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McDonnell wants troopers deputized to check stopped drivers' immigration status

By Anita Kumar, Carol Morello and Rosalind S. Helderman
Washington Post Staff Writer
Wednesday, August 4, 2010; B01

RICHMOND -- Virginia Gov. Robert F. McDonnell said Tuesday that he has spent months trying to reach an agreement with the federal government to train and deputize state troopers to act as immigration and customs agents to make legal status checks and refer individuals for deportation.

McDonnell (R), a former state attorney general who has helped several localities, including Prince William County, enter into similar agreements, said he expects to make an announcement soon.

"We're working on that," he told reporters at a news conference outside the state Capitol on Tuesday.

McDonnell's comments came a day after Attorney General Ken Cuccinelli II issued an opinion that authorizes police to ask anyone stopped for any reason about his or her immigration status.

The governor said that he agreed with Cuccinelli's opinion, which is similar to an opinion he issued in 2007, but that he lacked the legal authority to force local police to act.

"I think local law enforcement officials have had the authority for a number of years,'' McDonnell told reporters. "We believe our state and local officers have the ability to make those inquiries . . . and turn them over for the appropriate proceedings."

Del. Robert G. Marshall (R-Prince William), who requested Cuccinelli's legal opinion and subsequently wrote to McDonnell to codify the language in the opinion, said he hopes the ruling will give local governments the assurance that they are on "firm constitutional ground" if they choose to request that their law enforcement departments inquire about immigration more frequently.

"They could make this a priority," he said. "This is a determination that elected officials have to make."

A 2008 Virginia law requires that jail officials check the immigration status of everyone who has been arrested and taken into custody. Cuccinelli's opinion does not require police to act, but it allows officers to check the status of those who are arrested, whether or not they are jailed, and to inquire about the immigration status of everyone who is stopped, including those pulled over for a traffic violation or at a police checkpoint.

In a statement, Cuccinelli insisted that his opinion "simply declares what is existing law." Groups that have called for stricter enforcement of immigration laws expressed hope that police departments throughout the state will start routine immigration checks of motorists they stop. But an immigrant advocacy group warned McDonnell in a letter late Tuesday that it would sue if he directed law enforcement to investigate the immigration status of those who have been stopped.

As public attention focused on Cuccinelli's opinion Tuesday, it remained unclear whether the legal advisory would result in any practical change.

Dana G. Schrad, executive director of the Virginia Association of Chiefs of Police, said Cuccinelli's opinion offered advice, not a mandate. Local policies sometimes limit when police should ask about immigration. Some departments advise their officers to avoid asking about immigration during criminal investigations, which might discourage victims or witnesses from cooperating.

"It was a clarification of where we are already," said Loudoun County Sheriff Stephen O. Simpson. "It says we can ask questions under certain circumstances. That's the way we've already been doing business."

Fairfax County will not have officers check immigration status during routine traffic stops, said Mary Ann Jennings, a police spokeswoman, although it's checked after an arrest.

"It doesn't say we should. It says we may; it says we can," she said. "Fairfax County is not a sanctuary for illegal immigrants. But in terms of law enforcement, it's vital to our success in the community to keep an open dialogue. We feel asking about legal status at every traffic stop would drive potential witnesses and crime victims away and destroy any relationship of trust that we have now."

Arlington County police officers do not ask about citizenship status unless it's relevant to solving a crime. Police do not arrest illegal immigrants for federal immigration violations and report them to authorities only under certain circumstances, including involvement in terrorism or gangs, conviction on a felony, or an arrest on a violent-felony charge.

"Citizens living or traveling through Arlington should not be worried that our actions will be changing," said Detective Crystal Nosal, a police spokeswoman.

In Prince William, police occasionally run the type of traffic-stop checks Cuccinelli's opinion said they could. Typically, an officer would check when a motorist can't provide identification, police spokeswoman Kim Chin said. More often, only people who are arrested have their status checked.

"We aren't looking for it," Chin said. "If they don't provide ID, then we check."

Twenty-six states, including Maryland and Arizona, and eight localities in Virginia, including Herndon and Prince William and Loudoun counties, have the so-called 287 (g) status that deputizes local law enforcement.

McDonnell's staff declined to release any documents on the state application with the federal government. Richard Rocha, a spokesman for U.S. Immigration and Customs Enforcement, said he could not comment on pending applications.

"Since he was attorney general, the governor has supported securing 287 (g) authority for Virginia State Police and has assisted local officials in Virginia in their efforts to do the same,'' McDonnell spokesman Tucker Martin said. "The administration has been in communication with federal immigration officials over the past few months on several important initiatives to address the effects of crime committed by those illegally present in the commonwealth. We will make any official announcements on these efforts at the appropriate time."

The Virginia State Police has 1,800 sworn agents, but it's unclear whether it would affect all agents.

On behalf of Prince William's police department and sheriff's department, Corey A. Stewart (R-At Large), chairman of the Board of County Supervisors, sought and received 287g status in 2007 and 2008. Since July 2007, officers' work has helped lead to the deportations of nearly 3,000 people.

"Virginia's on a roll," he said. "Clearly, everyone is joining in the fray and cracking down on illegal immigration. I really feel there is significant momentum."

But Del. Scott A. Surovell (D-Mount Vernon) said the program will be a distraction for state law enforcement.

"This is federal problem," said Surovell, who represents a district in which nearly one-third of the residents are foreign-born. "Our state has enough problems. We can't even get the medians mowed. I think we should concentrate on core services."

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