IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-317 Filed: 6 November 2018 Mecklenburg County, No. 17 CR 230629-30 CARLOS CHAVEZ, Petitioner, v. IRWIN CARMICHAEL, SHERIFF, MECKLENBURG COUNTY, Respondent. Mecklenburg County, No. 16 CR 244165 LUIS LOPEZ, Petitioner, v. IRWIN CARMICHAEL, SHERIFF, MECKLENBURG COUNTY, Respondent. Appeal by respondent from orders entered 13 October 2017 by Judge Yvonne Mims-Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 October 2017. National Immigration Project of the National Lawyers Guild, by Sejal Zota, and Goodman Carr, PLLC, by Rob Heroy, for petitioners Luis Lopez and Carlos Chavez. Womble Bond Dickenson (US) LLP, by Sean F. Perrin, for respondent. U.S. Department of Justice Civil Division, by Trial Attorney Joshua S. Press, for amicus curiae United States Department of Justice. TYSON, Judge. CHAVEZ V. CARMICHAEL Opinion of the Court Mecklenburg County Sheriff Irwin Carmichael (“the Sheriff”) appeals, in his official capacity, from two orders of the superior court ordering the Sheriff to release two individuals from his custody. We vacate the superior court’s orders and remand to the superior court to dismiss the habeas corpus petitions for lack of subject matter jurisdiction. I. Background A. 287(g) Agreement and ICE Detainer Requests The Sheriff and Immigration and Customs Enforcement (“ICE”), an agency under the jurisdiction and authority of the United States Department of Homeland Security (“DHS”), entered into a written agreement (the “287(g) Agreement”) on 28 February 2017 pursuant to 8 U.S.C. § 1357(g)(1). The federal Immigration and Nationality Act (“INA”) authorizes DHS to enter into formal cooperative agreements, like the 287(g) Agreement, with state and local law enforcement agencies and officials. See 8 U.S.C. § 1357(g). Under these agreements, state and local authorities and their officers are subject to the supervision of the Secretary of Homeland Security and are authorized to perform specific immigration enforcement functions, including, in part, investigating, apprehending, and detaining illegal aliens. 8 U.S.C. §§ 1357(g)(1)-(9). In the absence of a formal cooperative agreement, the United States Code additionally provides local authorities may still “communicate with [ICE] regarding the immigration status of -2- CHAVEZ V. CARMICHAEL Opinion of the Court any individual . . . or otherwise cooperate with [ICE] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(A)-(B). Upon request from DHS, state and local law enforcement may “participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities.” Id. However, state and local officers may not make unilateral decisions concerning immigration enforcement under the INA. Id. Federal agencies and officers issue a Form I-247 detainer regarding an alien to request the cooperation and assistance of state and local authorities. 8 C.F.R. § 287.7(a), (d). An immigration detainer notifies a state or locality that ICE intends to take custody of an alien when the alien is released from that jurisdiction’s custody. Id. ICE requests the state or ...
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