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Virginia legal opinion supports checks of immigration status

By Anita Kumar and Rosalind S. Helderman
Washington Post Staff Writer
Tuesday, August 3, 2010; A01

RICHMOND -- Virginia joined the national debate over immigration Monday when Attorney General Ken Cuccinelli II issued a legal opinion that authorizes law enforcement to check the immigration status of anyone stopped by police officers for any reason.

Previously, law enforcement officers in Virginia were required to investigate the legal status only of those who were arrested and jailed.

Cuccinelli's opinion is less stringent than the portion of an Arizona law that was stopped by a federal court last week. Under that law, Arizona authorities were required to question people who they have a "reasonable suspicion" are illegal immigrants.

"Our opinion basically said that Virginia law enforcement has the authority to make such inquiries so long as they don't extend the duration of a stop by any significant degree,'' Cuccinelli (R) said at a news conference Monday. "That's consistent with Supreme Court authority."

The attorney general issued the opinion in response to a request from Del. Robert G. Marshall (R-Prince William), who sought clarification on whether local police, conservation officers and zoning officials could inquire about legal status.

Marshall said he chose to seek the legal opinion because he feared that the Senate, under Democratic control, would not approve legislation permitting law enforcement officers to inquire about legal status during routine stops. Bills seeking similar powers were killed in the Senate in recent years.

Marshall wrote to Gov. Robert F. McDonnell (R) on Monday asking him to codify Cuccinelli's opinion through executive order. He said he thinks that Virginia can avoid legal trouble by allowing but not mandating the checks by police.

McDonnell spokesman Tucker Martin said the governor will review the opinion, saying it built upon an opinion he issued as attorney general in 2007. "That opinion detailed how local and state law enforcement officials can work in cooperation with federal authorities to ensure the criminal immigration laws of this nation are upheld and enforced," Martin said in a statement.

'The same inquiries'

In his opinion, Cuccinelli also wrote that local law enforcement officers can arrest those they suspect of committing criminal violations of immigration laws -- crossing the border -- but not those they think have violated civil immigration statutes -- overstaying visas. But he says that checking immigration status is different than arresting for a violation, and that law enforcement can inquire.

"Virginia law enforcement officers have the authority to make the same inquiries as those contemplated by the new Arizona law. So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime," he writes.

Cuccinelli said, however, that local law enforcement can arrest those suspected of violating criminal laws, but that it is generally "inadvisable" to arrest those suspected of committing civil violations. "The ability to arrest lies clearly when there is a criminal offense and it is decidedly unclear where there is a civil offense," he said.

The attorney general's legal opinion was issued amid a growing national debate about immigration. A U.S. district judge temporarily blocked the most controversial sections of Arizona's law, which took effect last week. Nearly 20 states have introduced bills similar to the Arizona law, and nine states, including Virginia, are filing appellate briefs supporting Arizona.

In Virginia, Corey A. Stewart (R-At Large), chairman of the Prince William Board of County Supervisors, is pushing state lawmakers to pass legislation that would crack down on illegal immigrants. His proposal includes language that would require police to check the legal status of anyone who is detained if there is "reasonable suspicion" that the person is in the United States illegally.

Stewart said Cuccinelli's opinion is a "positive step" that presses local jurisdictions to act. He said police have been reluctant to check immigration status because of the workload and fears that they would be accused of racial profiling.

Senate Majority Leader Richard L. Saslaw (D-Fairfax) said some localities may adopt ordinances based on Cuccinelli's opinion, but predicted such ordinances would be challenged.

"I think they will have a problem in court,'' he said. "They're going to be told to go back to the General Assembly."

Of the estimated 12 million illegal immigrants in the United States, 275,000 to 325,000 live in Virginia, according to the Pew Hispanic Center in Washington. And some regional advocacy groups fear that Cuccinelli's legal opinion gives law enforcement the immediate authority to check immigration status.

"There's a danger that some law enforcement would do this,'' said Claire Guthrie Gastanaga, a former Virginia chief deputy attorney general who lobbies for immigrant organizations. "They may use this as a permission slip."

Caught off guard

Cuccinelli's opinion caught some law enforcement groups in the state off guard, including the Virginia Association of Chiefs of Police.

"We were not consulted, and we always welcome the opportunity to talk with the office of the attorney general. We would have welcomed the opportunity to talk with him before this opinion, but we still welcome it," said Dana G. Schrad, the group's executive director. The association does not have a position on asking about immigration status during stops. "We have a mixed bag of feelings on immigration status matters, so it's more complicated than do we support it or not," she said.

Although procedures vary by department, Schrad said police and sheriffs in the state who inquire about immigration status tend to do so after an arrest, not during routine stops, although departments including Prince William may ask about status during a traffic stop to help determine identity if someone lacks valid identification.

Prince William Chief Charlie Deane has criticized any sweeping questioning, saying it would cost taxpayers by sapping police resources and could lead to allegations of racism while harming community relations. Department spokeswoman Sgt. Kim Chinn said Deane will review Cuccinelli's opinion.

Corinne Geller, a spokeswoman for the Virginia State Police, said Superintendent W. Steven Flaherty is aware of the opinion but does not plan to make procedural changes. She said that troopers are allowed to question the people they stop, but that they do not unless they have a specific reason. For example, she said, if someone's license, registration and insurance do not match.

Officials at the Virginia Association of Counties and at the Virginia Municipal League, which represents cities, towns and some counties in the commonwealth, said it is too soon to say how members will react to the opinion. But the action comes as several local jurisdictions continue to weigh how best to handle the influx of illegal immigrants.

"I think the general sense seems to be that Prince William seems to be the only county interested in enforcing federal law at this point," said James D. Campbell, executive director of the counties association. "There doesn't seem to be a lot of discussion elsewhere in the state."

Mark Flynn, director of legal services at the Municipal League, said the nonpartisan association's board recently asked him, with help from graduate students at George Mason University, to prepare a report on the costs of illegal immigration that are borne by local jurisdictions.

"We found that, yes, it has terrific costs on local government," especially on schools, social services and police, Flynn said. But Flynn said the group discovered that calculating those costs precisely is difficult; the group also recognized that immigrants have brought benefits that are equally challenging to quantify.

In the end, with members' policies ranging from the get-tough action in Prince William to the open door in Arlington County, the league has decided to remain neutral on the approach to illegal immigration.

Staff writers Fredrick Kunkle and Mary Pat Flaherty contributed to this report.

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