Can Virginia local police arrest someone solely for a civil immigration violation, and what risks come with signing a § 287(g) agreement with ICE?

Plain-English summary

Senator Surovell and Delegate Lopez asked the AG to revisit two earlier AG opinions on local police authority to make immigration-related arrests. The 2007 opinion (AG McDonnell) and the 2010 opinion (AG Cuccinelli) had concluded that local officers in Virginia should refrain from arresting people for civil immigration violations outside the scope of a formal federal agreement, because the federal case law at the time was unclear. The legislators asked whether subsequent federal decisions changed the analysis and whether anything in Virginia law conflicted with § 287(g) agreements between localities and ICE.

Attorney General Mark R. Herring concluded that the federal landscape had grown clearer in the direction of the earlier opinions, not against them. Arizona v. United States, 567 U.S. 387 (2012), held that an Arizona statute giving local officers unilateral authority to arrest people on suspected civil immigration violations was preempted by federal law. The Supreme Court emphasized that "federal law specifies [only] limited circumstances in which state officers may perform the functions of an immigration officer," and "no coherent understanding" of cooperation includes "the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government."

The Fourth Circuit then applied Arizona in Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451 (4th Cir. 2013). Even though the Frederick County Sheriff's Office had a § 287(g) agreement with ICE, the deputies who arrested Ms. Santos had not been "trained or authorized to participate in immigration enforcement." The Fourth Circuit held that they violated the Fourth Amendment by detaining and arresting her on an ICE civil warrant "absent express direction or authorization by federal statute or federal officials." So the 2007 and 2010 advice is reinforced by Arizona and Santos: no unilateral local arrests for civil immigration violations.

On § 287(g) agreements themselves, the AG said no Virginia statute blocks implementation. Section 1357(g) itself requires participants to act "consistently with State and local law." Section 19.2-120.1 of the Virginia Code creates a rebuttable presumption against bail when the arrestee has been ICE-identified as unlawfully present and is charged with certain state crimes; that is a presumption, not a categorical bar, and judges retain discretion. Judges are not parties to § 287(g) agreements. The AG also reiterated a prior conclusion from 2015 Op. Va. Att'y Gen. 1 that an ICE detainer is "merely a request" and "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."

Questions about the broader liability profile of § 287(g) participation, including civil rights exposure, were declined under the long-standing rule that AG opinions do not address pure policy or fact-dependent questions.

Currency note

This opinion was issued in 2019. 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.

Immigration enforcement law has moved significantly since 2019. The 2020 Virginia General Assembly enacted SB 1196 and other measures affecting state and local cooperation with federal immigration enforcement. Federal § 287(g) program participation has expanded and contracted under different administrations. ICE detainer practices have been the subject of substantial litigation. Anyone relying on this analysis should consult current Virginia statutes, current ICE policies, and current Fourth Circuit case law.

Background and statutory framework

Federal immigration law is a comprehensive scheme that vests immigration enforcement primarily in the federal government. The U.S. Supreme Court emphasized in Arizona v. United States, 567 U.S. 387, 408 (2012), that "federal law specifies [only] limited circumstances in which state officers may perform the functions of an immigration officer." Section 287(g) of the Immigration and Nationality Act (codified at 8 U.S.C. § 1357(g)) is the statutory vehicle for those limited circumstances. It allows the U.S. Attorney General (function delegated to the Secretary of Homeland Security) to enter voluntary agreements with state or local governments authorizing specially trained local officers to "carry out [federal immigration officer] functions ... in relation to the investigation, apprehension, or detention of aliens in the United States" at the locality's expense and "consistent with State and local law."

Two AG opinions had earlier concluded local officers should refrain from arresting for civil immigration violations outside such agreements. The 2007 opinion (AG McDonnell) and the 2010 opinion (AG Cuccinelli) flagged ambiguity in federal appellate case law and lack of clear state authorization. The 2012 Supreme Court decision in Arizona resolved the ambiguity in the direction the AGs had counseled. Arizona invalidated as preempted an Arizona statute giving local officers unilateral arrest authority for suspected civil immigration violations.

The Fourth Circuit applied Arizona in Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451 (4th Cir. 2013). Santos alleged that Frederick County deputies violated her Fourth Amendment rights by detaining her on the basis of an ICE civil warrant. The deputies had no § 287(g) training or authorization. The Fourth Circuit agreed: under Arizona, local officers "may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law" "absent express direction or authorization by federal statute or federal officials." That ruling is controlling in the Fourth Circuit, which includes Virginia.

A critical distinction: Arizona and Santos govern civil immigration violations. Criminal violations of federal immigration law are analyzed differently (Santos, 725 F.3d at 464).

On § 287(g) implementation under Virginia law, the AG identified no state-law conflicts. Section 19.2-120.1 creates a rebuttable presumption against bail when (i) the arrestee has been identified by ICE as unlawfully present and (ii) is charged with violation of certain state crimes. The presumption is rebuttable and leaves the judge with discretion; the statute does not categorically bar release. Judges are not parties to § 287(g) agreements; the agreements are between the federal government and the locality.

ICE detainers are not equivalent to bars on release. The AG reaffirmed 2015 Op. Va. Att'y Gen. 1 (analyzing whether ICE detainers are bars to release from state custody): "an ICE detainer is merely a request" that "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."

The AG declined to address the broader risk/liability inquiry. The questions about civil rights exposure and litigation risk from § 287(g) participation depend on policy choices and case-specific facts, both of which lie outside the AG's advisory role.

Common questions

Q: Can Virginia local police arrest someone solely for a civil immigration violation?
A: The AG concluded no, absent express federal authorization or direction. Arizona v. United States (2012) and Santos v. Frederick County (4th Cir. 2013) reinforced that conclusion.

Q: Does a § 287(g) agreement give all of a sheriff's deputies authority to enforce civil immigration law?
A: No. Only deputies who have been specifically trained and authorized under the agreement can carry out federal immigration functions. Santos held that untrained deputies in a § 287(g) jurisdiction acted without authority.

Q: Do Virginia laws prevent a locality from signing a § 287(g) agreement?
A: The AG was aware of none. Section 1357(g) requires participants to act consistently with state and local law. Section 19.2-120.1 of the Virginia Code is a rebuttable bail presumption, not a bar to § 287(g) participation.

Q: Must a Virginia jail hold someone past their release date because of an ICE detainer?
A: No. The AG concluded in 2015 (and reaffirmed here) that an ICE detainer is a request, not an obligation, and does not authorize prolonged detention.

Q: What's the difference between civil and criminal immigration violations for these purposes?
A: Civil immigration violations (like being removable) cannot be the sole basis for local arrest. Criminal immigration violations (like illegal reentry, 8 U.S.C. § 1326) are analyzed differently. Santos draws the line explicitly.

Q: What are the risks of a § 287(g) agreement for a locality?
A: The AG declined to opine. The risk profile depends on operational choices, training quality, supervision, and fact-specific scenarios that produce civil rights claims under 42 U.S.C. § 1983.

Citations and references

Virginia statutes:

• Va. Code Ann. § 19.2-120.1 (bail presumption based on ICE identification)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Federal statutes:

• 8 U.S.C. § 1357(g) (INA § 287(g))
• 8 U.S.C. § 1103(a)(10)
• 42 U.S.C. § 1983 (civil rights remedy)

Cases:

• Arizona v. United States, 567 U.S. 387 (2012)
• Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451 (4th Cir. 2013), cert. denied, 134 S. Ct. 1541 (2014)

Prior AG opinions:

• 2007 Op. Va. Att'y Gen. 108
• 2010 Op. Va. Att'y Gen. 151
• 2015 Op. Va. Att'y Gen. 1 (ICE detainers)
• 2009 Op. Va. Att'y Gen. 138
• 2010 Op. Va. Att'y Gen. 56

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2019/16-045-Surovell-Lopez-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

April 12, 2019

The Honorable Scott A. Surovell
Member, Senate of Virginia
Post Office Box 289
Mt. Vernon, Virginia 22121

The Honorable Alfonso Lopez
Member, House of Delegates
Post Office Box 40366
Arlington, Virginia 22204

Gentlemen:

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 reference an official advisory opinion issued by former Attorney General Robert McDonnell on October 15, 2007 ("2007 Opinion"), which advised that local law enforcement officers in Virginia should refrain from making arrests for civil violations of federal immigration law "outside of the scope of an agreement with federal authorities" because "federal appellate courts [were] ambiguous regarding a state's authority to arrest individuals for civil violations of federal immigration law."[1] You also reference an official advisory opinion issued by former Attorney General Kenneth Cuccinelli on July 30, 2010 ("2010 Opinion"), which states that there had been no change in the law since the 2007 Opinion and concludes that local law enforcement officers in Virginia should continue to refrain from making arrests for civil violations of federal immigration law, absent an agreement with federal authorities.[2] You ask whether there have been any subsequent federal court decisions that may impact this advice from Attorneys General McDonnell and Cuccinelli.

You next ask whether any conflict of laws exist that prohibit the full implementation of § 287(g) agreements in Virginia. Specifically, you ask whether a judge is prohibited from releasing individuals on bail under Virginia Code § 19.2-120.1 in jurisdictions where such agreements exist. You further ask whether localities that have entered into § 287(g) agreements are at a greater risk of violating an individual's civil rights and have greater exposure to civil litigation. Finally, you ask generally what liabilities and risks localities face by enforcing federal civil immigration law under § 287(g) agreements.

Applicable Law and Discussion

I. Federal Statutory Background

In accordance with the federal government's broad authority over immigration, Congress has enacted a comprehensive system of statutes addressing most matters relating to immigration, including provisions governing the enforcement of immigration law.[3] Among these statutes are provisions establishing "limited circumstances in which state officers may perform the functions of an immigration officer."[4] Specifically, § 287(g) of the Immigration and Nationality Act provides that the United States Attorney General may delegate certain immigration enforcement functions to officers or employees of a State, or a political subdivision of a State, by entering into voluntary, formal agreements that authorize specially-trained law enforcement officers to perform the functions of a federal immigration officer.[5] Under these agreements, commonly known as "§ 287(g) agreements," a state or local officer or employee is authorized to carry out the functions of a federal immigration officer "in relation to the investigation, apprehension, or detention of aliens in the United States ... [,] at the expense of the [agreeing] State or political subdivision and to the extent consistent with State and local law."[6]

II. Local law enforcement officers do not have sufficient authority to arrest individuals for civil immigration violations in the absence of express federal authorization.

Your first question is whether any federal court decisions alter the conclusion in the 2007 and 2010 Opinions that local law enforcement officers in Virginia should refrain from arresting individuals for civil immigration violations outside the scope of an agreement with federal authorities.[7] Since then, both the United States Supreme Court and the United States Court of Appeals for the Fourth Circuit have issued opinions establishing that local law enforcement officers may not arrest individuals for civil immigration violations in the absence of express federal authorization.[8]

In 2012, the United States Supreme Court decided Arizona v. United States,[9] in which it ruled that an Arizona law giving state law enforcement officers the unilateral authority to arrest individuals without a warrant on the basis of suspected civil immigration violations was preempted by federal law.[10] The Court stated that immigration policy remains the sole domain of the federal government, and that "federal law specifies [only] limited circumstances in which state officers may perform the functions of an immigration officer."[11] Although state and local officers may "'cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States[,]' .... no coherent understanding of the term ["cooperate"] would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government."[12] Since the U.S. Supreme Court's ruling in Arizona, it is clear that state and local law enforcement officers have no authority to arrest for civil immigration violations in the absence of express federal authorization.

In 2013, the Fourth Circuit applied the U.S. Supreme Court's holding in Arizona in the case of Santos v. Frederick County Board of Supervisors.[13] In Santos, the court addressed a § 1983[14] complaint against the Frederick County (Maryland) Board of Commissioners, the Frederick County Sheriff, and two deputy sheriffs.[15] Santos alleged that her Fourth Amendment rights were violated when she was arrested on an outstanding civil warrant for removal issued by the Department of Immigration and Customs Enforcement ("ICE").[16] After initially engaging in a voluntary encounter with Santos, the deputies prevented Santos from ending the encounter and instructed her to remain seated while they waited for confirmation from ICE that an outstanding ICE warrant for "immediate deportation" was still active.[17] After confirming that the warrant was active, the deputies arrested Santos and transported her to a Maryland detention center.[18] Although the Frederick County Sheriff's Office had entered into a § 287(g) agreement with ICE, the deputies who arrested Santos had not been "trained or authorized to participate in immigration enforcement."[19]

The Fourth Circuit agreed with Santos that her Fourth Amendment rights had been violated because the deputies had seized her without express authorization or direction from ICE.[20] The court based its holding on the rule set forth in Arizona that local law enforcement officers "may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law" "absent express direction or authorization by federal statute or federal officials."[21]

Accordingly, it is my view that the Arizona and Santos cases support the conclusions reached in the 2007 and 2010 Opinions that local law enforcement officers may not arrest individuals for civil immigration violations without express federal authorization or direction.

III. Section 287(g) agreements do not categorically prohibit the release of individuals on bond under Virginia Code § 19.2-120.1 or conflict with other state or local laws.

You next ask whether any conflicting state or local laws exist that would preclude the implementation of a § 287(g) agreement. I am unaware of any such conflicts of laws. Section 1357(g) specifically requires that participants in a § 287(g) agreement should act "consistent[ly] with State and local law."[22]

Additionally, § 19.2-120.1 of the Code of Virginia does not categorically prohibit a judge from releasing individuals on bond in localities where § 287(g) agreements are in place. In fact, judges are not parties to § 287(g) agreements.[23] However, § 19.2-120.1 creates a rebuttable presumption against bail if the arrestee (i) has been identified by ICE as being illegally present in the United States, and (ii) is charged with violation of certain state criminal laws. Thus, a judge has the discretion to determine that the presumption has been rebutted and grant bail.

Moreover, ICE detainers are not bars to release from custody.[24] I have previously advised that "an ICE detainer is merely a request," which "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."[25]

IV. Remaining inquiries involve questions of policy and fact and by long-standing tradition, cannot be addressed.

You ask additional questions regarding risks and liabilities that could arise out of the enforcement of federal immigration laws under § 287(g) agreements, including the risk of violating individuals' civil rights resulting in greater exposure to civil litigation.[26] The answer to these questions is dependent on policy decisions and specific factual scenarios. By long-standing tradition, Attorneys General have declined to render opinions when the request does not involve a question of law[27] or would require additional facts.[28]

Conclusion

For the foregoing reasons, it is my opinion that state and local law enforcement officers may not arrest individuals for civil violations of immigration law absent express federal authorization or direction. It is also my opinion that Virginia statutes do not preclude the implementation of § 287(g) agreements.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

[1] 2007 Op. Va. Att'y Gen. 108, 114.

[2] 2010 Op. Va. Att'y Gen. 151, 152.

[3] See, e.g., Arizona v. United States, 567 U.S. 387, 395 (2012).

[4] Arizona, 567 U.S. at 408 (citing, among other statutes, 8 U.S.C. § 1357(g)(1), § 1103(a)(10)); see also Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451, 463-64 (4th Cir. 2013), cert. denied, 134 S. Ct. 1541 (2014) (citing same federal statutes).

[5] 8 U.S.C. § 1357(g); see generally MICHAEL JOHN GARCIA & KATE M. MANUEL, CONG. RESEARCH SERV., AUTHORITY OF STATE AND LOCAL POLICE TO ENFORCE FEDERAL IMMIGRATION LAW, at 4 & n.18 (2012) (explaining that while the United States Code vests power over these agreements in the Attorney General, the Attorney General has delegated this power to the Secretary of Homeland Security, who oversees U.S. Immigration and Customs Enforcement (ICE)).

[6] 8 U.S.C. § 1357(g)(1); see also Arizona, 567 U.S. at 408-09 (describing agreements between the federal government and state and local governments under 8 U.S.C. § 1357(g)).

[7] Importantly, these Opinions also cite the lack of clear state authorization as another reason to refrain from arresting individuals for civil violations of federal immigration law, in at least certain instances. See 2010 Op. Va. Att'y Gen. 151, 152; 2007 Op. Va. Att'y Gen. 108, 112-14.

[8] A critical distinction must be made between criminal and civil violations of immigration law. See Santos, 725 F.3d at 464 (describing the distinction between criminal and civil immigration violations with respect to enforcement). The focus of your request is on civil violations of federal immigration laws.

[9] 567 U.S. 387 (2012).

[10] Arizona, 567 U.S. at 407-10.

[11] Id. at 408.

[12] Id. at 410.

[13] 725 F.3d 451 (4th Cir. 2013), cert. denied, 134 S. Ct. 1541 (2014).

[14] 42 U.S.C. § 1983 (providing a remedy where any person, acting under color of law, deprives another of the rights, privileges, or immunities secured by the Constitution and laws).

[15] Santos, 725 F.3d at 456.

[16] Id. at 456-57.

[17] Id. at 458, 461-62.

[18] Id. at 458.

[19] Id. at 457.

[20] Id. at 468.

[21] Id. at 465.

[22] 8 U.S.C. § 1357(g)(1) (2006).

[23] See 8 U.S.C. § 1357(g) (§ 287(g) agreements are entered between the Attorney General with a state or any political subdivision of a state).

[24] See 2015 Op. Va. Att'y Gen. 1 (analyzing whether ICE detainers are bars to release from state custody and collecting authorities).

[25] Id. at 11.

[26] There is a voluminous body of law addressing constitutional and tort claims arising out of detaining and arresting individuals for civil violations of immigration law.

[27] 2009 Op. Va. Att'y Gen 138, 141.

[28] 2010 Op. Va. Att'y Gen. 56, 58.