RICHMOND — Attorney General Mark R. Herring (D) has issued an opinion giving Virginia law enforcement officials cover to release suspected undocumented immigrants before federal officials can assume custody.
The move thrusts Herring back into the spotlight as a defender of liberal causes — a reputation supported by his refusal to defend the state’s ban on same-sex marriage and his declaration that some illegal immigrants who were brought to this country as children can qualify for in-state college tuition under existing law.
Herring’s nonbinding opinion says that if prisoners are otherwise eligible for release, sheriff’s and jail officials can defy requests from U.S. Immigration and Customs Enforcement to detain them because of their immigration status.
Immigration-related issues have split the Virginia General Assembly largely along party lines and contributed to the ouster of then-U.S. House Majority Leader Eric Cantor (Va.), who lost a Republican primary after expressing interest in comprehensive reform.
Civil rights groups applauded Herring’s decision, which was issued quietly Monday, and conservative Republicans denounced it as a move designed to raise his political profile if he decides to run for governor in 2017.
Herring said the opinion simply echoes decisions of other state and local governments as well as the U.S. Department of Homeland Security, which he said plans to end the program that issues “ICE detainers.” The detainers are requests from ICE that local law enforcement agencies detain prisoners suspected of being in the country illegally.
Virginia Beach Sheriff Ken Stolle, a lawyer and former Republican state senator, said he asked Herring for an opinion after reading about cases in other states in which federal courts held sheriffs personally responsible for immigration detention.
“I understand some people think it’s a political football, but I couldn’t disagree more,” Stolle said. “You can’t detain someone without the legal authority. You can’t do that in America. And I’m proud that you can’t do that in America.”
Stolle said his office gets five to 10 detainer requests from ICE a month. Although not logistically difficult, he said, holding individuals picked up for drunken driving or other relatively low-level offences makes him uncomfortable.
Sen. Ryan T. McDougle (R-Hanover), chairman of the Senate Republican caucus, said he plans to file a bill in this year’s session, which starts next week, that would allow sheriffs to release prisoners to ICE five days before their local sentence is up.
“The question is not whether the federal government can pick them up. It’s whether the local sheriff can hold them until the federal agency can come get them,” he said.
Advocates for stronger immigration laws, however, see the situation as politically fraught especially in light of President Obama’s executive action offering temporary legal status and an indefinite reprieve from deportation to millions of illegal immigrants.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a Washington think tank that advocates tighter immigration controls, said Herring’s decision gives local governments a way around immigration laws they don’t like.
“It allows the political leaders to put pressure on law enforcement agencies,” she said. As a result, they will “end up releasing people who ICE wants to take custody of either because they’re dangerous or because ICE wants them removed. Inevitably, some of them will cause harm to people in the community,” she said.
Some conservative lawmakers agreed, including Del. David I. Ramadan (R-Loudoun). “As we have seen in other recent opinions on immigration-related matters,” Ramadan said, “Mark Herring has become a far-left liberal activist abusing the office of the attorney general on issues that serve no one but his potential governor run.”
Ramadan and Sen. Richard H. Black (R-Loudoun) have filed legislation that challenges Herring’s declaration that young immigrants granted legal status under a 2012 presidential initiative could apply for in-state college tuition rates.
But Del. Scott A. Surovell (D-Fairfax) said immigration enforcement is the responsibility of the federal government. He added that Prince William County’s controversial measures to crack down on illegal immigrants have hurt property values.
“Alabama-style immigration tactics only undermine Virginia’s pro-business reputation and undermine our ability to attract the new residents which have driven economic growth in Virginia for the last two decades,” Surovell said.
Herring’s opinion echoes a letter the American Civil Liberties Union of Virginia sent to law enforcement agencies over the summer, advising that there was no legal requirement that they honor ICE detention requests.
“This opinion is neither pro-immigration nor anti-immigration,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. “It is simply about the Attorney General’s respect for the U.S. Constitution, due process, and the rule of law.”
For his part, Herring pointed to Homeland Security Secretary Jeh Johnson’s recent announcement that he was ending the program, called Secure Communities, that issues the detention requests.
Herring’s spokesman, Michael Kelly, said, “Those who would make it a political issue simply dislike the outcome the law requires.”