Virginia AG state immigration opinion

The State of Virginia, a Washington Post article yesterday relates, joined the national debate over immigration, with Virginia Attorney General Ken Cuccinelli II's having issued an opinion that authorizes law enforcement officers to check the immigration status of anyone stopped by police for any reason.

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

"'Our opinion basically says 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 told a news conference Monday. 'That's consistent with Supreme Court authority.'"

The Post further indicated that the Virginia attorney general had issued the opinion in response to a query by Del. Robert G. Marshall, who had sought clarification on whether "Virginia law enforcement officers, under present state law, could conduct investigations into the immigration status of persons stopped or arrested by law enforcement and, specifically, whether Virginia officials presently have the same authority as Arizona officers under a recently enacted Arizona statute, and, further, whether that authority extends to Virginia state park personnel and local zoning officials." Marshall told The Post he chose to seek the legal opinion because he feared that the state 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," he said.

For the record, the Virginia AG advised that "Virginia law enforcement officers, including conservation officers, may, like Arizona police officers, inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States."

In the current setting, Mr. Cuccinelli cited an opinion issued by his Office in 2007 which addressed "whether state and local officers in Virginia had the authority to detain and arrest individuals who have violated a criminal law of the United States, including a criminal violation of the immigration laws of the United States, (concluding) that law enforcement officers in Virginia in fact had the authority to arrest persons for criminal violations of immigration laws. Indeed, it would be most surprising if state and local officers lacked that authority, where appropriate, to arrest individuals suspected of committing federal crimes such as bank robbery, kidnapping or terrorism. State and local officers are not required to stand idly by and allow such criminals to proceed with impunity." (cited 2007 Opinion)

Both current opinion and that from two years ago make the distinction, however, between criminal and civil sanctions. Thus, while stating that "law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws…. The 2007 opinion further noted that federal law is unclear regarding the authority of state law enforcement to arrest for civil violations of immigration laws, concluding that, absent an agreement between the federal government and a state or local law enforcement agency authorizing arrests for civil, as opposed to criminal, violations of immigration laws, known as a §287(g) agreement, state officers should refrain from making arrests for civil violations until the law is clarified. There has been no clarification or change in the law since the 2007 opinion was issued that would suggest a different conclusion at the present time."


Then-Ohio Attorney General Marc Dann issued comparable opinions with the same civil/criminal distinctions in June & September 2007.