Mecklenburg County Sheriff McFadden speaks against House Bill 370
An immigrant living here illegally was booked into Mecklenburg County jail. Immigration and Customs Enforcement asked the sheriff to keep him there for them to pick him up. The sheriff, citing established policies and due process concerns, refused. So they accused him of creating a “public safety threat.”
If the story sounds familiar, that’s because it is. The arrest of Oscar Pacheco Leonardo in Charlotte, like a similar incident earlier this year, has added fuel to a months-long debate on whether sheriffs should collaborate with federal officials on immigration enforcement.
This time, it’s happening on the eve of a key vote in the state legislature on a controversial bill that would force sheriffs to cooperate with ICE. Gov. Roy Cooper, a Democrat, has called the bill “unconstitutional.”
Pacheco, 33, was arrested in Charlotte on June 14 on charges of first-degree rape and indecent liberties with a minor. He had previously been deported from the U.S. in July 2006. Officials say he later re-entered the country, a felony under federal law.
Upon his arrest, ICE issued an immigration detainer — a request from the agency to hold him in jail until ICE officers could assume custody. But Pacheco was released June 16, two days later, after paying a $100,000 bond. ICE officers arrested him directly on Aug. 9.
Pacheco’s release from jail is consistent with policies set by Mecklenburg County Sheriff Garry McFadden, who campaigned on a platform of ignoring these voluntary detainer requests.
He has pointed to appeals court rulings that say detainers violate the 4th Amendment. And he has said distancing himself from ICE improves trust among the county’s immigrant communities.
Immigration officials and Republicans alike have fought hard against his policies. Earlier this summer, they rang alarms around the case of Luis Pineda Ancheta, a Honduran man who had been twice arrested — once following a nine-hour standoff with a police SWAT team — and twice released from Mecklenburg jail. (He was later arrested by ICE.)
But advocates have also said that ICE is unfairly politicizing these incidents. If the inmate was here legally, they say, McFadden’s detainer policy would not be a subject of debate.
Across the state, several other African American Democratic sheriffs in some of the state’s most populous counties — Wake, Durham, Buncombe and Forsyth — also stopped honoring detainers since assuming office in November.
That has stirred a backlash from conservative politicians: Republican state lawmakers are pushing a bill that would force sheriffs to comply with detainers or risk being removed from office. That bill, which ICE reportedly consulted on, is up for a vote before the state House on Tuesday.
In Congress, meanwhile, Sen. Thom Tillis, a North Carolina Republican, has proposed similar legislation, which could make these sheriffs subject to possible civil action by victims and the loss of federal grants.
(On Monday, Tillis posted to Twitter about Pacheco’s case, writing that the bill would “hold sanctuary jurisdictions accountable.”)
Sean Gallagher, the ICE field office director who oversees the Carolinas and Georgia, said in a statement that McFadden’s policies have made Mecklenburg “less safe today than last year.”
The decision on whether — and how — to release an inmate from jail falls to a magistrate or judge, not the sheriff or his deputies.
Yet Gallagher said that McFadden’s policy on detainers “serves as an open invitation to aliens who commit criminal offenses that Mecklenburg County is a safe haven for persons seeking to evade federal authorities,” he said.
His statement also included a list of 22 other instances in which detainers were ignored by McFadden’s office since February. The suspects in those cases, all immigrants living in the U.S. illegally, had been charged with a range of crimes and were then released from jail.
In a statement, McFadden said that given Pacheco’s deportation history, ICE could have sought a criminal arrest warrant to keep him in Mecklenburg jail for longer. His office does comply with those warrants, McFadden said, but ICE did not seek one out.
“The reasons for that decision have yet to be satisfactorily explained to me or to the public,” he said in a statement.
ICE spokesman Bryan Cox refused to provide an explanation to the Observer. However, he did challenge McFadden to call ICE and inform the agency when it is releasing “a dangerous criminal offender” from the jail.
“They could do that without holding a person for one second longer than they otherwise would,” he said in an email. “And yet they refuse to do so. That is the pure definition of politics over public safety.”
(As a matter of policy, Forsyth and Orange counties both ignore ICE’s detainer requests, but they do alert the agency when releasing an inmate who was subject to that request.)