Can Virginia police, sheriffs, conservation officers, or zoning officials check the immigration status of people they encounter or stop?

Plain-English summary

In the spring of 2010 Arizona passed the high-profile "Support Our Law Enforcement and Safe Neighborhoods Act" (SB 1070), which told Arizona police to make a "reasonable attempt, when practicable, to determine the immigration status" of people they had already lawfully stopped, detained, or arrested. A Virginia delegate asked the AG whether Virginia law enforcement could already do the same thing.

The AG concluded that Virginia officers can. The Arizona Act did not grant any new investigative authority; it directed existing police authority toward immigration questions. Virginia law enforcement officers and conservation officers (officers of the Department of Conservation and Recreation who are statutorily defined as "law enforcement officers") have the authority, during otherwise lawful stops or arrests, to inquire about immigration status. The U.S. Supreme Court in Muehler v. Mena, 544 U.S. 93 (2005), held that questions about immigration status during a lawful detention do not, without more, violate the Fourth Amendment so long as they don't prolong the detention.

The AG drew a clear line at criminal versus civil violations. A 2007 AG opinion had concluded Virginia officers can arrest for criminal violations of federal immigration laws, but cannot arrest for civil violations of those laws absent a § 287(g) agreement. The 2010 opinion left that 2007 conclusion in place.

State park personnel without arrest powers (those working under the Director of the Department of Conservation and Recreation more generally) don't have the same authority as conservation officers (a specific statutory role). And zoning officials, whose enforcement role is civil in nature with civil penalties, lack authority to investigate criminal violations of federal immigration law. They may, "like any responsible citizen," report what they encounter to the proper authorities.

The AG also pointed out a treaty obligation: Article 36 of the Vienna Convention on Consular Relations requires state and local officers to advise arrested foreign nationals of the right to speak with a consular officer. Complying with that treaty effectively requires asking about nationality.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legal landscape on state involvement in immigration enforcement has shifted significantly since 2010. Arizona v. United States, 567 U.S. 387 (2012), struck down major portions of Arizona's SB 1070 while upholding the "show me your papers" provision under limited circumstances. Subsequent federal policies (DACA, sanctuary jurisdiction enforcement, 287(g) program changes) and Virginia legislation regarding cooperation between local law enforcement and federal immigration authorities have all moved. Anyone planning current enforcement policy should not rely on this 2010 opinion as a current statement of the law.

Common questions

Could a Virginia officer pull someone over solely to check immigration status?
No. The opinion is explicit that immigration inquiries are permissible only during a lawful stop, detention, or arrest based on something else, and only if the inquiry does not prolong the detention beyond what is lawful. Pulling someone over solely to investigate immigration status would not fit this framework.

What's the difference between civil and criminal immigration violations?
Federal immigration law has both. Civil violations (like being present without authorization) are handled administratively, primarily by ICE. Criminal violations (like illegal reentry after deportation) are crimes. The 2007 AG opinion said Virginia officers can arrest for criminal violations; the 2010 opinion reaffirmed that and reiterated that civil-violation arrests require a § 287(g) agreement.

Are conservation officers really "law enforcement officers"?
Yes. They are appointed by the Director of the Department of Conservation and Recreation and given authority "to enforce the laws of the Commonwealth and the regulations of the Department," including arrest powers for crimes committed in their presence and for felonies not committed in their presence.

Why can't zoning officials do the same?
Zoning enforcement is civil. Zoning ordinances are designed to promote public health, safety, convenience, and general welfare, carry civil penalties, and certain cities can even use volunteers for zoning enforcement. That structure is the opposite of the criminal-investigation context where immigration inquiries are permissible.

Can a zoning officer at least report what they see?
Yes. The AG specifically said zoning officials "can, like any responsible citizen, report to the proper authorities any suspected violations of the law, including immigration violations, that they encounter while performing their duties."

What's the Vienna Convention angle?
Article 36 of the Vienna Convention on Consular Relations requires officers to advise foreign nationals of their right to consular notification when arrested and held longer than briefly. That advice is hard to give without knowing the person is a foreign national, which effectively involves an immigration-related inquiry.

Background and statutory framework

Virginia's general police authority restricts officers' authority in civil matters. The opinion noted that sheriffs are not subject to that same statutory restriction, but the Code does not expressly authorize sheriffs to arrest for civil violations of federal immigration laws either. Conservation officers, appointed by the Director of the Department of Conservation and Recreation, are statutorily defined as "law enforcement officers"; the Director's own authority does not include the general police powers to prevent and detect crime.

Conservation officers, like local police and the State Police, may arrest "for any crime" committed in their presence and for felonies not committed in their presence.

Zoning enforcement, by contrast, is civil in nature. Zoning ordinances are meant to promote public health, safety, convenience, and general welfare; they carry civil penalties; persons who refuse to abate a violation are subject only to misdemeanor punishment; and certain cities may rely on volunteers to enforce zoning requirements. The AG read all of that as marking zoning enforcement as civil rather than criminal.

Federal immigration law has both criminal violations (which the opinion said state officers may arrest for) and civil violations. Section 287(g) of the INA allows DHS/ICE to enter into agreements deputizing state and local officers for immigration enforcement; absent such an agreement, the 2007 opinion counseled against arrests for civil violations.

Fourth Amendment authority: Adams v. Williams, 407 U.S. 143 (1972), permits brief detention and questioning on reasonable suspicion. Muehler v. Mena, 544 U.S. 93 (2005), held that questioning about immigration status during a lawful detention does not, by itself, prolong the detention or violate the Fourth Amendment.

Citations

• Va. Code § 2.2-505
• INA § 287(g) (8 U.S.C. § 1357(g))
• Vienna Convention on Consular Relations, art. 36
• Adams v. Williams, 407 U.S. 143, 145-46 (1972)
• Muehler v. Mena, 544 U.S. 93, 100-01 (2005)
• Support Our Law Enforcement and Safe Neighborhoods Act (2010 Arizona)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-047-Marshall.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 30, 2010

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Robert G. Marshall
Member, Virginia House of Delegates
P.O. Box 421
Manassas, Virginia 20108-0421

Dear Delegate Marshall:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether Virginia law enforcement officers, under present state law, may conduct investigations into the immigration status of persons stopped or arrested by law enforcement and, specifically, whether Virginia officials presently have the same authority as Arizona officers under a recently enacted Arizona statute, and, further, whether that authority extends to Virginia state park personnel and local zoning officials.

Response

It is my opinion that Virginia law enforcement officers, including conservation officers, may, like Arizona police officers, inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States.

Background

You note that Arizona recently enacted the "Support Our Law Enforcement and Safe Neighborhoods Act" ("Act"). The Act contains a number of provisions and prohibitions concerning illegal aliens. Most germane to your inquiry, the Act directs police officers to make a "reasonable attempt, when practicable, to determine the immigration status of a person" who is arrested or in custody "except if the determination may hinder or obstruct an investigation." This provision applies only if the person is already lawfully stopped, detained or arrested in connection with the enforcement of some law other than immigration law. Furthermore, law enforcement officers specifically are directed not to "consider race, color or national origin . . . except to the extent permitted by the United States or Arizona Constitution." Under the Act, the immigration status of an alien is determined by (1) "a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status;" or (2) an agent of Immigration and Customs Enforcement ("ICE").

Applicable Law and Discussion

A prior opinion of this Office addresses whether state and local officers in Virginia have the authority to detain and arrest individuals who have violated a criminal law of the United States, including a criminal violation of the immigration laws of the United States. The opinion concluded that law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws. Indeed, it would be most surprising if state and local officers lacked the authority, where appropriate, to arrest individuals suspected of committing federal crimes such as bank robbery, kidnapping or terrorism. State and local officers are not required to stand idly by and allow such criminals to proceed with impunity. The same holds true with criminal violations of the immigration laws.

Due to the uncertainty in the law, however, the 2007 opinion counseled against arrests for civil violations of federal immigration laws. That uncertainty is present on two levels. As a matter of state law, the authority of police officers to arrest for civil violations is restricted by statute. Sheriffs are not so limited, but neither does the Code expressly authorize sheriffs to make arrests for civil violations of federal immigration laws. The 2007 opinion further noted that federal law is unclear regarding the authority of state law enforcement to arrest for civil violations of immigration laws. The opinion concluded that, absent an agreement between the federal government and a state or local law enforcement agency authorizing arrests for civil, as opposed to criminal, violations of immigration laws, known as a § 287(g) agreement, state officers should refrain from making arrests for civil violations until the law is clarified. There has been no clarification or change in the law since that opinion was issued that would suggest a different conclusion at the present time.

The previous opinion, which dealt with the authority of state and local officers to arrest for federal immigration violations, does not answer your more specific question: whether Virginia officers have the legal authority to inquire about the legal status of persons who are stopped or arrested in a manner similar to that contemplated by the Arizona Act. The new Arizona law does not purport to grant new powers to law enforcement officers in Arizona; nor does it suggest the absence of authority by police officers in Virginia. The Arizona law expressly leaves the determination of an alien's immigration status to ICE or to a federally authorized law enforcement officer. Virginia law enforcement officers have the authority to make the same inquiries as those contemplated by the new Arizona law. So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime. Furthermore, the United States Supreme Court has found that so long as the questioning does not prolong a lawful detention, police may ask questions about immigration status.

It also should be noted that under Article 36 of the Vienna Convention on Consular Relations, state and local officers are required to advise foreign nationals of their right to speak with a consular officer when those persons are arrested and held for longer than a short period of time. It is difficult, if not impossible, to effectively provide that advice, mandated by treaty, without making an inquiry into the nationality of a person who is in custody.

You also ask about the authority of state park personnel to conduct inquiries about immigration status. The authority conferred on the Director of the Department of Conservation and Recreation does not include the general authority granted to police officers to prevent and detect crime, apprehend criminals, safeguard life and property, preserve peace, or to enforce state and local laws, regulations and ordinances. On the other hand, conservation officers, appointed by the Director of the Department of Conservation and Recreation, are "law enforcement officers" and are given the authority "to enforce the laws of the Commonwealth and the regulations of the Department." These officers can, like local law enforcement officers and officers of the State Police, arrest for "any crime" committed in their presence or for felonies not committed in their presence. Nothing in Virginia or United States law prohibits conservation officers from inquiring about criminal violations of the immigration laws and, where appropriate, making an arrest.

Local zoning officials, however, are not vested with the same general authority to investigate and enforce violations of the criminal laws. Zoning ordinances are designed to promote the health, safety, convenience or general welfare of the public and to plan for the future development of communities. Zoning ordinances, moreover, are civil in nature and carry civil penalties. Persons who refuse to abate a violation are subject to only misdemeanor punishment. In addition, certain cities may rely on volunteers to enforce zoning requirements, further demonstrating the generally civil nature of zoning enforcement. Therefore, local zoning officials lack the authority to investigate criminal violations of federal immigration statutes and do not possess the authority to arrest for such violations. Of course, persons tasked with zoning enforcement can, like any responsible citizen, report to the proper authorities any suspected violations of the law, including immigration violations, that they encounter while performing their duties.

Conclusion

Accordingly, it is my opinion that Virginia law enforcement officers, including conservation officers, may, like Arizona police officers, inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General