Should a South Carolina jail keep sending federal immigration notices and housing invoices when DHS refused to reimburse it?

Plain-English summary

Beaufort County’s detention director asked whether to stop notifying the Department of Homeland Security and invoicing it for housing expenses after an agent said the federal government would not pay. The South Carolina Attorney General said the jail should continue complying with the state statute’s notification and invoicing requirements. Under the quoted S.C. Code Ann. §23-3-1100, the jailer was to notify DHS after federal verification of a prisoner’s unlawful presence and then account for daily housing expenses and forward an invoice.

The office did not decide whether federal law required reimbursement. It suggested contacting DHS about the refusal to pay and said federal policy was for that agency to explain. The opinion addressed the jail’s state-law duties despite nonpayment, not the outcome of a federal reimbursement claim.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did DHS’s refusal to pay end the jail’s invoicing duty? A: The Attorney General said no. The state statute still required the jail to forward an invoice after the specified federal status determination and notification.

Q: Could the jail stop notifying federal immigration authorities? A: The opinion said the jail should continue complying with the state law’s notification requirement.

Q: Did the AG rule that DHS had to reimburse Beaufort County? A: No. The office did not interpret federal reimbursement law or decide whether DHS’s refusal was lawful; it suggested contacting DHS for its reasons.

Q: What triggered the invoice provision described in the letter? A: The quoted statute required an invoice after DHS was notified that a prisoner had been determined to be unlawfully present, with daily expenses for housing, maintenance, and care accounted for.

Background and statutory framework

The director said he had sent three invoices under S.C. Code Ann. §23-3-1100 and was told by an immigration agent that they would not be paid. He asked whether the detention center should continue invoicing and whether it should discontinue immigration notifications. The opinion reproduced the statute, including its requirements for federal status verification, notification, expense accounting, and invoicing.

The Attorney General noted that regulations contemplated by the statute apparently had not been promulgated. It therefore relied on the statute’s own text, which still required notification and invoicing. It left DHS’s reimbursement policy and the application of federal law to the federal agency.

Citations and references

Statute discussed: S.C. Code Ann. §23-3-1100, quoted in the letter for federal verification, notification, jail expense accounting, and invoicing duties.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-25-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/foot-p-a-os-8837-8-25-09-homeland-security-reimbursement-for-housing-illegal-aliens.pdf

Original opinion text

H ENRY MCMASTCR
ATTORNEY GENERAL

August 25, 2009

Philip A. Foot, Director
Detention Center, Beaufort County
P. 0. Drawer 1228
Beaufort, South Carolina 29901-1228
Dear Mr. Foot:
In a letter to this office youreferenced the provisions ofS.C. Code Ann. §23-3-1100 which state as follows: (A) If a person is charged with a criminal offense and is confined for any period in a jail of the State, county, or municipality, or a jail operated by a regional jail authority, a reasonable effort shall be made to determine whether the confined person is an alien unlawfully present in the United States. (B) If the prisoner is an alien, the keeper of the jail or other officer must make a reasonable effort to verify whether the prisoner has been lawfully admitted to the United States or if the prisoner is unlawfully present in the United States. Verification must be made within seventy-two hours through a query to the Law Enforcement Support Center (LESC) of the United States Department ofHomeland Security or other office or agency designated for that purpose by the United States Department of Homeland Security. If the prisoner is determined to be an alien unlawfully present in the United States, the keeper of the jail or other officer shall notify the United States Department of Homeland Security. (C) Upon notification to the United States Department of Homeland Security pursuant to subsection (B), the keeper of the jail must account for daily expenses incurred for the housing, maintenance, and care of the prisoner who is an alien unlawfully present in the United States and must forward an invoice to the Department of Homeland Security for these expenses.

R EMBERT

c. D ENNIS B UILDING • PoS'r O FFICE Box 11549 • COLUMBIA, SC 292 11-1549 • Ta.EPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Foot
Page2
August 25, 2009

(D) Nothing in this section shall be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release. However, pursuant to the provisions of Section 17-15-30, a court setting bond shall consider whether the person charged is an alien unlawfully present in the United States. (E) The State Law Enforcement Division shall promulgate regulations to comply with the provisions of this section in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws. (F) In enforcing the terms of this section, no state officer shall attempt to make an independent judgment of an alien's immigration status. State officials must verify an alien's status with the federal government in accordance with 8 USC Section 13 73( c). You indicated that pursuant to such provision, you have sent three invoices for reimbursement for housing illegal aliens to the Department of Homeland Security. You state that you received a telephone call from an immigration agent after your third invoice which indicated that the federal government would not pay these invoices. As a result of such, you have questioned whether you should continue to invoice the Department of Homeland Security as the referenced statute provides or discontinue such practice. You stated that state law instructs your department to notify Immigration upon "booking" a suspected illegal inmate and it has been your practice to comply. You have questioned whether you should discontinue to notify Immigration since the federal government refuses to provide reimbursement for housing illegal aliens as required by the above provision. While subsection (E) of such provision states that SLED " ... shall promulgate regulations to comply with the provisions of this section.... ", apparently there have been no regulations promulgated. As a result, we are limited by the provisions of the statute itself as to its mandate. Again, subsection (B) requires a jailer to notify the federal Department of Homeland Security ifthe prisoner is an alien unlawfully in this country and subsection (C) requires the jailer to invoice the Department for expenses incurred in housing and maintaining the prisoner. Inasmuch as state law requires such, I can only conclude that you should continue to comply with such provisions. As to the failure of the federal government to reimburse your agency for the expenses incurred, I would suggest that you contact the Department of Homeland Security itself as to the reasons for their refusal to reimburse. As we stated in a prior opinion, "the question of the applicability offederal law to a particular situation is a factual matter which is beyond the scope of an opinion of this Office." Op. S.C. Atty. Gen., May 8, 1989. See also, Op. S.C. Atty. Gen., March 6, 2008.

Mr. Foot
Page3
August 25, 2009

Inasmuch as this office does not interpret federal law, it would be a matter for that agency to advise you as to its policies. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

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By:

REVIEWED AND APPROVED BY:

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Rooert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General