By Rosalind S. Helderman and Jennifer Buske
Sunday, December 5, 2010; 12:33 AM
Virginia should lower the temperature of the debate on illegal immigration and look for ways to pass effective laws on the issue that don't run afoul of federal powers or re-legislate issues already addressed by the General Assembly, Prince William Del. L. Scott Lingamfelter (R) said Monday.
Lingamfelter said that's why he asked Virginia Attorney General Ken Cuccinelli II (R) to do a legal analysis of legislation proposed this year by Prince William Board of County Supervisors Chairman Corey A. Stewart (R-At Large) that would essentially replicate an Arizona statute that requires police officers to check the immigration status of anyone they stop for questioning if they have reasonable suspicion the person is in the United States illegally.
Stewart's "Rule of Law" legislation would also make it illegal to knowingly transport, harbor or otherwise aide illegal immigrants.
Stewart has essentially been campaigning on the need for immigration legislation, making it the centerpiece of his political identity as he looks at a run for the U.S. Senate in 2012.
But Virginia has a law, adopted in 2008, that requires sheriff's departments to check the immigration status of anyone taken into custody by police and jailed. And Cuccinelli issued a legal opinion over the summer in which he said it is legal for police officers to inquire into a person's immigration status upon stopping him or her, even if the person is not arrested.
"One of the things I'm trying to do as a legislator is get the temperature down, where we're looking at this rationally, with the goal of effective legislation," Lingamfelter said. "I didn't have the expertise, . . . and before we got in a huge back-and-forth on whether or not this works inside of Virginia's code, I just boxed it up and sent it to the attorney general and asked him if he could have his lawyers take a look."
In his legal analysis, an informal written dissection of legislation that has not been filed for consideration by the General Assembly, Cuccinelli wrote last week that he found large sections of Stewart's proposal to be duplicative of state law and unnecessary. Other portions, he said, could introduce broad classes of felony crimes, were drawn too broadly and could be preempted by federal powers.
"I was very surprised by Cuccinelli's opinion," Stewart said. "I'm attacked by a lot of pro-amnesty and liberal groups because of my position on illegal immigration, but I never expected to be attacked from the rear by a fellow conservative."
Stewart said that he disagrees with Cuccinelli's opinion but that the attorney general reviewed a policy he is no longer advocating. Instead of pushing to bring Arizona's law to the Commonwealth, Stewart is trying to get Prince William's policy adopted across the state.
Stewart said he decided to push the Prince William policy a few weeks ago, following a University of Virginia study that showed the county's policy had some effect on illegal immigration. He also said that the county's policy was reviewed by a federal district court judge in 2007 and was found to be legal and constitutional.
"The Prince William policy has been tried and tested in court, and I believe it is not only legally sound, but it's effective," he said. "I'm . . . absolutely dumbfounded why the attorney general didn't know [about] the 2007 decision" regarding the county's policy.
Lingamfelter said he's unsure whether Prince William's policies on illegal immigration - considered the toughest in the state - actually result in those who are stopped or arrested by police being treated any differently than they are anywhere else in Virginia. He said he was trying to learn more about how the county's policy and state law are being applied to see whether there is room for legislation.
"We can't legislate by rhetoric," he said. "We've got to legislate based on actual activity on the ground."
Immigration advocates have also said that Prince William's policy is duplicative of state law. "Either he's ignorant of state law, or he's deliberately deceiving people," lawyer Claire Guthrie Gastanaga said.
Stewart disagreed, saying that the county's policy requires immigration checks to be conducted on anyone arrested but that the state law waits until the person is in jail.
"Only half of the people arrested end up in jail, which means Prince William's policy is checking twice the number of people than other localities are checking at the jail level," he said.
Stewart said he was unaware that Lingamfelter had asked Cuccinelli to draft a legal opinion until it was made public last week. Stewart said he thinks he and the delegate will work together to get some form of immigration legislation before the General Assembly.
"Cuccinelli has been less than helpful on this issue," Stewart said. "His opinion expresses fear of being challenged in court. . . . I don't care who challenges me on this - if it's Cuccinelli or the pope - I am not going to back down."