Cuccinelli: Va. police can ask about immigration status
Updated, 5:29 p.m.: Law enforcement officials in Virginia can inquire into immigration status of those they stop or arrest--just as they can under a controversial new immigration law in Arizona--Virginia Attorney General Ken Cuccinelli has ruled in an official legal opinion.
Written in response to a request for legal advice from Del. Bob Marshall (R-Prince William), Cuccinelli ruled that police officers and other legal authorities can look into the immigration status of anyone stopped or arrested.
A 2008 Virginia law requires that law enforcement check the immigration status of anyone taken into custody on suspicion of having committed a separate crime. Cuccinelli's opinion could expand such inquiries to those who have been legally stopped by law enforcement, for instance those pulled over for a traffic violation or at a police checkpoint.
(Coverage of the Arizona law)
Cuccinelli writes in the July 30 opinion that while local law enforcement have the ability to arrest those they suspect of committing criminal violations of immigration laws but not those they believe have violated civil immigration statutes. But he says inquiring into status is different than arresting for a violation and that law enforcement can inquire. While it is a crime to illegally cross the border, many other immigration violations are civil offense, like overstaying a valid visa.
"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," he writes.
In Virginia, official opinions of the attorney general are considered law unless a judge disagrees with the legal analysis after an opinion has been challenged in court.
Cuccinelli's opinion is legal guidance for local law enforcement and does not require them to act. But those on both sides of the decision believe that it provides law enforcement the legal authority to begin checking the status of immigrants immediately, if they wish.
The opinion is sure to widen a debate over illegal immigration in Virginia, where activists have said they wish to enact similar legislation to that adopted in Arizona. A federal judge has blocked key provisions of the Arizona law, including a provision that requires law enforcement to inquire about immigration status of those they have a "reasonable suspicion" might be in the country illegally. Cuccinelli filed an amicus brief supporting Arizona's position over that state's law.
(Profile of Cuccinelli)
Cuccinelli's opinion was criticized by Claire Guthrie Gastanaga, a former chief deputy attorney general of Virginia and advocate for pro-immigration organizations.
"The Attorney General has done Virginians a disservice by crafting a result oriented 'activist judge' opinion that seeks to serve his personal political agenda rather than objectively interpret the law. The opinion closely tracks the advocacy position that the AG took in his amicus brief in the Arizona case -- a position rejected by the federal judge. The Attorney General's stance largely mirrors the position of advocates for organizations, like [the Federation of American Immigration Reform], seeking to reduce or prohibit all immigration," she said in a statement.
FAIR representatives have been working with Virginia activists who want to adopt a law mirroring Arizona's.
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