Virginia Attorney General Jason Miyares issued an apparent challenge last week to Fairfax County and other localities over their policies on cooperating with federal immigration authorities.
In a response to an inquiry from Bedford County Sheriff Michael Miller, Miyares released an opinion last Thursday (Sept. 5) confirming that local sheriffs have the authority to notify Immigration and Customs Enforcement (ICE) when someone wanted for deportation proceedings is scheduled to be released.
Calling cooperation on all immigration orders a “moral duty,” Miyares argues that only the sheriff can decide whether to alert ICE to an undocumented immigrant’s release from custody and “local governing bodies are not authorized to restrict that discretion.”
“Should an illegal immigrant be detained in a Virginia jail, there is nothing in law preventing our local and state law enforcement from cooperating with federal agencies,” Miyares said in a statement. “To our sheriffs who already cooperate with ICE on immigration matters: Thank you. To those who refuse to cooperate with ICE: Shame on you.”
Miyares’s argument that ICE detainers “should be honored” by local and state law enforcement agencies appears to reverse the stance of his Democratic predecessor, Mark Herring, who issued an opinion in 2015 characterizing them as requests for an individual to be detained, distinct from judicial warrants signed by a judge.
After terminating an agreement with ICE in 2018, the Fairfax County Sheriff’s Office (FCSO) says its policy is to detain individuals whose arrest was authorized by a judicial warrant, but it won’t hold someone in custody past their court-ordered release date solely based on an immigration detainer.
Though sheriffs in other jurisdictions like Arlington and Alexandria follow similar policies, ICE has publicly accused the FCSO multiple times over the past year of ignoring detainers and releasing individuals who were subsequently arrested on serious charges, including sexual assault and murder.
In one case involving a man later sentenced to prison for child pornography and assaulting an ICE agent, the sheriff’s office denied getting a detainer from ICE in the three hours when the man was in custody before paying his bail, calling the federal agency’s account “blatantly false.”
In response to “recent media inquiries” blaming it for releasing undocumented immigrants, the FCSO defended its policy in a July 25 statement as consistent with state and federal laws, as interpreted by Herring’s opinion, and the Constitution, which guarantees due process and freedom from “unreasonable seizure.”
“ICE knows that should they wish to take one of these offenders into custody, all that is required on their part is a judicial warrant authorizing arrest,” the sheriff’s office said. “ICE is notified every time an undocumented immigrant is taken into our custody. Yet, time and again, they make no effort to secure a warrant that would give judicial authority to detain. This inaction is a failure of Immigration and Customs Enforcement, not of the Sheriff’s Office.”
Kathryn Ann Duffy Pavluchuk, general counsel for the FCSO, told FFXnow on Friday that the office “is in the process of reviewing” Miyares’s opinion and has “no further comment.”
The Fairfax branch of ACLU People Power, a grassroots civil rights group that helps the ACLU mobilize volunteers, suggests no changes should be needed. Despite the “anti-immigrant rhetoric” in Miyares’s press release, his actual opinion largely reiterates established Virginia law, ACLU People Power Fairfax lead advocate Diane Burkley Alejandro told FFXnow.
“The opinion concedes that sheriffs have the discretion — not the legal obligation — to provide prerelease notification to ICE,” she said in a statement. “We applaud those jurisdictions that cooperate only when required through a judicial warrant. The overwhelming majority of inmates released from the jail have not been found guilty of any crime and all are entitled to due process.”
However, shortly after Miyares issued his opinion, Fairfax County’s only Republican supervisor, Springfield District representative Pat Herrity, suggested the county take another look at its “Trust Policy.”
Adopted by the Board of Supervisors in January 2021, the policy prohibits county employees from sharing information about a person’s immigration or citizenship status with ICE unless required by law or a court order.
“Thank you to Attorney General Jason Miyares for clarifying that we can legally work with federal agencies to keep violent, dangerous criminals from preying on our communities, regardless of immigration status,” Herrity said in a statement. “It is past time for the Board to revisit the Trust Policy and its impact on the safety of all of our residents.”
Board of Supervisors Chairman Jeff McKay’s office said on Friday that he had no immediate comment on Miyares’s opinion, as they “just received it and will be reviewing any potential impact.”
Burkley Alejandro, whose organization was among the advocacy groups that pushed for the Trust Policy, notes that it only applies to general county employees, not the sheriff’s office, though it was adapted by Fairfax County Public Schools and the Commonwealth’s Attorney’s Office.
“We have full confidence that the Fairfax Board of Supervisors, which voted 9-1 to adopt the Trust Policy, will continue its steadfast support of this critical protection against voluntary cooperation with ICE,” Burkley Alejandro said. “Fairfax immigrant families should not be afraid to access county benefits. They should not live in fear that police officers are acting as agents for ICE.”
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