCSO

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jail/correctional facilities.” (R S p 119.) Those functions included “[t]he

power and authority to serve warrants of arrest for immigration

violations” and “[t]he power and authority to detain and transport ...

arrested aliens subject to removal to ICE-approved detention facilities.”

(Id. at 119–120.) Section X of the agreement, titled “ICE Supervision,”

states how “[i]mmigration enforcement activities” of MCSO officers are

“supervised and directed by ICE” and makes clear that “[p]articipating

MCSO personnel are not authorized to perform immigration officer

functions except when working under the supervision or guidance of

ICE.” (R S p 107.)

Moreover, as the INA makes clear, state and local officers

performing federal immigration functions under a 287(g) agreement (or

even cooperating informally with ICE detainers under 8 U.S.C.

§ 1357(g)(10)) act under color of federal, rather than state, authority. “An

officer or employee of a State or political subdivision of a State acting

under color of authority under this subsection, or any agreement entered

into under this subsection, shall be considered to be acting under color of

Federal authority for purposes of determining the liability, and immunity

from suit, of the officer or employee in a civil action brought under

- 25 -

Federal or State law.” 8 U.S.C. § 1357(g)(8) (emphases added). “This

subsection” includes both 8 U.S.C. § 1357(g)(1) (and so includes formal

287(g) agreements) and 8 U.S.C. § 1357(g)(10) (and so includes

cooperation without a formal agreement). See, e.g., Santos, 725 F.3d at

463 (noting how “a local law enforcement officer acting under any

agreement [with ICE under section 1357(g)] shall be considered to be

acting under color of federal authority” (alteration in original) (emphases

added) (internal quotation marks and ellipses omitted)).6

B. The Superior Court Seriously Erred By Failing To Acknowledge The Existence Of The MCSO’s 287(g) Agreement

Without addressing any of this background—nor even

acknowledging how the MCSO officers were authorized to perform

immigration functions under federal law, state law, and their 287(g)

agreement with ICE—the superior court granted habeas relief against

MCSO officers. The court of appeals was correct to vacate those orders

6 Even without section 1357(g)(8), MCSO would be deemed to be

acting under color of federal authority by virtue of its contractual relationship with ICE, which establishes a principal-agent relationship under federal or North Carolina law. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70–73 (2001); Roman v. Ashcroft, 340 F.3d 314, 320–21 (6th Cir. 2003); Holcomb v. Colonial Assocs., 358 N.C. 501, 509 (2004); Vaughn v. N.C. Dep’t of Human Res., 296 N.C. 683, 690 (1979).

- 26 -

because the superior court had no authority to issue them. This is

because state courts may not enjoin the activities of federal officers

performing federal immigration functions. 822 S.E.2d at 142 (“A state

court’s purported exercise of jurisdiction to review petitions challenging

the validity of federal detainers and administrative warrants issued by

ICE, and to potentially order alien detainees released, constitutes

prohibited interference with the federal government’s supremacy and

exclusive control over matters of immigration.”).

Given that MCSO officers were acting under federal authority and

consistent with North Carolina law, the superior court lacked authority

to issue a writ of habeas corpus directed at Chavez or Lopez, who were at

that time federal ICE detainees. It is settled law that, “[n]o state judge

or court, after they are judicially informed that the party is imprisoned

under the authority of the United States, has any right to interfere with

him, or to require him to be brought before them.” Ableman v. Booth, 62

U.S. (21 How.) 506, 524 (1859); 17A Charles Alan Wright et al., Federal

Practice and Procedure § 4213 (3d ed. 2007). Thus, state courts “cannot,

under any authority conferred by the States, discharge from custody

persons held by authority of the courts of the United States, or of

- 27 -

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

acting under its laws” because of “the supremacy of the Constitution and

laws of the United States.” Ex parte Royall, 117 U.S. 241, 249–50 (1886)

(Harlan, J.). The United States had exclusive authority over Chavez and

Lopez, and thus the writs of habeas corpus issued by the state superior

court were rightly vacated. See Tarble’s Case, 80 U.S. at 407. These

bedrock principles do not mean that detention decisions are

unreviewable; they simply mean that a federal court, rather than a state

court, must address them. See 28 U.S.C. § 2241.

The seminal case addressing this issue is the United States

Supreme Court’s decision in Tarble’s Case, which held that Wisconsin

courts lacked authority to grant habeas corpus relief to the plaintiff, a

minor who had enlisted in the United States Army without his father’s

consent. Citing the nature of dual sovereignty, the Court emphasized the

supremacy of the Constitution and the concomitant supremacy of the

federal government, explaining that “neither [state nor federal

governments] can intrude with its judicial process into the domain of the

other, except so far as such intrusion may be necessary on the part of the

- 28 -

National government to preserve its rightful supremacy in cases of

conflict of authority.” Tarble’s Case, 80 U.S. at 407–08.

The reasoning underlying Tarble’s Case applies here to bar state

and local courts from impinging on national prerogatives regarding

immigration enforcement. The Constitution requires “an uniform Rule of

Naturalization,” U.S. Const. art. I, § 8, cl. 4; Congress has instructed that

“the immigration laws of the United States should be enforced vigorously

and uniformly,” Immigration Reform and Control Act of 1986, Pub. L. No.

99-603, § 115(1), 100 Stat. 3359, 3384; and the Supreme Court has

described immigration policy as “a comprehensive and unified system.”

Arizona, 567 U.S. at 402. For these reasons, “the removal process is

entrusted to the discretion of the Federal Government,” id. at 409, “not

the 50 separate States,” id. at 395, and state governments may not

“intrude within the jurisdiction, or authorize any interference therein by

its judicial officers with the action of,” the United States in immigration

matters, Tarble’s Case, 80 U.S. at 407.

State courts have routinely applied the reasoning of Tarble’s Case

to immigration-related circumstances similar to those here. In State v.

Theoharopoulos, 240 N.W.2d 635 (Wis. 1976), for example, the Wisconsin

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Supreme Court rejected the use of state habeas to secure release of a

federal prisoner. In that case, the petitioner was in custody under a

federal “detainer warrant.” Because he had already served his state

sentence, and was detained solely upon the federal government’s

authority, the Court found that the trial court had no jurisdiction to issue

habeas relief: “The jurisdiction over the defendant was obtained by a

federal detainer warrant,” and “[t]he fact that the defendant at the time

of the filing of the petition was physically within the confines of the

Waukesha County Jail should not confuse the question.” Id. at 637. In

short, “state habeas corpus [wa]s inappropriate, because the defendant is

in the custody of federal authorities.” Id. at 638–39.

The court of appeals relied on similar reasoning to vacate the

superior court’s issuance of the writs. According to the court of appeals,

“The superior court did not possess subject matter jurisdiction … to

receive and review the merits of Petitioners’ habeas petitions, or issue

orders other than to dismiss for lack of jurisdiction, as it necessarily

involved reviewing and ruling on the legality of ICE’s immigration

warrants and detainer requests.” 822 S.E.2d at 142. This was in line with

other states’ decisions of the same issue. See, e.g., State v. Chavez-Juarez,

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923 N.E. 2d 670, 672 (Ohio Ct. App. 2009) (“We conclude that the trial

court could not adjudicate the validity of the federal detainer, because

the area of immigration and naturalization is within the exclusive

jurisdiction of the federal government.”); Ricketts v. Palm Beach Cty.

Sheriff, 985 So. 2d. 591, 593 (Fla. Dist. Ct. App. 2008) (“Once appellant

posts bond on his state charges ... the sheriff will not be holding appellant

pursuant to state authority but pursuant to federal authority” and a

“state court cannot adjudicate the validity of the federal detainer, as the

area of immigration and naturalization is within the exclusive

jurisdiction of the federal government.”). The court of appeals was correct

to follow these precedents.

Nothing has changed in the Supremacy Clause jurisprudence to

question the principle of Tarble’s Case when someone is detained under

color of federal law. See, e.g., LaCroix, 263 So. 3d at 162–63 (“[O]nce a

person in custody becomes subject to a valid federal immigration

detainer, he or she no longer is held in the custody of the state. On the

date of his petition for habeas corpus relief, LaCroix’s physical location

was a county jail cell, but his custodial status was established under

federal authority. The federal courts have exclusive jurisdiction over a

- 31 -

person in custody pursuant to valid federal authority.” (citing Ableman,

62 U.S. at 523–24)); Galarza v. State, No. 13-0917, 2014 WL 4230194, at

*3 (Iowa Ct. App. Aug. 27, 2014) (“[The alien detainee] cannot use the

Iowa habeas law to command action by federal immigration officials.”),

aff’d 864 N.W.2d 122 (Iowa 2015); In re Azurin, 87 Cal. App. 4th 20, 26

(2001) (reversing order granting state habeas relief from plea when

Azurin was in custody of the INS), adopted by People v. Villa, 202 P.3d

427 (Cal. 2009); accord Ex parte Corretjer, 50 P.R. Dec. 211, 22 (1936)

(holding that a local court lacks jurisdiction to adjudicate a habeas claim

when the petitioner is being detained under the authority of the United

States).

So too here. The court of appeals correctly recognized that these

principles controlled and required vacatur of the superior court’s orders.

There is no dispute that the MCSO deputies were authorized under their

287(g) agreement to carry out the functions of a federal immigration

officer, including by arresting and detaining Chavez and Lopez for their

removal proceedings based upon execution of an administrative warrant.

Such arrests and detention under a 287(g) agreement occur pursuant to

the “authority of ... officers of the General Government acting under its

- 32 -

laws.” Ex parte Royall, 117 U.S. at 249–50. State court intrusion into

when someone is “confined under the authority, or claim and color of the

authority, of the United States,” Tarble’s Case, 80 U.S. at 409, is

preempted by federal law, given “the supremacy of the Constitution and

laws of the United States” in this sphere, Royall, 117 U.S. at 249–50.

Thus, the superior court erred by failing to acknowledge the

existence of the MCSO’s 287(g) agreement and its effect on the court’s

habeas jurisdiction. The superior court lacked jurisdiction over the

petitions. Chavez and Lopez, and all other similarly situated individuals,

must instead bring their habeas claims in federal court, pursuant to a

federal writ of habeas corpus. See 28 U.S.C. § 2241; accord

Theoharopoulos, 240 N.W.2d at 639 (because “the only possible remedy

is that afforded by ... federal habeas corpus” in 28 U.S.C. § 2241).

II. Immigration Warrants Comply With The Fourth Amendment.

Although not addressed directly by the court of appeals, to the

extent that the superior court may have suggested that even if the MCSO

deputies were acting under federal authority, detaining Chavez and

Lopez pursuant to a federal immigration warrant was unlawful under

the Fourth Amendment, that was also mistaken. Three points illustrate

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the superior court’s error: (1) federal officials can constitutionally arrest

aliens pursuant to a federal administrative warrant; (2) the lawfulness

of such arrests under the Fourth Amendment does not change when local

officials arrest someone pursuant to federal direction and control; and

(3) under the “collective knowledge” doctrine, MCSO officers acting as

federal officers may rely on the probable-cause determinations made by

ICE officials communicated to the MCSO through a federal immigration

warrant or detainer.

First, the Fourth Amendment allows for civil arrests of aliens based

on probable cause of removability contained in an administrative

warrant or a detainer supported by an administrative warrant. The

“Fourth Amendment does not require warrants to be based on probable

cause of a crime, as opposed to a civil offense.” United States v. Phillips,

834 F.3d 1176, 1181 (11th Cir. 2016). Arrests may rest upon probable

cause of any legal violation, civil or criminal. See, e.g., El Cenizo, 890 F.3d

at 187–88 (collecting cases). Indeed, given that “[i]n determining whether

a search or seizure is unreasonable, [courts] begin with history,”

including “statutes and common law of the founding era,” Virginia v.

Moore, 553 U.S. 164, 168 (2008), that understanding is especially settled

- 34 -

in the immigration context, where there is “overwhelming historical

legislative recognition of the propriety of administrative arrest[s] for

deportable aliens,” Abel, 362 U.S. at 233.

The superior court suggested that warrants issued under 8 U.S.C.

§ 1226(a) are problematic because they “are a civil administrative

warrant not issued by a judicial official,” such that any official, federal or

state, may not “arrest and hold an individual based” on such a warrant.

(R pp 29, 63.) But given the civil nature of immigration enforcement, an

executive immigration officer—or a local officer with delegated authority

to act as a federal immigration officer—can constitutionally make the

necessary probable-cause determination. “[L]egislation giving authority

to the Attorney General or his delegate to arrest aliens pending

deportation proceedings under an administrative warrant, not a judicial

warrant within the scope of the Fourth Amendment,” has existed “from

almost the beginning of the Nation.” Abel, 362 U.S. at 234 (emphasis

added). “It is undisputed that federal immigration officers may seize

aliens based on an administrative warrant attesting to probable cause of

removability.” El Cenizo, 890 F.3d at 187 (emphasis in original); see

Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 876–80 (9th Cir. 2007) (in

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immigration context, warrants may be issued “outside the scope of the

Fourth Amendment’s Warrant Clause”).

Second, because the Fourth Amendment allows for immigration

arrests based on administrative warrants, local officers like those at the

MCSO could do the same in their capacity as 287(g) federal officers.

MCSO officials need only “reasonably believe[] that appellant was the

subject of a [facially valid] federal arrest warrant.” United States v.

McDonald, 606 F.2d 552, 553 (5th Cir. 1979) (per curiam). As the

Supreme Court has explained, if the federally deputized 287(g) officer has

“received training in the enforcement of immigration law,” he may

execute immigration warrants. See Arizona, 567 U.S. at 408; accord

Santos, 725 F.3d at 463. This is because the Fourth Amendment does not

apply differently to state and local officers. “The Fourth Amendment’s

meaning [does] not change with local law enforcement practices.”

Virginia, 553 U.S. at 172. To hold otherwise would cause Fourth

Amendment “protections [to] vary if federal officers were not subject to

the same statutory constraints as state officers.” Id. at 176. And this

State’s “law of search and seizure and the requirements of the Fourth

Amendment to the Constitution of the United States are the same.” State

- 36 -

v. Gwyn, 406 S.E.2d 145, 146 (N.C. Ct. App. 1991). Thus, the legality of

an arrest made by a local officer is especially certain where, as here, the

officer is not just arresting for a federal offense, but doing so under color

of federal authority, supported by a federal arrest warrant. See Arizona,

567 U.S. at 408.

Third, arrests may lawfully be made where the probable-cause

determination is made by one official (here, a federal ICE officer) and

relied upon by another (here, an MCSO officer). Put differently, local

officers may rely upon ICE’s findings of probable cause, as articulated in

an administrative warrant, to detain the subject of a warrant. United

States v. Hensley, 469 U.S. 221, 231 (1985); State v. Zuniga, 312 N.C. 251,

260 (1984) (applying federal collective-knowledge rule and holding that

“law enforcement officer may rely upon bulletins from other officers as

the basis for an arrest” if “the originating officer himself had probable

cause”). This rule applies when “the communication [is] between federal

and state or local authorities,” 3 Wayne R. LaFave et al., Search and

Seizure: A Treatise on the Fourth Amendment § 3.5(b) (5th ed. 2016)

(collecting cases), including when a state or local officer arrests someone

based upon probable cause from information received from an

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immigration officer, see, e.g., El Cenizo, 890 F.3d at 187–88 (explaining

that an “administrative warrant attesting to probable cause of

removability” accompanying an “ICE-detainer request” “constitutes a

paradigmatic instance of the collective-knowledge doctrine”).

In sum, the Fourth Amendment allows MCSO officers, following

ICE’s direction and supervision under a 287(g) agreement, to effect

federal arrests based on federal administrative warrants attesting to

probable cause of civil removability. The superior court erred to the

extent that it ruled to the contrary.7

7 Even if no 287(g) agreement existed, a local officer’s seizure of an

alien based on a federal administrative warrant and detainer, at the United States’ request, is consistent with the Fourth Amendment, because “[u]nder the collective-knowledge doctrine … the ICE officer’s knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability.” El Cenizo, 890 F.3d at 188. Thus, there is no violation of the INA or Fourth Amendment where state or local officers—even without a 287(g) agreement—honor ICE detainers or administrative warrants based upon probable cause of an alien’s removability. See, e.g., id. at 189 (cooperation with federal detainer requests is consistent with Fourth Amendment because cooperation requires “a predicate federal request before local officers may detain aliens for the additional 48 hours”); Santos, 725 F.3d at 467 (detention by state officer lawful when “at ICE’s express direction,” but not if made “before dispatch confirmed with ICE that the warrant was active”); United States v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir. 2014) (finding the claim that a state officer could not detain an alien on behalf of federal officers “meritless”).

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III. The MCSO’s Voluntary Entry Into A 287(g) Agreement Does Not Violate The Tenth Amendment.

Finally, certain amici have argued (as was argued to the superior

court) that cooperation with federal immigration enforcement pursuant

to a 287(g) agreement violates the Tenth Amendment’s anti-

commandeering principle. See, e.g., ACLU of N.C. Amicus Curiae Brief

at 15–16. That argument is baseless.

The Tenth Amendment provides that “[t]he powers not delegated

to the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people.” Federal

statutes enacted under Congress’s plenary power over immigration are

consistent with the Tenth Amendment unless they commandeer a

State’s executive officials, see Printz v. United States, 521 U.S. 898, 933

(1997), or legislative processes, see New York v. United States, 505 U.S.

144, 161–66 (1992). Commandeering requires compulsion or a lack of

choice. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602

(2012) (plurality opinion); see also United States v. Bostic, 168 F.3d 718,

724 (4th Cir. 1999) (holding that a federal gun statute does not violate

the Tenth Amendment because it was validly passed under the

Commerce Clause and imposed no “affirmative obligation” on States).

- 39 -

There is no commandeering of any branch of state government here

because the 287(g) program imposed no affirmative duty of any kind on

the MCSO and is a wholly voluntary program—as evidenced by Sheriff

McFadden’s voluntary termination of the agreement. See 8 U.S.C.

§ 1357(g)(9) (“Nothing in this subsection shall be construed to require

any State or political subdivision of a State to enter into an agreement

with the Attorney General under this subsection.”). Under the 287(g)

agreement that existed in this case, the federal government did not

require the MCSO to adopt or enforce federal law. Instead, the MCSO

voluntarily entered into the 2006 Memorandum of Understanding, the

MCSO voluntarily entered into the 2017 Memorandum of Agreement,

and the MCSO continues to voluntarily defend its victory at the court of

appeals to vindicate its own rights under the Tenth Amendment.

Moreover, even without the 287(g) agreement, immigration detainers

accompanied by arrest warrants are requests, rather than mandatory

commands. See, e.g., Galarza v. Szalczyk, 745 F.3d 634, 644 (3d Cir.

2014). They present no commandeering problem.

Thus, any Tenth Amendment argument is meritless.

- 40 -

CONCLUSION

This Court should affirm. The superior court lacked jurisdiction

and the court of appeals was correct to vacate its orders of release for

persons detained under federal authority.

Dated: July 29, 2019 Respectfully Submitted,

JOSEPH H. HUNT Assistant Attorney General R. ANDREW MURRAY WILLIAM C. PEACHEY Attorney for the United States Director Office of Immigration Litigation GILL P. BECK District Court Section NC State Bar No. 13175 Civil Chief, Assistant EREZ REUVENI United States Attorney Assistant Director United States Courthouse 100 Otis Street, Room 233 LAUREN C. BINGHAM Asheville, NC 28801 Senior Litigation Counsel Telephone: 828-259-0645 gill.beck@usdoj.gov /s/ Joshua S. Press s JOSHUA S. PRESS Trial Attorney U.S. Dept. of Justice, Civil Division P.O. Box 868 Ben Franklin Station

Washington, D.C. 20044 Telephone: (202) 305-0106 Facsimile: (202) 305-7000 joshua.press@usdoj.gov Counsel for Amicus Curiae the United States of America

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CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2019, I served a copy of the

foregoing in the above-captioned actions upon the parties by depositing

the same in the U.S. Mail, first-class postage prepaid, addressed to:

Rob Heroy Goodman Carr, PLLC 301 S. McDowell St., Ste. 602 Charlotte, NC 28204 Sejal Zota 54 Beverly Drive Durham, NC 27707 Sean Perrin Womble Bond Dickinson (US) LLP 301 S. College Street, Ste. 3500 Charlotte, NC 28202

Respectfully submitted, this the 29th day of July, 2019.

/s/ Joshua S. Press s JOSHUA S. PRESS Trial Attorney U.S. Dept. of Justice Civil Division P.O. Box 868 Ben Franklin Station

Washington, D.C. 20044 Telephone: (202) 305-0106 Facsimile: (202) 305-7000 joshua.press@usdoj.gov