AG: Police can investigate immigration status in Virginia

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Attorney General Ken Cuccinelli says officers in Virginia have the power to investigate the legal status of those they detain or arrest.

By Landmark News Service

Much like their counterparts in Arizona, Virginia police can investigate the immigration status of people they detain or arrest, Attorney General Ken Cuccinelli said in a recent legal opinion.
This ruling could be of particular interest to police in the Twin Counties, which has a large Hispanic population.
According to Weldon Cooper at the University of Virginia, Galax has the third-highest Hispanic population (per capita) in Virginia, close to 16 percent.
Virginia's top prosecutor offered his guidance to a state legislator who sought Cuccinelli's interpretation of Virginia law against the backdrop of national developments that have renewed the fierce, often visceral debate over American immigration policy.
Arizona this year passed a sweeping and controversial immigration enforcement law that included a provision that requires police who stop a person while enforcing other laws to investigate the person's immigration status if they have a reasonable suspicion the person is in the country illegally.
Several aspects of the Arizona law recently were blocked by a federal judge's order in a case between the state and federal officials opposing the law.
Cuccinelli previously attached his name to a legal brief supporting Arizona's case, and he expressed disappointment when injunctions were granted.
Also, a local government official from Northern Virginia made headlines by establishing a political action committee dedicated to strengthening the state's immigration rules.
Cuccinelli said it's his opinion that Virginia police officers can ask about immigration status as part of criminal investigations "so long as they don't extend the duration of the stop by any significant degree."
But he advised authorities against addressing civil violations of federal immigration laws.
Under current state law, authorities are required to check the immigration status of individuals who are taken into custody. Legal interpretations by attorneys general may carry some weight with courts but aren't considered binding.
Claire Guthrie Gastanaga, a Virginia lawyer and lobbyist who has worked on immigration issues, said Cuccinelli has "done Virginians a disservice" by publishing an opinion that confuses a complicated issue that can evoke passionate feelings.
The opinion, she said, "seeks to serve his personal political agenda rather than objectively interpret the law" and reflects the position of groups "seeking to reduce or prohibit all immigration."
"The opinion closely tracks the advocacy position that the AG took in his amicus brief in the Arizona case — a position rejected by the federal judge," she added.

How Cuccinelli's opinion will be interpreted by law enforcement is unclear.
Galax Police Chief Rick Clark said that, for the past five years, "we have reported every undocumented alien that we have in custody to immigration, we check them against an automated immigration database."
For non-serious offenses, offenders are not deported.
"However, for crimes of violence, weapons violations and felonies, immigration has filed detainers. We have not, to my knowledge, had one person deny being in the U.S. illegally."
Because of the city's large Hispanic community, the Galax Police Department's officer training includes guidance on how to handle immigration issues.
Clark said police can come in contact with people three different ways.
During a casual encounter, "there is nothing to stop the police from striking up a conversation with anyone in a public place," Clark said, and the conversation can include an inquiry about a person's legal status.
Officers also interact with citizens when there is a reasonable suspicion that a crime has or is about to be committed.
"The Supreme Court has recognized this type of encounter and continually refined the concept since the early 60's," Clark said.
"Basically, the police have the right in these situations to ask investigatory questions including, but not limited to, name, date of birth, residency, address, etc."
The third type of encounter, an arrest, leads to more and different questions.
And, Clark says the training continues. "We are working with the Grayson County Commonwealth's Attorney to do in-house training on police/citizen encounters."
Virginia State Police spokeswoman Corinne Geller said the agency's policy permits troopers to inquire about immigration status "if it is relevant to an ongoing investigation."
But that isn't mandatory, she added.