Yesterday, I had the unique opportunity to testify in public comment on a proposed bill before the North Carolina Legislature. House Bill 63 remains in committee at this time, meaning that it is not yet ready for a vote and now is the ideal opportunity to alert lawmakers as to the legal and constitutional problems with the bill. This bill, if passed, will directly affect our clients and our community.
There are a few different parts to the bill, which is otherwise known as the Citizens Protection Act of 2017. There are increased penalties for manufacture or sale of a fraudulent identity document and an elimination of state funding for cities, towns, and counties who do not comply with ICE detainers. An ICE detainer is a document provided to a state agency who is holding an individual for pending criminal charges asking the agency to hold onto the individual for an additional 48 hours after he has posted bond or resolved his criminal matter to allow ICE to take custody. There have been many successful legal challenges to this practice, including a recent decision from a Florida court.
The part of the proposed bill that I was able to discuss yesterday involves limitations on pretrial release for a defendant who is charged with a crime, who also has an ICE detainer. The proposed bill creates a “rebuttable presumption” that no condition of release is reasonable in the case of a person who is charged with a sex offense, a violent felony, certain driving offenses where the punishment mandates a revocation of the driver’s license, a drug offense, or a gang offense. Additionally, this “rebuttable presumption” will apply if someone is charged with any offense and ICE has lodged a detainer on that person.
Finally, even without an ICE detainer having been lodged, there is a proposal in the bill that any person who “is not lawfully present in the United States” and is charged with a felony of Class A1 misdemeanor must pay a secured bond.
As was pointed out to the committee yesterday, there are serious problems with the creation of this rebuttable presumption, including violation of the Eight Amendment which gives defendants the right to a reasonable bond. Additionally, there are concerns about having a locality rely on an ICE detainer to refuse to issue any bond, as someone’s immigration status is not always clear, particularly in issues of derived or acquired citizenship. This potentially opens up localities to litigation for unlawful detention. Finally, there are concerns about denying bond or requiring a secured bond solely on the basis of someone’s immigration status, including violation of the Equal Protection Clause of the Constitution.
After appearing before the committee yesterday and listening to the questions presented by the committee members to the bill sponsors, it is evident that some of the legislators have concerns with the bill. I was appreciative for the opportunity to contribute to the conversation and help educate the committee members on some of the finer points of immigration law, including how the passing of a law like this may go too far in entangling local law enforcement with immigration issues.Read More