by Dick Hall-Sizemore
Governor Youngkin is talking tough on immigration again, but he is not backing it up.
In his State of the State address, he declared, “If someone is in this country illegally, and they commit a violent crime, they should get a one-way ticket back to where they came from. This should not be controversial.”
It is not controversial. I have not heard of anyone objecting to deporting an illegal immigrant who committed a violent crime. (By the way, I see the Governor is careful to use the correct pronoun.)
Then he goes on to declare, “Virginia is not a sanctuary state. If localities have ‘sanctuary city’ policies and refuse to cooperate with ICE, they should lose state funding—full stop.”
He has made this threat before. How is he backing it up?
First of all, does he mean all state funding? He did not specify. Therefore, if his statement were taken literally, such a locality would lose all its K-12 funding, highway funding, health department funding, etc.
However, let’s give the Governor the benefit of the doubt and assume that he really meant law enforcement funding.
The state funds local law enforcement through the 599 funds, administered by the Department of Criminal Justice Services (DCJS) and by paying for sheriffs’ deputies and offsetting some costs of operating jails. These latter two sources of funding are administered by the Compensation Board.
In the budget bill submitted by the Governor, there is no language requiring DCJS to stop distributing funds to any county, city, or town that refuses to cooperate with the U.S. Immigration and Customs Enforcement (ICE). Furthermore, there is no language instructing the Comp Board to cut off funding for sheriffs’ offices or jails if they refuse to cooperate with ICE. Finally, there is no general language in the back of the budget bill that would accomplish this objective.
The other means that could be used to implement this policy declaration of the Governor would be separate legislation. There is legislation, HB 2389, introduced by Del. Geary Higgins (R-Loudoun). It is a simple bill. It would a new section that states:
“No locality shall adopt any ordinance, procedure, or policy intended to restrict the enforcement of federal immigration laws.”
This is not quite what the Governor said should be done. First of all, there is no mention of any penalty for noncompliance, such as loss of funding. Second, the proposed Code language would prohibit a locality from restricting ICE. But the Governor said that localities should cooperate with ICE. Under the provisions of the proposed language, a locality could choose not to cooperate while not doing anything to restrict ICE from going about its activities. It is not clear that this provision would have the impact that the Governor talked about in his speech.
The proposed bill does have another provision. Currently, state law authorizes a jail to honor a detainer request from ICE and transfer custody of an illegal immigrant to ICE no more than five days prior to when he would have been released. The proposed legislation would change “may” to “shall”, therefore mandating the honoring of an ICE detainer. This would make a difference, particularly with Fairfax County. The county has been in the forefront of the issue involving ICE detainers. Backed up by opinions of two Attorney Generals, including the present one, Fairfax County takes the position that an ICE detainer is not a binding legal document, merely a request, and will honor only warrants issued by federal magistrates. If the proposed legislation were enacted, the county sheriff would be required to transfer custody to ICE of any illegal immigrant for which ICE had issued a detainer if the ICE officer shows up within five days of the scheduled release of the prisoner. The law would not ensure any “cooperation” beyond transferring custody. It is not clear that it would have a great effect.
In summary, not much cooperation required and no financial penalties as a result of non-cooperation.
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