Commonwealth of VA jails report you to ICE says Fairfax criminal lawyer

Commonwealth of Virginia jails should not be in the business of informing immigration authorities

Commonwealth of Virginia jails will report the names of all non-United States citizens to United States immigration authorities. As a Fairfax criminal defense lawyer, I know that the Virginia legislator has passed legislation that will limit such mandatory ICE reporting to felonies only.

Whether a Virginia criminal defendant is obligated to tell their immigration status

The Fifth Amendment’s right to remain silent and the law support every person’s right in the Commonwealth of Virgingia and the rest of the United States to decline to answer anyone’s questioning about their immigration status. Moreover, immigration law is so complex that not everyone knows their immigration status. Some people might think they do not have legal immigration status in the United States, only to learn that their parent obtained such legal status for the whole family when the person was a minor. Some people may have been too young to have remembered whether the family had a naturalization ceremony in the United States.

If a Commonwealth of Virginia arrestee declines to provide information on his or her immigration status, that silence might get reported to the court magistrate or judge deciding the arrestee’s bond and release conditions, and might be used against the arrestee. My view is that silence is ideal with criminal system authorities other than providing booking information. Once a criminal defendant obtains a qualified lawyer, the lawyer can address whether to provide the authorities with information that the defendant did not disclose.

The statutory language requiring Commonwealth of Virginia jails to report non-United States citizens to federal immigration authorities

The Commonwealth of Virginia Code provides that: “Whenever any person is committed to a correctional facility[, the jail] shall inquire as to whether the person (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States. The [jail] shall make an immigration alien query to the Law Enforcement Support Center of the United States Immigration and Customs Enforcement for any person who (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States, or for whom the answer to (i) or (ii) is unknown.” Va. Code § 53.1-218.

Legislation passed this year will only make such reporting to United States Immigration and Customs Enforcement (ICE) mandatory for felony cases. S. 491. Commonwealth of Virginia will remain free to voluntarily disclose such information; hopefully this will not do so.

What happens when ICE learns of an arrested or convicted non-United States citizen?

Even if a non-United States citizen has permanent residence (green card), granted asylum / refugee status, a professional visa (H1-B), student status (F-1) or other lawful status in the United States, ICE might issue an immigration detainer on the arrestee / criminal defendant, depending on the crime charged. An ICE detainer lasts 48 hours (excluding weekends and federal holidays) after an inmate’s jail release date, for immigration authorities to pick up the inmate. Non-federal jails have no obligation to honor ICE detainers, and not all do (nor should they, in my view). One colleague’s understanding is that the Fairfax jail is not honoring ICE detainers, which is not uniform by county jails in the commonwealth.

Fairfax criminal lawyer Jonathan L. Katz is top-rated by key attorney reviewers AVVO & Martindale-Hubbell, and pursues your best defense against felony, misdemeanor and DUI prosecutions. To schedule a free in-person initial consultation with Jon Katz about your court-pending criminal case, please call 703-383-1100.