July 25, 2024

The Fourth Amendment to the Constitution guarantees the rights of all people to be secure in their persons, free from unreasonable seizure. The Fourteenth Amendment requires that all people be treated equally under the law with access to due process. The status of a person as an inmate or an undocumented immigrant does not diminish their right to be free from unlawful seizure, nor does it eliminate their access to due process and equal protection.

It is with these foundational principles in mind that the Fairfax County Sheriff’s Office has carefully created its policies concerning the service of ICE detainers and judicial immigration warrants within the Fairfax County Adult Detention Center. Our policies endeavor to protect public safety, while ensuring those within our custody are afforded their Constitutional rights. Our policy clearly states that the Sheriff’s Office will detain any individual who has a judicial warrant authorizing their arrest, including a judicial immigration warrant. The Fairfax County Sheriff’s Office will not detain an individual based on an informal request or detainer.

Let me be clear, the Fairfax County Sheriff’s Office policy follows all state and federal laws concerning the service of ICE detainers and warrants. In an advisory opinion issued on January 5, 2015, the Attorney General advised that “an ICE detainer is merely a request. It does not create for a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody. For that reason, an… inmate with a fixed release date should be released from custody on that date notwithstanding the agency’s receipt of an ICE detainer.” This guidance was provided to Virginia Sheriffs and has never been amended or superseded.

Recent media inquiries have suggested it is the fault of the Fairfax County Sheriff’s Office that individuals who are charged with serious crimes have been released from the custody despite their status as undocumented immigrants. For every one of these inmates, there has been a court order requiring the release of the individual in question. In some cases, the Courts and/or the Commonwealth’s Attorney have agreed to release the person on bond despite the serious charges. In other cases, the inmate in question had served their full sentence. And in other cases, the Commonwealth’s Attorney elected to nolle prosequi, or dismiss, the charges altogether. The Sheriff’s Office must act on these lawful judicial orders by releasing these inmates.

ICE knows that should they wish to take one of these offenders into custody, all that is required on their part is a judicial warrant authorizing arrest. ICE is notified every time an undocumented immigrant is taken into our custody. Yet, time and again, they make no effort to secure a warrant that would give judicial authority to detain. This inaction is a failure of Immigration and Customs Enforcement, not of the Sheriff’s Office.

It is noteworthy that several media inquiries were about individuals released from the Adult Detention Center who were previously deported. These individuals were deported, left the country, and were allowed to gain access to the United States again without documentation. Illegal immigration is a serious problem. It is time to fix this broken system. However, denying constitutional rights to those who have been allowed by ICE to enter this country without documentation multiple times is not the solution.

Congress and the Supreme Court have long acknowledged the supremacy of the federal government in matters concerning immigration law and policy. See generally, Arizona v. United States, 567 U.S. 387 (2012). Over the years in Fairfax, the federal authorities have treated undocumented inmates inconsistently, depending on which individuals hold certain offices. As put by Justice Kennedy in Arizona v. United States, [d]iscretion in the enforcement of immigration law embraces immediate human concerns.” Id. An individual whose liberty is in question, undocumented or not, must have access to due process.

The Sheriff’s Office will detain any individual who has an outstanding immigration warrant issued by a judge. ICE’s refusal to obtain these warrants and effectively carry out its duties falls squarely on ICE’s shoulders. The Sheriff’s Office is not responsible for their inaction nor for the failure of the criminal justice system to effectively hold criminals accountable.