I write in response to Sheriff Lawhorne’s Letter to the Editor (“Sheriff’s Office and Due Process”). We have met with Sheriff Lawhorne twice to discuss his office’s collaboration with ICE immigration enforcement. We do not doubt his commitment to due process and making the right decision. And we commend him for ending the practice of holding immigrants who have finished serving their criminal sentences, and reducing the time his jail will hold immigrants who have been ordered released on bond. Sheriff Lawhorne has described these meaningful changes as a “first step.”
So what should the next steps be? Given ICE’s current overaggressive enforcement and rampant constitutional violations, it is important to distinguish between those things the law actually requires of the Sheriff’s office in regards to collaboration with ICE, and those things the law merely allows the Sheriff to do or not do, at his discretion. The jail-to-deportation pipeline in Alexandria consists of five steps:
Step one: When arrestees are booked into the Alexandria jail, their citizenship status is entered into a statewide database, to which ICE has access. This is the only step in the entire pipeline that is mandatory under state law.
Step two: Because the database only tells ICE whether arrestees are foreign citizens, not whether they have legal status, ICE generally interviews them over the phone to get them to confess that they are undocumented. Of course, ICE has no special power to require anyone to participate in these interviews.
In many jails across the country, including at least one in Virginia, inmates are given a form in their native language advising them that they may accept or decline ICE’s request for an interview, that they have the right to speak with a lawyer prior to any ICE interview, and allowing them to check a box indicating whether or not they wish to speak with ICE.
In the Alexandria jail, however, inmates are not advised of their right to decline an ICE interview and are simply made available to ICE officers over the phone. Inevitably, most undocumented immigrants confess their lack of legal status, giving the ICE officer all he needs to begin a deportation case. Sheriff Lawhorne can and should inform immigrants in writing that they may decline to speak with ICE officers, or decline to speak with them until after first consulting with a lawyer.
Step three: Once the ICE officer has elicited a confession of undocumented status, the ICE officer — not a judge, just an ordinary ICE officer — will generally send the jail an ICE Form I-200, a copy of which is available at https://www.ice.gov/sites/default/files/documents/Document/2017/I-200_SAMPLE.PDF. Because this form is entitled “Warrant for Arrest of Alien,” this (perhaps by design) creates substantial confusion and leads many sheriffs to believe that they are required to obey it. Title notwithstanding, the legal definition of an arrest warrant is “A warrant issued by a disinterested magistrate after a showing of probable cause[.]” In other words, proper arrest warrants must be issued by judges, not ICE officers. In addition, the I-200 form is not even addressed to Sheriff Lawhorne or his deputies, but rather “To: Any immigration officer[.]” As a federal court in Washington State already recognized, the I-200 form thus places no legal requirements on the Alexandria jail and does not empower the Alexandria jail to hold an inmate beyond when he would otherwise have been released. Given that these forms are not real judicial warrants, nor specifically addressed to the Sheriff, he can and should ignore them entirely.
Step four: If ICE wants to pick up an immigrant from the Alexandria jail, they have to get there before he is released, unless the jail agrees to hold him for ICE. Release dates and times are not publicly available information, especially for individuals who are arrested and then quickly released on bond. The Alexandria jail has a practice of calling ICE to advise them as to when immigrants will be released. These “courtesy calls” to ICE are entirely voluntary, there is no law that requires them, and Sheriff Lawhorne can and should put an end to them.
Step five: Individuals charged with the most serious crimes are held in jail for trial, and those convicted of violent crimes and felonies are sentenced to a term of incarceration. The more serious the crime, the longer the sentence. ICE will manage to pick them up. But many individuals who are charged with low-level crimes are quickly released on bond or with an order to appear for a court date, and will spend only a few hours in the jail — often late at night or on the weekend. ICE simply would not make it to the jail in time to detain them, if the Sheriff did not hold those individuals longer just to facilitate ICE pickups.
This is unfair: immigrants arrested and then allowed release on bail, or convicted of crimes so minor that a state judge orders them released on a sentence of time served, should be allowed to walk out the front door of the jail, as would any U.S. citizen. And given that (as explained above) the I-200 ‘warrant’ does not give Sheriff Lawhorne the power to detain, it is arguably illegal to do so. Any legality it might have stems from an Inter-Governmental Agreement (IGA), which Sheriff Lawhorne concedes he has the discretion to amend or end at his will. Sheriff Lawhorne can end the voluntary practice of holding immigrant detainees past their state-law release dates. Just as he has ended this practice for post-trial inmates, he should also end this practice for pretrial inmates.
In addition to all of the above, Alexandria is holding other immigrants in jail solely because they lack legal status in the United States. The Alexandria jail also rents beds to ICE on a short-term basis to hold immigrants arrested by ICE anywhere in DC or Virginia, the vast majority of whom are not charged with any criminal immigration violation. By providing bedspace to ICE to hold civil immigration detainees, the Alexandria jail enables ICE to detain more immigrants who might otherwise have to be released on bond, a GPS ankle monitor, or a promise to appear for their next court date. These voluntary bed rentals are made possible only because of the IGA; Sheriff Lawhorne has the discretion to end this practice, and should do so.
The Alexandria Sheriff’s Office has no legitimate interest in facilitating ICE’s civil immigration enforcement, and should end all voluntary steps it currently takes to make ICE’s job easier. None of the changes we suggest are in violation of any state or federal law, and are not designed to actively frustrate ICE enforcement, but rather would simply end voluntary practices that facilitate ICE enforcement. Accordingly, these changes would not turn Alexandria into a “sanctuary city”; rather, they would make Alexandria neutral vis-à-vis ICE.
The argument that “we have always done things this way” holds no validity in a new era of constant and well-documented ICE abuses. Likewise, that Fairfax and Arlington also engage in many of these practices is no excuse: Alexandria should be a leader in ending all forms of voluntary facilitation of ICE enforcement and set the example for neighboring jurisdictions. Our immigrant neighbors deserve no less.
Legal Director, Immigrant Advocacy Program
Legal Aid Justice Center