The Trump administration has launched an investigation into the Fairfax County Commonwealth’s Attorney’s Office over its handling of cases involving undocumented immigrants as defendants.
The Justice Department notified Commonwealth’s Attorney Steve Descano today (Wednesday) that it has opened an investigation into his office’s policy advising prosecutors to consider defendants’ immigration status when making decisions about plea agreements, charges and sentencing.
Federal officials allege that the policy may constitute discrimination against U.S. citizens “by offering preferential treatment only to illegal alien criminal defendants.”
“Under my leadership, the Civil Rights Division will not allow local prosecutors to pick and choose winners based on their immigration status,” Harmeet K. Dhillon, the assistant attorney general for the DOJ’s Civil Rights Division, said in a press release. “This investigation will uncover whether this prosecutor is putting the community at risk in offering sweetheart deals to illegal immigrants charged with serious crimes.”
A spokesperson for Descano’s office confirmed that they received the notice but won’t comment publicly on the investigation at this time.
In place since December 2020, Descano’s first year in office, the guidelines for plea bargaining, charging decisions and sentencing instruct assistant commonwealth’s attorneys to “consider immigration consequences where possible and where doing so accords with justice.”
Although not outcome determinative, prosecutors shall consider: (i) the collateral immigration consequences of the specific crime(s) the defendant is charged with, and (ii) the detrimental impact that deportation/removal has on the families and communities those removed or deported leave behind. However, in some case, there will be significant limits as to what an ACA can do to avoid collateral immigration consequences.
The policy also notes that “the community’s public safety interest in mitigating any future harm will likely outweigh other factors” in cases involving an act of violence or other “great harm done to a victim.”
In cases involving “lesser” offenses and no identifiable victim, the policy suggests prosecutors would have more leeway to negotiate a resolution that could avoid or limit immigration-related consequences, but it “will not be better” than a plea agreement or sentencing that would be offered to a defendant not facing those consequences.
The guidelines also prohibit prosecutors from seeking the death penalty, automatically transferring juveniles to the circuit court to be tried as adults unless required by state law, and deferring to the court’s judgment on a particular case, among other scenarios.
The Trump administration has repeatedly criticized Fairfax County leaders for their immigration policies, often accusing Descano and Sheriff Stacey Kincaid of releasing individuals sought by U.S. Immigrations and Customs Enforcement without notification.
In keeping with Fairfax County’s Trust Policy, the sheriff and commonwealth’s attorney both limit cooperation with ICE unless required by law or a court order. According to Kincaid’s office, ICE is notified every time an undocumented person is taken into custody, but federal officials generally fail to show up for their release date or to obtain a judicial warrant that would authorize the jail to hold them and transfer custody.
Cases highlighted by DHS have included the arrest of Abdul Jalloh, reportedly a Sierra Leone national who faced numerous charges — most of them dropped — before he was accused of fatally stabbing Fredericksburg resident Stephanie Minter at a Hybla Valley bus stop on Feb. 23. The federal agency also warned Fairfax County officials not to release an 18-year-old Fairfax High School student who was sentenced to four months in jail in April for groping multiple other students.
The DOJ’s investigation announcement comes just over a week before Descano and Kincaid are slated to testify before a House Judiciary subcommittee on their offices’ policies regarding interactions with ICE.
According to his office, Descano is still planning to participate in the hearing, which is scheduled for 10 a.m. on May 14.
For his part, Descano has criticized the current Trump administration of creating a “culture of fear” with hardline immigration policies that makes it harder for prosecutors and other local and state public safety officials to do their jobs. Earlier this year, he partnered with other Democratic prosecutors to launch a task force aimed at holding federal immigration officials accountable if their conduct violates the law.
Also on that task force is Arlington Commonwealth’s Attorney Parisa Dehghani-Tafti, who was subpoenaed by the House Judiciary Committee last week for a case involving a retired academic who allegedly confronted Katie Miller, wife of top Trump advisor Stephen Miller, and distributed pamphlets with their home address.
Dehghani-Tafti declined to press charges against the academic, citing “insufficient evidence” that she intended to encourage harassment of the Millers and finding that her activities were constitutionally protected as free speech.
The General Assembly passed several bills this spring intended to restrict ICE activities, including prohibitions on masks, cooperative agreements between federal immigration officials and local and state law enforcement, and civil arrests in courthouses, schools and health care facilities.
Virginia Gov. Abigail Spanberger signed the bills barring agreements between ICE and law enforcement agencies into law, while the bills on masks and civil arrests remain in limbo after state legislators declined to accept amendments that state Sen. Saddam Salim, who sponsored the legislation, decried as “toothless.”
