Civil Violations of Federal Immigration Law

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August 30, 2010

By Facsimile and Email
The Honorable Robert E. McDonnell
Governor of Virginia
Third Floor, Patrick Henry Building
Richmond, Virginia 23219

Re: Memorandum of Agreement (MOA) between the Virginia Department of State Police
and the Department of Homeland Security under Section 287(g)

Dear Governor McDonnell:

We are writing you as members of VA-SCOPE (The Virginia Alliance for Sensible Community
Policing Efforts). Since it was formed in 2004, VA-SCOPE has functioned as an alliance of
organizations and individuals concerned about preserving trust between state and local law
enforcement and the immigrant communities of Virginia. VA-SCOPE members believe that
expanding the scope of state and local enforcement to include the enforcement of civil violations of
federal immigration law is bad public policy and would undermine that vital trust. We are
particularly deeply concerned about the severe “chilling effect” that descends on
immigrant communities, and especially on immigrant crime victims and witnesses, if
they perceive that law enforcement is to be feared rather than trusted, and the
subsequent impact on crime reporting and public safety in Virginia.

While we agree that the current immigration system is broken, turning state police into federal
functionaries with immigration enforcement duties through implementation of a Memorandum of
Agreement (MOA) under Section 287g of the Immigration and Nationality Act, 8 U.S.C. § 1375(g),
is not the answer to this problem and does not properly prioritize the allocation of limited state law
enforcement resources.

      The MOA will decrease rather than enhance public safety. Many state and local police
       chiefs and law enforcement officers have long sought to keep their activities separate from
       those of federal immigration officials. They have done so out of a belief that a clear line of
       separation is essential to public safety. It is axiomatic that when members of immigrant
       communities, many of whom come from “blended” status families, begin to see state and
       local police as deportation agents, they stop reporting crimes and assisting in
       investigations—negatively impacting the quality of life and safety and security of all
       Virginians. In addition, volunteering the state police to work under the direction of the
       Department of Homeland Security and take on the federal responsibility to enforce civil
       immigration laws makes even less sense today than it did in 2004 when the idea was first
       proposed. Budget cuts have eroded the ability of law enforcement to enforce state and local
       criminal laws effectively; adding federal job responsibilities to their portfolio will stretch
       already limited resources and detract from their primary responsibilities to protect our

      No further action is needed to keep Virginians safe. Virginia has led the nation in
       taking steps (many of which we opposed as excessive, overreaching or ineffective) designed
       in theory to address public safety issues related to criminal conduct by people from other
       countries here either with or without authority. Virginia law already allows the state’s law
       enforcement officers to arrest certain criminal violators of federal immigration law. The
       Commonwealth is one of only two states that requires an immigration status inquiry of
       every person taken into custody for any criminal act and also has a presumption against bail

   *For more information about VA-SCOPE, please contact
      for any person arrested for any crime who is determined to be in the country illegally.
      Despite concerns that have been raised about the accuracy of the data base and the targets
      of the program, the state participates in the ICE Secure Communities program. Some
      localities and correctional facilities already have 287g agreements. All of these other state
      and local initiatives were said to be needed to improve the ability and authority of law
      enforcement to combat gang activity, drug trafficking, and terrorism. None of these
      programs has yet been proven to do so, yet some have been shown increasingly to affect
      adversely working people and their families who have committed no crimes. Signing a
      state-level MOA would be a redundant and reckless step that would further erode trust
      between law enforcement and Virginia’s immigrant communities at a time when that trust is
      urgently needed, and without any evidence that it is necessary to take this step to keep
      Virginians safe.

VA-SCOPE remains resolutely opposed to all efforts to devolve enforcement of federal
civil immigration laws to the states and localities, and urges you to take full account of
all the costs and consequences that would follow from undertaking such an unfunded
mandate. We understand that you have already reached out to Secretary Napolitano to request
development and implementation of an MOA between the Department of Homeland Security and
Virginia Department of State Police and that you advocated that previous governors sign such an
agreement. Nonetheless, there are several important law enforcement issues that we believe must
be addressed before you, or any other Governor, should choose to sign any such agreement on
behalf of the State Police:

   1) Protections for Immigrant Victims and Witnesses of Crimes. Any proposal to expand
      state-level enforcement of federal immigration laws must, as a first priority, include express
      language stating that routine inquiries will not be made into the immigration status of crime
      victims and witnesses. Any MOA must include the language from the legislation (introduced
      by Senator Janet Howell and supported by law enforcement, victim advocates, faith
      organizations and immigrant representatives) that passed the Senate unanimously three
      times (2008, 2009 and 2010), twice with the affirmative votes of the current Attorney
      General in committee and on the floor of the Senate. In addition, we urge you to support
      legislation codifying the policy against routine inquiries so that it is applied uniformly across
      the state. Finally, we ask that you take steps to ensure that the state and each local
      government train its law enforcement and other government agents to understand and
      comply with the provision, as well as to conduct outreach to educate the immigrant
      community about these protections.

   2) Prevention of Racial Profiling. Any proposal to expand the state-level enforcement of
      federal immigration laws must, as an equal priority, also provide for the collection and
      reporting of racial and ethnic data regarding persons stopped, detained, arrested and/or
      convicted. Legitimate fears of bias-based policing cannot be allayed in the absence of a
      commitment to a meaningful system by which the implementation of the program is
      monitored. The State Police historically have opposed the collection of racial and ethnic
      data. As Governor, you must direct the collection of such information so that the
      implementation of any 287g program can be monitored and an informed assessment made
      regarding any possible racial or ethnic bias. Any MOA also must include specific
      requirements for complaint procedures and monitoring because without such processes,
      monitoring will be ineffective.

   3) Limits on Immigration Status Inquiries. Any proposal to expand the state-level
      enforcement of federal immigration laws must be limited to the enforcement of immigration
      laws only in the context of an ongoing criminal investigation involving a specified list of
      serious crimes. Under no circumstances should a proposal permit any state or local law
      enforcement officer to be engaged in unlimited enforcement of civil immigration laws
      against persons who have not committed a serious criminal act under state or local law.

As Governor, you are uniquely positioned with the power—and the responsibility—to promote
public safety for all Virginians. Virginia’s law enforcement officers need the trust of all of the
communities they serve to keep the Commonwealth safe for all its residents. Turning state police
into immigration agents threatens to destroy this vital trust, and set back decades of community-
policing advances.

To summarize, it remains our fundamental and firmly held belief that state and local law
enforcement of civil violations of federal immigration law is bad public policy under any
circumstance, and we urge you not to negotiate or sign a statewide MOA. If your office
continues to pursue increased immigration enforcement powers for the Virginia Department of
State Police, however, we believe that, as Governor, you must first ensure that victims and
witnesses to crime will be protected, a system will be in place to monitor implementation of any
such agreement for evidence of bias, and that any such authority is strictly focused on persons who
have committed serious criminal acts.

Thank you very much for your thoughtful consideration of our concerns.


Hispanic Community Dialogue
Hispanic Services Council of Harrisonburg
Immigrants First, PLLC
Just Neighbors
LUCHA Ministries, Fredericksburg
LULAC Virginia
Multi-Cultural Alliance of Virginia
Northern Virginia Family Service
Reston Interfaith Center
SEIU Local 32BJ
Tahirih Justice Center
Tenants and Workers United
Unity in the Community (Manassas)
Virginia Coalition of Latino Organizations
Virginia Interfaith Center for Public Policy
Virginia Justice Center
Virginia Organizing

Individuals (organizational affiliation for identification only):
Rosaura Aguerrebere, School Board Member, Falls Church City Public School District
Peter Loach, Executive Committee, Creciendo Juntos-Growing Together, Charlottesville
Jennifer S. McCloud, School of Education, VA Tech

cc: The Honorable Janet Napolitano


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