Are the City Council and Sheriff Casey Talking Past Each Other About ICE and Immigration?
Why Alexandria needs a different conversation about ICE and immigration
A Communications Breakdown
In Alexandria’s widespread anger and disappointment about the brutal tactics of U.S Customs and Immigration Enforcement (ICE) personnel in carrying out the Trump Administration’s mass deportations, the City Council and Alexandria Sheriff Sean Casey are miscommunicating about fundamental matters.
On November 12, the Council issued a statement that said, “... we call upon the Sheriff to cease his transfer of persons in his custody in response to ICE administrative detainers and warrants. We ask that he join the Sheriffs in Arlington and Fairfax who only complete transfers in compliance with judicial warrants.”
The Council also said, “We do not allege that the Sheriff’s practice is unconstitutional though we note it is voluntary.” The Council’s full statement is viewable
In contrast, the Alexandria Sheriff’s Office Statement Regarding ICE on the city’s website states, under Sheriff’s Policy and Practice:
• We do not comply with ICE detainers by holding any inmate past their release date.
• We do not permit ICE to assume custody of an inmate based on an ICE detainer.
• We do not allow ICE to take custody of an inmate without a federal arrest warrant.
These public statements by the Council and the Sheriff seem inconsistent. Either, as the Council says, the Sheriff complies with ICE detainers and warrants or, as the Sheriff says, he does not.
What follows explains, in a moderately nerdy way, what the Sheriff is legally compelled to do, the importance of the distinction between ICE detainers and ICE administrative warrants, and what is elective or optional for the Sheriff. There are also some respectful suggestions for a better way forward.
Why the Sheriff is Part of the Immigration System
Virginia law requires that sheriffs throughout the commonwealth ascertain the citizenship of persons committed to their custody. Section 53.1-218 of the Code of Virginia states that, “…the director, sheriff or other officer in charge of such facility shall inquire as to whether the person (i) was born in a country other the United States and (ii) is a citizen of a country other than the United States.” The statute also requires a sheriff to make, “…an immigration alien query to the Law Enforcement Support Center of the U.S. Immigration and Enforcement for any person committed to the facility for commission of a felony” who is a non-U.S. citizen.
How an ICE Detainer Differs from an Administrative Warrant
When ICE issues, on Department of Homeland Security Form 247 an Immigration Detainer-Notice of Action, it requests a law enforcement agency to maintain custody of a person for a period not to exceed 48 hours, excluding Saturdays, Sundays and holidays beyond the time the person would have otherwise been released.
An ICE detainer (DHS Form 247) can be seen
In a 2015 Opinion of the Attorney General, then Virginia Attorney General Mark Herring wrote, “It is my opinion that an ICE detainer is merely a request. It 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 state or local custody.”
In short, an ICE detainer is a notice which, according to Sheriff Casey’s statement on the city’s website, will not cause him to hold “any inmate past their release date.”
ICE also issues, on DHS Form 200, a Warrant for Arrest of an Alien, which commands “any immigration officer” authorized to serve warrants of arrest for immigration violations to, “…take into custody for removal proceedings under the Immigration and Nationality Act” the person named. ICE’s authority to issue a Warrant for Arrest of Alien, also called an administrative warrant, derives from the Immigration and Nationality Act and regulations issued pursuant to that statute.
An ICE administrative warrant (DHS Form 200) can be seen
The National Immigration Law Center and other authorities confirm that ICE administrative warrants are enforceable according to their terms—such warrants authorize a seizure or arrest of a person, but not a premises search. In the interest of brevity, instead of reciting citations to statutory and regulatory sources here for ICE’s authority to issue administrative warrants such references will be provided in response to requests.
How an Administrative Warrant Differs from a Judicial Warrant
ICE administrative warrants differ from judicial warrants issued in criminal cases because they do not require prior authorization by a judge or magistrate. ICE administrative warrants require an authorized immigration official to establish that “there is probable cause to believe” that the person identified in the warrant is subject to removal. ICE administrative warrants (DHS Form 200) say nothing about authority to search a premises which is why ICE enforcement often occurs in outdoor settings—construction sites, parking lots, etc.
Sheriff Casey’s statement on the city’s website, “We do not allow ICE to take custody of an inmate without a federal arrest warrant” is accurate, but it does not say that a “federal arrest warrant” can be either a judicial warrant or an ICE Warrant for Arrest of an Alien on DHS Form 200.
The Council’s request to Sheriff Casey to “…cease his transfer of persons in his custody in response to ICE administrative detainers and warrants” is (i) unnecessary with respect to ICE detainers on DHS Form 247 which Sheriff Casey sees as a request, not a mandate, and (ii) problematic as to ICE administrative warrants on DHS Form 200 for which the Sheriff’s compliance is required by federal law.
The Council states, “We recognize that the Sheriff’s Office is an independently elected constitutional office possessing the discretion to determine whether to honor such administrative warrants.” If so, the Council should identify the source of this discretionary authority as to ICE administrative warrants on DHS Form 200.
Optional Pre-Release Date Custody Transfers by the Sheriff to ICE
Section 53.1-220.2 of the Virginia Code, which requires close reading, states:
The Director, sheriff, or other official in charge of the facility in which an alien is incarcerated may, upon receipt of a detainer from U.S. Immigration and Customs Enforcement, transfer custody of the alien to U.S. Immigration and Customs Enforcement no more than five days prior to the date what he would otherwise be released from custody. Upon transfer of custody, notwithstanding any other provision of law, the alien shall receive credit for the number of days remaining before he would otherwise have been released.
Section 53.1-220.2 gives the Sheriff the option to transfer a person in custody prior to their release date. It does not provide a legal basis for the Sheriff to deem all transfers to ICE as optional. Sheriff Casey, according to the November 20 edition of The Alexandria Times, takes the position that the word “may” in the statute refers only to the timing of the transfer, not whether the transfer occurs.
Should Sheriff Casey Require a Judicial Warrant as a Condition of a Transfer of Custody?
The Council’s statement says, “We ask that he [Casey] join the Sheriffs in Arlington and Fairfax who only complete transfers in accordance with judicial transfers.”
The community protest in Alexandria about ICE’s enforcement activities has been intense and effective. Should that well-intentioned and well-founded protest, as reflected in the Council’s statement, cause Sheriff Casey to decline to execute custody transfers sought by federal officials acting under specifically granted authority in federal law and regulations reflected in ICE administrative warrants on DHS Form 200?
If the answer is “yes,” additional questions arise. For example: If Sheriff Casey should deny the clearly delineated authority in federal law for ICE administrative warrants will that materially diminish ICE’s activity in the city or will it make the city a target for ICE? Or, will ICE simply take the extra step of applying for judicial warrants? If DHS sues, or seeks to punish, localities that require judicial warrants for immigration enforcement is Alexandria prepared for those consequences?
One Way to Help Immigrant Alexandrians
This brief analysis is not intended to overlook or minimize the difficulties that Alexandria’s immigrant community faces because of ICE’s tactics. Critically, there are ways to help immigrants deal with ICE personnel. For example, there has been widespread distribution, particularly in California, of “red cards” developed by the Immigrant Legal Resource Center that help immigrants know and assert their rights.
Here is a red card:
A Few Final Thoughts
Sheriff Casey’s opinion of ICE’s tactics and practices probably matches that of the protesters and the Council. As countless media reports confirm, ICE’s day-to-day enforcement procedures are despicable. This is especially true because of ICE’s unreasonable use of force.
A central strength, possibly the genius, of the Civil Rights movement of the 1950’s and 1960’s was the respect that the protesters, lead by Dr. Martin Luther King, showed for the rule of law. Respect for the rule of law is the ultimate high ground and it should guide our thinking in this situation. The proposition that Sheriff Casey has full discretion to decline to cooperate with ICE—that his actions are entirely “voluntary”—lacks legal authority. Unpleasant as the fact is, ICE’s authority to issue Warrants for Arrest on DHS Form 200 is clear and traceable to its sources in federal statutes and regulations.
Sheriff Casey’s authority to decline the early release to ICE of persons in his custody is clearly defined and he should refrain from doing so. Inmates should be released on their release dates. If ICE personnel miss a release date, that is not Sheriff Casey’s, or Alexandria’s, problem. In short, Sheriff Casey should give ICE the cooperation it is due, but only that which is due and no more.
For the Council to deem Sheriff Casey’s actions “voluntary,” without more, does not enhance the public’s understanding. For Sheriff Casey to say that he is “following the law,” without more, provides minimal information.
The majestic Fourth Amendment to the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
ICE’s immigration enforcement involves seizing persons within the meaning of the Fourth Amendment. Sheriff Casey is a local elected official with mandated immigration responsibilities, and thus a logical focus for protests. The more powerful protest would occur if the Council and Sheriff Casey convened a working group to develop a comprehensive joint statement condemning ICE’s conduct as a massive and continuing Fourth Amendment violation.
In summary, Alexandria can do better by exercising its First Amendment rights as a community to protest ICE’s unconstitutional behavior. At the very least, the debate over how Sheriff Casey responds to ICE enforcement should be reframed and conducted with more light and less heat.
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You said that refusing custody transfers in response to administrative warrants is “problematic as to ICE administrative warrants on DHS Form 200 for which the Sheriff’s compliance is required by federal law.” Could you point to an actual statute that compels local assistance in executing civil immigration warrants? And are you suggesting that both ICE administrative warrants and judicial warrants impose an equal legal duty on local LEAs? As far as I’m aware, it doesn’t violate federal law if local officials decline to assist/transfer custody based on administrative warrants. ICE administrative warrants only direct the actions of ICE agents. Federal authority does not automatically create local agency obligations.
It also seems pretty dangerous to conflate administrative warrants with judicial warrants, since that would essentially require local LEAs to act on executive decisions that are never reviewed by judges. Isn’t preventing this literally why judicial warrants exist?
- Fairfax has transferred many fewer people than Alexandria. We should follow their example.
- The law is not all bright lines and clear boundaries. The Sheriff can facilitate release on a release date as quickly as possible and thereby let the person go. Instead he is holding the person all day on the "release date" to give ICE a chance to get them. If he instead facilitated their release, he would be disobeying the detainer (as everyone agrees he is allowed to do) and would avoid disobeying a warrant (because the person isn't in the jail anymore).
- In public, such as at a Del Ray Citizen's Association meeting, Casey has said he will not follow the Fairfax example, citing an example of a person released who later committed a crime. The idea that we should maximize incarceration so as to avoid crime is the logic of mass incarceration. This is why the USA, with 4% of the world's population, has 20% of the world's prisoners. Mass incarceration damages communities and is measurably racist. Alexandria, like all communities, should oppose mass incarceration.