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Virginia legal opinion supports checks of immigration status

At 42, Virginia's Ken Cuccinelli stands as one of the most high-profile, active attorneys general in the state's history.

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Washington Post Staff Writer
Tuesday, August 3, 2010

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.

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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.


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