Selected Issues for Local Government Attorneys in Virginia Related to Immigration Status

8/14/2019 Selected Issues for Local Government Attorneys in Virginia Related to Immigration Status

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SELECTED LEGAL ISSUES FOR LOCAL GOVERNMENT ATTORNEYSRELATED TO IMMIGRATION STATUS

1. Provision of Services o r Benefits

a.Public Schools. The public schools in each school division shall be free toeach school age child who resides within that school division. Va. Code 22.1-3. The Attorney General of Virginia has issued an official opinionthat a local school board may not require documentation to verify astudent's citizenship for purpose of determining whether he is a bona fideresident qualified to attend free public school in the district. 1999Op.Atty. Gen. Va. 105. This is consistent with a 1979 Attorney Generalopinion that the citizen or visa status of an alien student does not affect hiseligib ility for tuition- free education. 1979 Op. Atty. Gen. Va. 292.

A 1982 U.S. Supreme Court decision established that children who are

illegal aliens may not be presumptively excluded from the free publicschools, under the equal protection clause of the Fourteenth Amendmentof the federal constitution. Plyler v. Doe, 457 U.S. 202 (1982).

b. Other Services. Some local services are under the control and direction ofstate agencies (e.g., Health Department, Extension, Juvenile CourtServices Unit). Libraries receiving state aid must be made available to allpersons living in the county. Va. Code 42.1-55. There are programsadministered locally under regulations promulgated by the state or federalgovernment (e.g., certain housing programs). Some services are providedunder the terms or direction of a cour t order.

c. Equal Protection. Plyler states that the equal protection clause applies toall within the boundaries of the state, including aliens unlawfully present.In that particular case, the state law violated the equal protection clause bydenying benefits to certain persons without a showing that it advanced asubstantial state interest. The Court appeared to emphasize tw o factors inits decision. First, the children of illegal aliens were not in the country asa result of their own conduct, but due to the conduct of their parents.Second, a public education was not viewed as merely some governmentalbenefit, but a matter of basic importance.

c. Federal Requirements to Verify Status. The Personal Responsibility andWork Opportunity Act of 1996 provides that an alien who is not a"qualified alien" is ineligible for certain federal, state and local "publicbenefits." Local government agencies, such as the social servicesdepartment, check the status of recipients of many types of benefits, asrequired by this federal law.


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2. Regulation and Taxation of Businesses

a. Federal Preemption. In a non-binding letter, the At torney General'soffice has provided an analysis of the federal preemption doctrine as itrelates to local regulation of businesses with respect to employment of

illegal aliens. The federal government has created a comprehensivescheme to prohibit the employment of illegal aliens, under the federalImmigration Reform and Control Act of 1986. Localities are limited inadopting local ordinances attempting to enforce federal immigrationpolicy related to the hiring of illegal aliens with respect to localbusinesses.

b. BPOL Tax. In a 2006 official opinion, the Attorney General concludedthat the local commissioner of revenue is not required to issue businesslicenses to illegal aliens and should verify the status of the applicant.Legislation to this effect did no t pass in the last session of the General

Assembly.

3 General La w Enforcement Authority and Issues - Outside of a 287(G)Agreement.

a. Specific authority to arrest certain illegal immigrants: 19.2-81.6, VACode Ann.

If a person is

Suspected of committing a crime

And officer gets confirmation from ICE that person

Is a previously deported felon

And person is now present in U. S.

b. General authority to arrest on a warrant or "want" for a criminalimmigration violation: 19.2-81, VA Code Ann.

Describes powers of arrest of, among others, County police (19.2-81(3)includes them in the list)

Officer can arrest, without a warrant or capias, persons duly charged withcrime in another jurisdiction, upon receipt of a photocopy of a warrant or acapias, telegram, computer printout, fax, radio, telephone or teletype solong as it has a name or a reasonably accurate description of the personwanted

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In our view an outstanding criminal warrant for a federal immigrationviolation or an ICE hit for "previously deported felon" fit within thiscategory of charge. On the other hand, an NCIC hit that reveals"administrative warrant of removal," indicates that the federal governmentis engaged in a civil process with the person which is insufficient, in our

opinion, to authorize an arrest solely on that ground.

c. Determination whether to put someone under arrest where a summons isotherwise required or authorized -- 19.2-74(A), VA Code Ann.

This says the officer must issue a summons to someone who commits alocal ordinance violation or a Class I or 2 misdemeanor which can resultin a jail term, unless the "person is reasonably believed by the arrestingofficer to be likely to disregard a summons issued under the provisions ofthis subsection, or i f any person is reasonably believed by the arrestingofficer to be likely to cause harm to himself or any other person" then the

officer can arrest and take the person to a magistrate.

In our view, the existence of an ICE entry in NCIS "administrativewarrant of removal," indicates that the person has failed to appear for adeportation hearing, or has failed to leave the country after being orderedto do so. This situation can be considered by an officer in decidingwhether a person would be likely to disregard a summons or break awritten promise to appear in court.

d. Draft Prince William County General Orders 45.01 AND 45.02

These are attached. We believe these are within our Police Department 'slegal authority as a law enforcement agency in Virginia to enact. Allofficers will be trained on these new General Orders starting next week.Once the training is complete, the General Orders will go into effect -probably in March, 2008.

e. ICE agreements with local law enforcement agencies pursuant to 8 U.S.C. 1357(g) a.k.a. 287(g).

Local governments have the authority under 15.2-1726, Virginia CodeAnn., to enter into agreements with the federal government pursuant toSection 287(g) under which certain local law enforcement officers or jailpersonnel will receive extensive training form the Department ofHomeland Security Bureau ofImmigration and Customs Enforcement(ICE). Once trained, the individual officers will have the authority toenforce federal immigration law under the direct supervision of ICE.

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f Issues confronting local law enforcement

Need to maintain trust in all communities residing in Prince William,including minority and immigrant communities, in order to continueeffective po !icing efforts.

Need to avoid perception that officers are acting unconstitutionally - thatthey are engaging in racial profiling or other illegal discrimination.

Need to protect victims and witnesses who may themselves be illegalimmigrants, and encourage them to cooperate with the police in that effort.

Need to avoid dangerously overcrowding the local jail.

Need to manage citizen expectations. We are striving to implement a fair,reasonable and legal local law enforcement response to the problem o f

illegal immigration, but that alone will not solveth e

problemo f

illegalimmigration, and this must be constantly reiterated with the citizens.

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L

PRINCE \Y[LLlA:H COt'::-JTYPOLICE OEPARTMEJ..;T~ 1 A ~ t j A LOF GF.;\ERAL ORDERS (PROPQSED)

Xl.lmber 4

LOCAL E ~ F O R C E ) 1 E N TRESPONSE TO ILLEGAL I : \ 1 M I G R A T I O ~:GENERAL GLIDELINES

A The purpose of tbis General Ordcr is m eShlblish a polky ft'1, the IDG..I Fartl.cipatior of theenforcem::m of : m m j ~ j o n1'?:.: of additional f a ~ , sthf>lwould lawfuUy support anextensiou of me initial OeUliOr. f()r funher i-lvesligalion into immigrmi0!l manel'S. Aspreviously stated, thls Gencra! Order is not inten


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3" Criminal Alien .. A ~ i e n s\\ho [uye tOlnlUit ted cri-:nes (rlat [miKe th.:m ehg:ble tobe tenisporL it nlso czn be provcd using avariety of


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pro:,able cause exim. courts will f::xus upon "whm !h'" wtality cf thed!cmmfllXK';s meant tv po!i.;:" olDCyteE Of by tonL!cting the ICE La\\ EnfC:l'CemClll Surrart CeUlcr (LESCj.

11. ugal A u ~ h v r i t )fv r EnfcHTmrnt vflmmigrxtion Laws (see Gelleml Orcier 45 02).

WarrFh'lts a.'1d dctairters isOUM by le E may be criminal or civil. Wbct.'1u tCE G pr(lcccciillgcriminally (IT civilly "gailm the suhjeci contw!s Ihc response ofioca! ial).." n f 0 n : ; e m ~ n L

POUCE MAY ARREST llilder a,"ly of ilw following wllcltions:j ) The ~ q u i r e m 0 n Hof ~ 1 9 . 2 " &1.&Code of Vlrp;inware flltisfi&L

*19.281.6 C"d;J a/Virginia - AI! / {lod depofted (II" left {Iw [!ni t i 'd SfalfY afier SUfhrom1e1ioJ[. Upon fe('tlving S1


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}f:m!IV.irh be/brl' II magistralt or or!;!!f !Hui'tg aUlhoriry ;.md proceed pursuant /( I Hl-B2,

2) An N o e irumigrnJiou Vio]atln: File (iVF') hi. r"ads "PREVJOLSLY

DEPORTED FELOX,- a hit confim;ation is rl'(",,-,ivc,LAND;i CriminalfmmignltiO!lDttainet from rCE is received amhir iss:.le,l

J) An l\ClC JVF hil ::

L S"kb bec


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PRISCE W I L L l A ~COt'NTY POLICE DFPARTMENTMANliAL OF GE;:>;ERA.LORDERS (PROPOSED)

(;cncra! Order: 45.112 Effective: N'tllnbcr of Pages: 4

LOCAL ENFORCEMENT RESPONSE TO ILLEGAL IMMIGRATION,MEMBER RESPONSiBlIJTlES

A. Officer Respolbe:

) _ Of[l.::ersr /wll ipW$t1gnlethe citizenship or :'mmigmunn $ln,:!$ of ~ 1 1 :peroNl who ts !nwEdl}detainee for n yiolatj{ln of a state law Of county DrdJnar.ce, if (1) probable eause exis:s wbdievd such perSon E in vi"la!lDll of [",dernl ifllmigra.ticll laws: (2) the inqwry h a ~notalready Dccurred il l the encounteL and 0 ) the inquiry will nOlunlawfllHyXrAmd the dural:wllof the detention. There may be (:lfCumstanceJu J F l ~ rw!u;;;h the FctJrth Amcmlmcnt a u \ h o r i z e ~an eariic: :nqulTY and oJfk:ers may use their dsc:ctJDn in accordance with :rni:!ing toinvestip;'le m;migration stalus 111an ear,ier s:age.

Oi5cers nwst re::TlJln tng,',il.J!1tII! a lawenforcemelll of ficer is II v \ , j l ~ t ; o nof State law nnder J .I.2.&:?,j Cod" o f Virginia.

2. If d:e OfC;;"f has pwbable caus.: to iwEcse lhe dttuined person is ill ':iolution of f\.':dC::llilmm!gr4tiOIl law an d the person doe> not produce any of the document$ oJtlineti bdow topw",: ;egal presrnoe, the ollicQ: shall i n q 4 i r ~aJ ttl 41


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.t \ V h n e \ ' ~ ' Tan otlicer [;Jns a \\1!rltcJc:heck o r ~ . ninri;\ iciU(l:thrOl1gr.Nne. th," lV F database ISau,:omaticaHy c h e ~ k e dhllU a "nit" may r,crec eivul It has ;r:ng heen tr.t policy of theDepartment to serve Gtmiml warrants or!gmattll/, fwm ;


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Selected Issues for Local Government Attorneys in Virginia Related to Immigration Status

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