VA Bill Bars Sanctuary Cities for Immigrants

By: Jackie Hacker, 2L
Section Editor

Sanctuary City Welcome All sign


Last month, the General Assembly passed a single-sentence law that ostensibly prohibits ‘sanctuary cities’ in the Commonwealth.
The bill, House Bill 2000, entitled “Sanctuary policies; prohibited,” simply reads that: “No locality shall adopt any ordinance, procedure, or policy that restricts the enforcement of federal immigration laws.”
The brevity of the bill, at first glance, might lend itself to the appearance of simplicity. However, the implications of the bill are far more complicated. The first complication lies in the ambiguity surrounding the term ‘sanctuary cities.’
“It’s a phrase that doesn’t have any specific legal meaning,” explains W&L Law Professor Edward Summers. “To the extent that it means anything, it means a locality that is enacting certain policies that seems to be resisting the unrestricted removal of illegal aliens.”
When a local jail books an individual and fingerprints them, the inmate’s information is shared in a database with federal law enforcement agencies like Immigration and Customs Enforcement. If ICE finds that an individual is undocumented, ICE can send the jail a detainer request, which asks the jail to voluntarily hold the individual for an extra 48 hours after the person would typically be released.
Many local counties and cities – purported ‘sanctuary cities’ – have declared that they will not collect data on the immigration status of people during routine interactions between police and civilians, or that they will not hold an arrested person longer than usual for an ICE pickup. In explaining this policy, officials who decline detainer requests often cite the extra costs of continued confinement, a potential for due process concerns, or a desire to focus more on community policing and trust-building in their jurisdictions than immigration concerns.


This begs the question: If the jail shares an arrested individual’s immigration status with ICE, but elects not to delay the release of the undocumented person, does this rise to the level of “restrict[ing] the enforcement of federal immigration laws” like H.B. 2000 prohibits?


“It’s a little bit like when the police stop you on the side of the road, and an officer asks if he can ask you some questions,” analogizes Professor Summers. “If you refuse to voluntarily answer his questions, you’re not interfering with him doing his job.”
The Trump administration, through its issuance of several executive orders and via Attorney General Jeff Sessions’ recent comments on the matter, is taking the stance that refusing to voluntarily comply with ICE is violating a federal law. However, the federal law that Sessions cited in a recent press conference, 8 U.S.C. § 1373, reads similarly to H.B. 2000, in that it merely prohibits localities going out of their way to restrict the enforcement of federal immigration statutes.

“If you barricaded a town road so that federal officials couldn’t pass, that would obviously restrict the enforcement of federal immigration laws,” says Professor Summers. “Beyond that, what if police don’t collect immigration information on people upon arrest? What if police do, but destroy those records? Is it interfering with the government when you’re not collecting information that you’re not obligated to collect?”

Katie Sheild and Luisa Hernandez, 2Ls who were student attorneys in Immigration Rights Clinic last semester, pointed out that laws like H.B. 2000 could make victims of crime, such as victims of domestic violence, less likely to report these instances to police.

“I feel like this could really affect U visas – which are a huge part of what we do in the clinic,” says Katie, referencing the visa that the government sets aside for victims of crime who have suffered serious mental and physical abuse. “The whole policy rationale behind these visas was that we want undocumented communities to report crimes within their communities and not feel afraid to go to the police. If a collateral consequence of that is police telling ICE to come get you, it just kills the whole point.”

“It is also hard to tell what the actual effect of [this] law would be,” Luisa points out, “because I think people – regardless of the fact that they are not as protected as they were before – they’re going to keep going to work. They’re going to keep sending their children to school. They’re thinking, if I get caught, then I get caught, because what else am I going to do?”

As Luisa and Katie, as well as Professor Summers, indicated, an undocumented person getting picked up by ICE is by no means the end of the story. The current backlog in U.S. immigration courts is at over half a million cases.

“There aren’t enough beds in detention centers, and there aren’t enough immigration judges,” Katie comments. “If you get placed in deportation proceedings, you go in front of a judge. I think people picture it more as ICE picking you up and then putting you on a plane.”

Overall, the future of H.B. 2000 and analogous bills from state legislatures is unknown. The Trump administration has recently posted a factsheet of on the homepage of the Department of Homeland Security website in an attempt to publicly shame localities who have indicated that they will not volunteer to hold individuals for ICE. As for H.B. 2000, Governor McAuliffe has until March 27 to veto the bill. His spokesperson has indicated that this course of action is likely.

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