No More Arizonas

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(Wednesday) August 4, 2010

By Carla Branch
alexandrianews.org

Virginia Attorney General Ken Cuccinelli’s recent opinion that police officers may inquire about the immigration status of anyone who has been stopped on suspicion of a crime brought community organizers and Virginia State Delegate David Englin together at Tenants and Workers United this morning. They denounced Cuccinelli’s opinion and said that it does not change the law.

“I think that the one thing that members of the General Assembly can agree on no matter what political point of view they represent is that the Constitution and the rule of law still apply in Virginia,” Englin said. “The attorney general wrote his opinion in response to a request for clarification from Prince William Delegate Bob Marshall who is trying to circumvent the General Assembly where he could not get his anti-immigrant legislation passed.

“Marshall and Cucinelli represent a very small group of Virginia officials. There are many others who stand with Virginia’s immigrant families and who will fight any anti-immigrant legislation that is proposed.

“Virginia can’t afford to cut the medians along our highways so how can we afford to train law enforcement officers on complex immigrantion laws that are the responsibility of the federal government? We agree that there needs to be immigration reform but that must happen at the federal level,” Englin said.

Simon Sandoval-Moshenberg is an attorney with Victor Glassberg and Associates, a civil rights law firm based in Old Town. “Attorney General Cucinelli’s opinion does not proport to change current Virginia law. However, after stating that local and state law enforcement officers are not responsible for immigration enforcement, Cuccinelli then concludes that law enforcement may inquire about an individual’s immigration status if they have been stopped for some other reason. If my law student intern had written this memo, I would have sent it back because the logic does not follow.

“People need to understand that, just because a police officer asks a question, they do not have to answer. The magic words are ‘I have the right to remain silent and I want to speak to an attorney’. Also, if anyone is asked these questions by a police officer, they should contact one of the community organizations who can get them in touch with an attorney. Also, police officers should understand that it is not Attorney General Cuccinelli that we will be suing but the individual police officer who asked the question about immigration status,” Sandoval-Moshenberg said.

Most police departments, at least in Northern Virginia, will not change the way they do business. ”We respect the Attorney General’s opinion, however, State and local laws have not been changed. Alexandria residents and those who work or visit our City can be assured that our Police Department’s actions and policies remain unchanged,” said Alexandria Police Chief Earl Cook. “Our current policy is that we do not ask about immigration status unless it is relevant to the situation or would assist us in solving a crime. If an arrest is made, then that individuals immigration status is verified as part of the booking procedures at the adult detention center through the Alexandria Sheriff’s Office. If that person is found to be illegal, then their information is referred to Immigration and Customs Enforcement.”

The Opinion

Marshall asked Cucinelli whether Virginia officers have the legal authority to perform a “background check into the legal presence status of persons in a vehicle that is stopped by police or in similar circumstances as persons are being questioned in Arizona under their new Immigration Law”; and if Virginia law enforcement officers do have this authority under current Virginia statutes, would those statutes also apply to zoning officers in counties and cities, and state park administrators.

Cucinelli’s response:

(a) As we noted in 2007, police can arrest people for criminal violations but, because the law is not clear, it is not advisable to arrest for civil infractions.

(b) We noted that police can make inquiries: When police have reasonable articulable suspicion to believe a crime has been committed, or that probable cause is present, police can inquire about that criminal violation – whether the crime is a violation of immigration laws or some other crime.

(c) We said that when police have done a lawful traffic stop, police can ask about immigration status so long as that does not prolong the length of the stop.  The U.S. Supreme Court expressly has said that this is permissible.

(d) We also noted that when persons are in more prolonged state custody (a traffic stop would not qualify), the Vienna Convention on Consular relations requires an inquiry into citizenship.

(e) Finally, we noted that conservation officers do have the authority to investigate crimes (including – where appropriate – immigration violations), but zoning officers do not.

Does the opinion usurp federal authority?

“This does not usurp federal authority, because Congress created by design a cooperative federal-state immigration enforcement process,” according to a release from Cucinelli’s office. “Some aspects of immigration law are reserved to federal authorities, while some are joint federal-state efforts. With respect to crimes, Virginia routinely cooperates with the federal government on matters of immigration enforcement.

“The official opinion that Virginia law enforcement officers may inquire into the immigration status of persons stopped or arrested simply declares what is existing law. In the context of a legal law enforcement stop or arrest, there is no legal distinction between immigration crimes and any other crime. What a law enforcement officer can and cannot ask in a citizen encounter is the same whether the underlying concern is an immigration violation or a bank robbery,” Cucinelli’s release said.

According to the Virginia Attorney General website:

The law does not distinguish between criminal violations of immigration law versus violations of any other criminal law. Crime is crime. As a matter of Fourth Amendment law, it is settled that:

- A police officer can approach anyone and ask him or her questions.  The officer cannot detain that person unless the officer has “reasonable articulable suspicion” or probable cause that a crime has been committed.  The person approached can choose to answer or not answer the questions.

- When a police officer has “reasonable articulable suspicion,” the officer can briefly detain a suspect and investigate whether a crime has occurred.  If the officer has probable cause to believe a crime has occurred, the officer can make an arrest.

These scenarios are true whether the crime is bank robbery, murder, trespass, or criminal violations of immigration laws. The legal framework does not change just because the crime happens to be an immigration-related crime.

Although immigration is politically controversial, the legal principles discussed in the opinion are a matter of settled law and do not break any new legal ground.

Cucinelli noted a 2009 California Supreme Court opinion:

“While it is well settled that only the federal government may regulate the border and establish rules governing who may enter and who may stay, equally clear is that Congress has in its immigration enactments embraced a model of collaborative federalism under which states and localities may assist in the enforcement of federal immigration policy.”

Getting Organized

The National Day Laborers Organization fought against the Arizona law that would have allowed local and state law enforcement officers to detain people who were suspected of violating immigration law. Just before that law was to take effect, a federal judge struck down many of its more controversial components.

“Apparently Attorney General Cuccinelli hasn’t gotten the message,” said Sarahi Uribe who works with the National Day Laborers Organization. “But I am here to tell him: no more Arizonas. No more Arizonas. No more Arizonas. Not in Virginia and not in any other place in this country.”

All of the community organizations vowed to fight against anti-immigrant legislation. “We have worked throughout Virginia for the past two years to unite people and build stronger communities that embrace our diversity,” said Tram Nguyen, the associate director of the Virginia New Majority. “And we have been successful. In the 37^th District, which Mr. Cuccinelli represented in the Virginia Senate for eight years, there was a special election in January. David Marsden, a moderate Democrat, was elected with his message of inclusion. That’s what people want, even the people in Cuccinelli’s back yard.

“We are going to continue to carry this message to Virginians and will hold meetings with legislators and work to educate people throughout Virginia,” Nguyen said.