EXCLUSIVE — A prominent sheriff who for years refused to turn over illegal immigrants is waging a pitched fight with federal authorities that has taken on new significance with President Donald Trump’s return to the White House.
Mecklenburg County Sheriff Garry McFadden, a second-term Democrat in Charlotte, said he would gladly cooperate with U.S. Immigration and Customs Enforcement but would risk lawsuits if he did so.
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“Sheriffs are the ones who are going to have to … hold the torch and also carry out this,” McFadden said in a Zoom interview with the Washington Examiner this week. “But the sheriffs are also going to be the ones who these lawsuits and claims will come against.”
After being elected in 2018, the law enforcement officer with 44 years of experience declined to honor ICE requests to detain and turn over illegal immigrants in his jail. Following a change in state law last year, McFadden has agreed to hold those inmates for a 48-hour waiting period but is still not turning them over to ICE.
His stance has caused a protracted standoff with the Trump administration as it ramps up interior enforcement of immigration law, with each side pointing a finger at the other over compliance.
McFadden maintains that he is “cooperating” with the actual law and that ICE’s detainer requests fall short of the legal hurdle required for inmates to be released: a warrant signed by a federal judge.
But ICE maintains that McFadden is taking a “selective approach” that puts the community at risk while failing to fulfill even the basic requirement of notifying federal immigration authorities.
“While the Sheriff asserts an understanding of what a detainer is and is not, the reality is that declining to cooperate with ICE undermines public safety,” ICE spokesman Lindsay Williams wrote in an email. “By refusing to notify ICE prior to the release of these individuals, the Sheriff knowingly allows potentially dangerous individuals to evade federal immigration enforcement and to be released back into the community.”
Finding sanctuary in a non-sanctuary city
For years, “sanctuary” cities and states have made a name for themselves as places that welcome noncitizens regardless of their immigration status.
But those sanctuary jurisdictions have simultaneously clashed with federal authorities as local elected officials vote to forbid law enforcement from turning over illegal immigrants in custody for non-immigration offenses, with few exceptions.
Neither Charlotte nor Mecklenburg County, the second-most populated county in the state, have sanctuary policies. Yet McFadden has refused since his election in 2018 to turn over immigrant detainees to ICE.
North Carolina is purple overall, but McFadden represents a decidedly blue county. Last November, 65% of Mecklenburg voters picked the Democratic presidential nominee, former Vice President Kamala Harris, compared to just 32% who backed President Donald Trump, according to state Board of Elections data.
Holding out under Trump
McFadden’s decision not to turn over detainees to ICE without a federal judge’s signed warrant has taken on new life since Trump took office in January. Mecklenburg County is one of a few across the state that is not in lockstep with the administration as it wages its mass deportation scheme.
When Mecklenburg County jail receives a new inmate who is an illegal immigrant, officers will check that individual’s name and fingerprints against the national criminal database. That check alerts ICE that someone who is illegally present in the country has been booked into the jail.
Officers at the jail will also ask the detainees about their immigration status. If they cannot determine a detainee’s status, they will contact ICE for clarification, which lets the agency know that someone illegally in the country is being held at the jail.
For years, ICE has taken the information it receives from counties nationwide to submit a “detainer,” a document sent to jails asking that they hold the individual for an additional 48 hours after the civil judge presiding over the case orders the detainee to be released.
Sheriffs in jurisdictions across the country have honored these detainer requests, including many in North Carolina, but McFadden said he believes doing so would run afoul of the law.
“A detainer is only signed by an ICE officer. It’s not vetted out by a judicial official,” said McFadden. “If a judicial official sends me an order to keep this person in custody, I will. If a judicial official tells me to release this person from my custody, I will, and that is following the law.”
Federal officers from ICE will also send over a document called an administrative warrant, similar to a detainer, to pick up the immigrant and transfer the individual to federal custody. However, there is some dispute over what kind of a judge must sign off on the transfer of custody.
McFadden appears to want a federal criminal warrant submitted for each individual, which would require a district court judge to weigh in on all transfers rather than having a magistrate judge in the county get involved.
“If you believe that this person is that dangerous during this time, you should seek a federal criminal warrant, a criminal indictment, and then if you want to present him before a federal judge, you will bring me a writ,” said McFadden.
A writ would allow the inmate to remain in local police custody but permit ICE to transport that person to federal court for appearances and ensure the inmate is ultimately returned to the local jail for legal proceedings for county charges.
Former immigration judge Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, said judicial warrants do not technically exist in the law and that the process for ICE seeking custody of a locally jailed immigrant has been complicated over the years by sanctuary cities.
“Reference to ‘judicial warrants’ is simply a fig leaf relied upon by sanctuary jurisdictions to cover their lack of interest in utilizing the full power of the U.S. government against criminal aliens,” Arthur wrote in a blog post shared with the Washington Examiner. “There is no form to a file to obtain such a warrant; again, no procedure of which I am aware to seek one; and no body of law for judges to rely on in the issuance of said document.”
North Carolina law changes
Last November, North Carolina enacted House Bill 10, which made it easier for ICE to get local sheriffs to detain inmates past their release dates. Still, it has fallen short as ICE tries to get illegal immigrants out of county jails.
When an illegal immigrant inmate is set to be released, ICE can issue a detainer request or administrative warrant to the jail. The sheriff’s office then takes those documents and presents them to a magistrate judge, who will decide whether there is enough evidence that the detainee is the individual ICE believes them to be. The magistrate would then issue a 48-hour hold that the immigrant must remain in jail, which is meant to give ICE time to show up for a transfer of custody.
Since the law went into effect, ICE has issued nearly 200 detainers that the judge approved, ordering those inmates to be held for an additional 48 hours.
McFadden said the magistrate has allowed all suspected illegal immigrants at his jail to be detained for an additional 48 hours so that ICE can pick them up, but ICE has not shown up in any of the cases. It is the magistrate judge’s decision, not McFadden’s, to honor the ICE detainer.
“It’s a waste of time [for ICE] knowing you’re not going to pick them up,” said McFadden.
McFadden added that under HB 10, he is not required to notify federal immigration officers when an immigrant is released after the 48-hour hold is over.
Republican State Rep. Destin Hall, the lead sponsor of HB 10, did not respond to a request for comment, but the North Carolina state legislature is now trying to expand HB 10 with the introduction in early March of the Criminal Illegal Alien Enforcement Act, which would require sheriffs to directly notify ICE of illegal immigrants in custody, including when they are getting released.
If passed, that bill would force McFadden to work more directly with ICE despite the federal agency not obtaining criminal warrants to pick up immigrants.
Legal implications of ICE detainers
David Bier, director of immigration studies at the libertarian Cato Institute, said McFadden was not misguided to prioritize his legal concerns over working with ICE because he could very well face lawsuits for detaining people without a judge’s order.
“I do agree, and there is caselaw on this point from across the country,” Bier wrote in an email. “The [American Civil Liberties Union] has a list of settlements that they have obtained for people detained based on ICE administrative warrants.”
Without a writ or document signed by a judge, a number of scenarios are possible beyond the lawsuit, according to the sheriff.
If McFadden were to release an immigrant to ICE on just a detainer, it could prompt the district attorney to have to drop the criminal charges because they are no longer locally detained.
ICE bristles at McFadden
McFadden maintains that he would have no problem turning over immigrants in his jail if ICE pursues a criminal indictment. Williams flatly argued McFadden was placing the public at risk by refusing “to honor ICE detainers.”
“The Sheriff acknowledges an obligation to turn over individuals subject to federal criminal warrants; however, he refuses to do the same for individuals subject to ICE detainers even though those individuals may also have extensive criminal histories,” Williams wrote in a statement. “This selective approach to cooperation creates unnecessary vulnerabilities and ignores the broader responsibility of ensuring community safety.”
Obtaining a criminal warrant “takes a lot of leg work” on ICE’s part, he said. Mecklenburg County is just one of hundreds of counties in ICE’s Atlanta field office region, with most adhering to the detainer requests.
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McFadden claimed that ICE has never discussed the problem with him or vice versa but said he would welcome it. For now, he claimed the detainer approach, not his own, is what makes communities less safe.
“It makes our city unsafe at the way that it is now being operated,” said McFadden. “It makes our citizens unsafe, it makes our residents unsafe, and it makes our communities unsafe.”