For Release: August 3, 2010
For media inquiries only, contact: Brian J. Gottstein
Email: bgottstein@oag.state.va.us (best
contact method)
Phone: 804-786-5874
Statement on the official opinion that Virginia law enforcement officers may inquire into the immigration status of persons stopped or arrested
RICHMOND (August 3, 2010) – The Office of the Attorney General’s statement on the Marshall opinion:
The official opinion that Virginia law enforcement officers may inquire into the immigration status of persons stopped or arrested simply declares what is existing law. In the context of a legal law enforcement stop or arrest, there is no legal distinction between immigration crimes and any other crime. What a law enforcement officer can and cannot ask in a citizen encounter is the same whether the underlying concern is an immigration violation or a bank robbery.
Settled legal principles
The law does not distinguish between criminal violations of immigration law versus violations of any other criminal law. Crime is crime. As a matter of Fourth Amendment law, it is settled that:
- A police officer can approach anyone and ask him or her questions. The officer cannot detain that person unless the officer has "reasonable articulable suspicion" or probable cause that a crime has been committed. The person approached can choose to answer or not answer the questions.
- When a police officer has "reasonable articulable suspicion," the officer can briefly detain a suspect and investigate whether a crime has occurred. If the officer has probable cause to believe a crime has occurred, the officer can make an arrest.
These scenarios are true whether the crime is bank robbery, murder, trespass, or criminal violations of immigration laws. The legal framework does not change just because the crime happens to be an immigration-related crime.
Although immigration is politically controversial, the legal principles discussed in the opinion are a matter of settled law and do not break any new legal ground.
What Delegate Robert Marshall asked the Attorney General’s Office
The question from Delegate Marshall was (1) whether Virginia officers have the legal authority to perform a “background check into the legal presence status of persons in a vehicle that is stopped by police or in similar circumstances as persons are being questioned in Arizona under their new Immigration Law;” and (2) if Virginia law enforcement officers do have this authority under current Virginia statutes, would those statutes also apply to zoning officers in counties and cities, and state park administrators.
Our response
(a) As we noted in 2007, police can arrest people for criminal violations but, because the law is not clear, it is not advisable to arrest for civil infractions.
(b) We noted that police when police have reasonable articulable suspicion to believe a crime has been committed or probable cause is present, police can inquire about that criminal violation – whether the crime is a violation of immigration laws or some other crime.
(c) We said that when police have done a lawful traffic stop, police can ask about immigration status so long as that does not prolong the length of the stop. The U.S. Supreme Court expressly has said that this is permissible.
(d) We also noted that when persons are in more prolonged state custody (a traffic stop would not qualify), the Vienna Convention on Consular Relations requires an inquiry into citizenship.
(e) Finally, we noted that conservation officers do have the authority to investigate crimes (including – where appropriate – immigration violations), but zoning officers do not.
Does this usurp federal authority?
This does not usurp federal authority, because Congress created by design a cooperative federal-state immigration enforcement process. Some aspects of immigration law are reserved to federal authorities, while some are joint federal-state efforts. With respect to crimes, Virginia routinely cooperates with the federal government on matters of immigration enforcement.
The Supreme Court of California noted (correctly) in 2009 that:
“While it is well settled that only the federal government may regulate the border and establish rules governing who may enter and who may stay, equally clear is that Congress has in its immigration enactments embraced a model of collaborative federalism under which states and localities may assist in the enforcement of federal immigration policy.” In re Jose C., 198 P.3d 1087, 1091 (Cal. 2009).
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