Legislature Revisits Law on Immigration Detainers – North Carolina Criminal Law

A couple of months in the past, I blogged in regards to the legislative modifications that took impact final 12 months surrounding the processing of defendants who’re topic to immigration detainers. The North Carolina Normal Meeting revisited the subject this legislative session in S.L. 2025-85 (H 318). Efficient October 1, 2025, the regulation modifies among the provisions enacted by S.L. 2024-55 (H 10) and creates a brand new pretrial launch process that requires judicial officers to find out authorized residency for defendants charged with sure offenses.

Offenses triggering a residency dedication.

Underneath current regulation, the administrator of a detention facility should try to find out if an individual confined inside the facility is a authorized resident of the USA if the particular person is charged with any of the next offenses:

a felony beneath G.S. 90-95 (felonies associated to managed substances)
a felony beneath G.S. Chapter 14 Article 6 (murder offenses), Article 7B (rape and different intercourse offenses), Article 10 (kidnapping and abduction), Article 10A (human trafficking offenses), or Article 13A (gang offenses)
a Class A1 misdemeanor or felony assault
any violation of G.S. 50B-4.1 (violation of a home violence protecting order).

Efficient for any particular person confined in a detention facility on or after October 1, 2025, the next classes of offenses set off the inquiry:

any felony
a Class A1 misdemeanor beneath Article 6A (unborn victims), Article 7B (rape and different intercourse offenses), or Article 8 (assaults) of G.S. Chapter 14
any violation of G.S. 50B-4.1 (violation of a home violence protecting order)
any offense involving impaired driving as outlined in G.S. 20-4.01.

This listing is extra expansive than the earlier listing. All felonies, all impaired driving offenses, and virtually all assaults might be coated beneath the amended regulation.

Issuing the detention order.

If the prisoner’s standing as a authorized resident or citizen of the USA can’t be decided, the administrator or different particular person accountable for the ability should ship a question to ICE. As was enacted final 12 months, if the administrator accountable for a confinement facility receives discover that ICE has issued a detainer and administrative warrant for an individual charged with a prison offense and presently confined in that facility, the administrator is required to take the prisoner earlier than a state judicial official earlier than the prisoner’s launch. The judicial official is supplied with a duplicate of the detainer and administrative warrant. If the particular person showing earlier than the judicial official is set to be the particular person topic to the detainer and administrative warrant, the judicial official is required to challenge an order directing the prisoner be held in custody till the earliest of the next:

the passage of 48 hours from receipt of the ICE detainer and administrative warrant.
ICE takes custody of the prisoner.
ICE rescinds the detainer.

The brand new regulation modifies this provision to require the judicial official’s order to direct not solely that the prisoner to be held in custody but additionally to be transferred to the custody of an ICE officer upon that officer’s look on the facility and request for custody. The regulation additionally amends the 48-hour interval to start on the time the particular person would in any other case be launched (i.e., the particular person satisfies pretrial launch situations), quite than starting from the time of receipt of the detainer and administrative warrant.

Notification to ICE of pending launch.

The act additionally provides a brand new provision, G.S. 162-62(b1)(4), requiring that for any prisoner held pursuant to the detention order (AOC-CR-662), the administrator or different particular person accountable for the ability notify ICE of the date and time that the prisoner might be launched pursuant to the order (i.e., when the 48 hours will expire). The notification have to be made no later than two hours after the time when the prisoner would in any other case be launched from the ability and within the method indicated on the Division of Homeland Safety Immigration Detainer – Discover of Motion kind.

Figuring out pretrial launch situations.

Underneath the prevailing regulation, detention services bear the duty for making queries about an individual’s residency standing, maintaining with issuance of detainers and administrative warrants, and making certain that the 48-hour interval is correctly utilized. This session regulation creates a brand new pretrial launch rule that will distribute a few of that duty to judicial officers. Efficient for individuals showing earlier than a judicial official for a dedication of pretrial launch situations on or after October 1, 2025, new G.S. 15A-534(d4) offers that when figuring out situations of pretrial launch for a defendant charged with sure offenses, the judicial official should try to find out if the defendant is a authorized resident or citizen of the USA. The listing of offenses is identical because the one set forth above:

any felony
a Class A1 misdemeanor beneath Article 6A (unborn victims), Article 7B (rape and different intercourse offenses), or Article 8 (assaults) of G.S. Chapter 14
any violation of G.S. 50B-4.1 (violation of a home violence protecting order)
any offense involving impaired driving as outlined in G.S. 20-4.01.

If the defendant’s standing as a authorized resident or citizen of the USA can’t be decided, the judicial official should (1) set situations of pretrial launch, and (2) commit the defendant to a facility to be fingerprinted and held for a interval of two hours after a question to ICE. If no detainer and administrative warrant are obtained inside that two-hour interval, then the defendant have to be launched upon satisfaction of the situations set forth within the AOC-CR-200 pretrial launch order. If a detainer and administrative warrant are obtained inside that two-hour interval, then the defendant must be once more taken earlier than a judicial official and processed pursuant to the provisions of G.S. 162-62(b1), throughout which period the judicial official will challenge the AOC-CR-662 detention order.

Navigating the time frames.

Although the brand new legal guidelines don’t take impact till October 1, there may be already some query as to what actions could also be taken when, provided that the regulation describes totally different proceedings at two hours and at 48 hours. First, if a judicial official is unable to find out the defendant’s standing as a authorized resident or citizen of the USA, the defendant could be held for as much as two hours whereas the judicial official awaits the outcomes of the ICE question. If no immigration detainer and administrative warrant are issued inside this timeframe, then no additional consideration of different time-sensitive procedures beneath these provisions is critical. If an immigration detainer and administrative warrant are issued inside two hours after the judicial official’s question, then the opposite time-sensitive procedures change into related.

The 48-hour detention applies solely when the defendant is “in any other case eligible for launch” from state custody—in different phrases, it applies when the defendant is ready to fulfill situations of launch as set forth within the AOC-CR-200. For instance, if the judicial official imposes a written promise or unsecured bond, then the 48-hour immigration detention would start instantly. If the defendant is ready to shortly put up a secured bond, then the 48-hour immigration detention begins on the time the bond is accepted by the judicial official. If the defendant shouldn’t be capable of fulfill the situations of launch which might be imposed (i.e., not capable of make bond), then the 48-hour detention doesn’t apply as a result of the defendant shouldn’t be “in any other case eligible for launch.” In these circumstances, there isn’t a fast want for the jail to inform ICE as required beneath new G.S. 162-62(b1)(4), which in flip indicators an absence of urgency for ICE to come back take custody of the defendant.

If, at a later time, the defendant is ready to make bond, then the 48-hour detention interval will start at the moment, having the next sensible results:

Though the bond has been posted, the defendant stays in custody and beneath immigration detention for as much as 48 hours.
The jail administrator or different particular person accountable for the ability has two hours from the time the bond is posted to inform ICE of when the 48 hours is about to run out.
If by the top of the 48-hour interval ICE has didn’t both take custody of the defendant or rescind the detainer, the defendant might be launched pursuant to the situations set forth within the AOC-CR-200.

When you’ve got questions in regards to the modifications enacted by S.L. 2024-55 (H 10) or the pending modifications in S.L. 2025-85 (H 318), please be at liberty to ship me an e mail at bwilliams@sog.unc.edu.