By Hannah Critchfield
UPDATE: Since this story published, three more North Carolina jails have entered this new agreement – in Avery County, Brunswick County, and Yancey County. It’s the first time any of them have formally partnered with ICE.
This brings the current number of NC jails participating in the Warrant Service Officer program to nine.
The call came after a period of relative silence.
“ICE is at my door,” the man told Stefania Arteaga, immigrants’ rights organizer at the American Civil Liberties Union of North Carolina.
“They’ve been to six other houses in my neighborhood already,” the man said.
On that day in May, Arteaga was volunteering as a hotline operator for Comunidad Colectiva, a Charlotte-based grassroots organization that verifies reports of ICE activity in the community. Mary Jose Espinosa, an organizer with the group, and Zoila Velasquez, an immigration attorney who was also on the call, said they were able to confirm this account.
ICE enforcement has dropped off some during the pandemic – but their work in North Carolina hasn’t stopped completely.
Six North Carolina jails have entered into new contracts with Immigration and Customs Enforcement during the pandemic, under an agreement called the Warrant Service Officer, or WSO, program, which was initiated in 2019.
“It was really shocking because it was in the middle of the pandemic,” said Arteaga. “ICE was banging at his door, and they were accompanied by the Cleveland County Sheriff’s Office, who had just signed their WSO.”
Called the “287(g) lite” by advocates, it allows jails particularly those in smaller or rural areas, to partner with ICE without the costs associated with the more well-known, more controversial collaboration agreement which has been available since 1996. The first North Carolina county to participate in the 287(g) program was Mecklenburg County in 2006.
As the execution of the new program remains opaque, health experts and migrant advocates worry that its mere existence increases the risk that North Carolina immigrants – and others in jails – will contract COVID-19.
‘A new iteration of 287(g)’
In 2018, voters elected Black Democratic sheriffs in five of the state’s most populous counties — each ran on platforms that included limiting cooperation with ICE. Shortly after taking office, sheriffs in Buncombe, Durham and Forsyth counties announced they would no longer honor ICE holds on immigrants in their jails. Sheriffs Garry McFadden and Gerald Baker in Mecklenburg and Wake County respectively joined in, and also terminated their 287(g) contracts, which had resulted in thousands of deportations over the last decade-and-a-half. Those contracts allowed local law enforcement to act as federal immigration agents, including investigating the immigration status of people brought to the county jail on unrelated accusations and issuing documents to initiate deportation proceedings.
Arteaga said adoption of this new program by several jails in smaller jurisdictions signals a pushback against the big counties’ abandonment of the 287(g) program, and he suggests some counties aren’t ready for North Carolina to cut ties with ICE entirely.
“Now, we’re seeing a new iteration of 287(g) agreements popping up across the state,” said Arteaga.
The Warrant Service Officer Program, a subset of the 287(g) program, allows jail deputies to issue arrest warrants on behalf of the immigration agency to people within their custody and hold undocumented immigrants for longer within their facility, giving ICE more time to pick them up and take them to long-term detention.
The program is “intended for rural jurisdictions that lack the budget and personnel resources to become 287(g) partners,” according to the ICE announcement of the initiative.
It requires less training – one day versus four weeks. Neither 287(g) programs nor WSOs have an expiration date, but jails participating in 287(g) agreements must undergo review every three years, according to Lindsay Williams, ICE spokesperson. No such requirement exists for the new warrant program.
The new agreements are in areas that overwhelmingly voted for Donald Trump in the 2016 presidential election. Many are rural counties that depend on immigrant labor within the farmwork and meatpacking industries.
There have been legal questions raised about the constitutionality of such programs. Civil rights advocates argue that sheriffs and local law enforcement officers do not have the power to hold people suspected of violating immigration law without a federal judge’s order.
The issue has yet to be settled in the courts, though.
From local jail to immigrant detention under COVID-19
Agreements between local law enforcement and the federal agency reinforce the state’s jail-to-deportation pipeline, said Arteaga.
When an undocumented immigrant is booked into a jail in North Carolina, their information is typically shared with ICE. In the United States, anyone arrested on suspicion that they have committed a crime is guaranteed an appearance before a judge shortly after they arrive at the jail.
If the accused is released to await trial outside the confinements of jail, officials are supposed to let them go. That also applies if the accused is able to post bail, pay a fine, or is put on probation. However, if ICE has issued a request that the local jail hold the person for immigration reasons, the accused might find themselves incarcerated despite having been released by a judge.
These requests, known as “detainers,” give federal agents an additional 48 hours to arrive beyond the time the accused would have been released, should they decide they want to take the person into immigration detention.
When a person held by a jail under the fledgling WSO program is picked up by ICE, they’re transported, sometimes first to the Alamance County Detention Center, the only jail in North Carolina that can detain immigrants on behalf of ICE for more than 72 hours. Eventually, they’re taken to Stewart Detention Center in Lumpkin, Georgia, a private detention facility where almost all undocumented immigrants arrested in North Carolina are held while they await deportation proceedings.
Stewart has had a COVID-19 outbreak since March, with 127 confirmed cases and 66 people currently infected. One immigrant held there has died. The facility is the subject of ongoing lawsuits seeking the release of people with preexisting conditions. Migrants inside have waged multiple hunger strikes over conditions during the pandemic and delays in medical attention for people who believed they’d contracted the virus. They’ve alleged that the facility places infected people in solitary confinement as a means of quarantine. Specialized correctional guards responded to detainee strikes by firing pepper spray and pepper ball projectiles.
The outbreak has recently been traced to spread in the larger community. This is why immigrant advocates are worried about this new pipeline to federal detention, where it can be difficult to escape COVID-19, whether or not the accused were rightfully detained at the beginning of their journey.
Though some jails in North Carolina already honored detainers, WSO programs formalize the relationship — eight of the nine participating jails had no previous agreement with the federal immigration agency.
Kate Evans, a professor of law and director of the Immigrant Rights Clinic at Duke University, said the legality of detainers has long been questioned on claims that the practice incarcerates people in violation of state and federal law.
The warrant program could provide legal cover for counties even amid these perceived weaknesses, Evans said, providing a “shield of legitimacy” in the form of a formal agreement.
“The warrant service officer program sort of promises, or tries to promise, to local officials that they’ll be protected from any liability, and therefore can go ahead and attach this immigration custody [agreement],” she said.
Another one of the counties that adopted the WSO program during the pandemic, Alamance County Sheriff’s Office, previously lost their 287(g) program in 2012 after a U.S. Department of Justice racial profiling investigation found the office engaged in “discriminatory policing against Latinos.”
The sheriffs’ offices from Caldwell, Duplin, Lincoln, and Randolph counties, as well as the Albemarle District Jail, have also adopted WSOs since March 19 or later.
Three additional counties, Rockingham, Nash, and Cleveland, already had the program, having adopted it several months earlier.
Transfers amid the pandemic
Detainee transfers by ICE have continued during the pandemic, much to the dismay of health experts, who argue the practice has spread the virus across the country and, even, around the world. Many outbreaks have been directly traced to transfers of immigrants from one facility to another.
Unlike the state prison system, which is required to provide transfer numbers as part of an ongoing lawsuit, there’s little way to know exactly how many ICE transfers have taken place in North Carolina, or where detainees have been moved to and from within the state. Jails refer questions to ICE, and the federal agency said it does not release data on detainee moves below the regional level.
ICE has not yet responded to a public records request filed for these numbers, after several weeks of back and forth emails asking for the information, in July.
Byron Tucker, public information officer at Alamance County Sheriff’s Office, said they haven’t received as many immigrant detainees during the pandemic as they normally would. Nonetheless, he said he was unable to provide specific immigrant detainee numbers without the federal agency’s consent.
“If ICE needs to bring people in, they will,” said Tucker. “And sometimes it can be as little as 12 hours, it could be 24 or 48 hours, but they churn. They’re not long-term folks here with us.”
Notably, the facility may also receive immigrants back from Stewart Detention Center, despite its current outbreak.
“Yes, we have inmates that come through here from various locations, and that is one of them,” said Cliff Parker, chief deputy of detention at Alamance County Sheriff’s Office, who said those decisions get made at the federal level. “Our folks don’t make decisions on who comes through and who doesn’t.”
ICE declined to comment if they’re specifically transferring people back from Stewart during this time.
Spreading the virus?
Lauren Brinkley-Rubinstein, a public health researcher at the University of North Carolina School of Medicine, said WSO agreements could further complicate the risk of spreading COVID-19.
“The best way to prevent COVID-19 is to engage in decarceration – having less people be in detention facilities and prisons – because those environments are amplifiers of disease,” she said. “If you have a situation in which people are being held in jails longer, you’re increasing their risk of exposure because they’re in that environment for longer.”
But Brinkley-Rubinstein, who also founded the COVID Prison Project, added that there’s a larger community health risk due to transfers.
“If you’re going to engage in transfers, one way to possibly make it safer would be to give someone a test right before they’re transferred,” she said. ”Then give them another test the minute they get to the new facility.
“We know jails aren’t doing a lot of testing in this state.”
As of May 28, participating jails like those in Lincoln, Caldwell and Randolph counties had not tested any of their inmates, according to a public records request filed by Felicia Arriaga, professor of sociology at Appalachian State University. Alamance and Rockingham County Sheriff’s Offices and the Albemarle District Jail have not responded to NC Health News’ requests for their testing numbers.
“If you have jails where there’s very limited testing, but are environments in which COVID transmission and risk is heightened, then it’s very risky to transfer those people to other facilities,” said Brinkley-Rubinstein. “You don’t actually know what the incidence of COVID-19 is in the facility they’re coming from.”
Mired in secrecy
It’s not clear how WSOs are being enforced during the pandemic, or if the new programs have started in these jails.
Neither ICE nor most of the jails who recently adopted the program have responded to repeated requests for comment . Two sheriffs’ offices, in Lincoln and Alamance counties, said they have not begun their WSO programs because they’re waiting to receive training.
Reports like the one Comunidad Colectiva received like the caller in May sow doubt, and create fear among immigrant communities that some WSO actions are nevertheless being implemented.
Advocates expect an uptick in immigration arrests in North Carolina as more businesses and activities re-open, even as the pandemic rages on.
“Fortunately, because of coronavirus, we’ve kind of had a break,” said Jose Espinosa of Comunidad Colectiva. “We do anticipate though that in the following weeks, there will be some more activity starting up, especially as things open up more.
“We can only prepare for ICE starting to get back to their regular routine sometime soon.”
The concerns come as reports of ICE arrests in other parts of the country circulated anew last week.
Choosing to enforce
If the WSO programs have started, Evans said jails have some leeway – officers can determine if they want to honor detainers during the pandemic.
“Those detainer requests are requests,” she said. “And I think that’s just the fundamental piece to understand there. There’s a choice about continuing detention, about increasing risks, about separating families, about all of the harms that flow from that detention, particularly in this moment in time.
“It’s a custody decision that doesn’t have to be made — it’s harmful at all times, and is especially harmful now.”
ICE declined to comment on their use of WSOs or what steps are taken to ensure transfers are being conducted in a way to not transfer the virus as well, but Parker of Alamance County Sheriff’s Office spoke in their defense.
“Anybody that comes into the detention center, regardless of what their issues are, is given the best treatment we can give them,” said Parker. “And during the pandemic, thank the good Lord, we’ve managed to protect our population. You never know when this ‘violent enemy,’ as it’s been called, is gonna pop up, but we try all we can to protect all of our community that we’re engaged with, and the federal government does the same.”