What began as a “matter from the public” during its January meeting has evolved into a major issue for the Albemarle-Charlottesville Regional Jail (ACRJ) Authority Board, and after nearly a year of vigorous debate, a range of proposals, and public meetings filled to overflow, the problem is not yet resolved. At issue is whether the ACRJ should continue its long-standing voluntary policy of alerting federal immigration officials 48 hours prior to the release of certain “detained” undocumented immigrants from the jail.
The notification policy, currently practiced in every jurisdiction in Virginia, helps federal Immigration and Customs Enforcement (ICE) agents take noncitizen individuals from the jail directly into custody for federal immigration review, which local law enforcement officials say is crucial for public safety. “An immigration detainer is issued [by ICE] after probable cause is established that the unlawful citizen has committed a deportable offense,” said Robert Tracci, Commonwealth’s Attorney for Albemarle County, who notes that “most criminal noncitizens taken into custody by ICE have committed serious felony offenses.”
But some local organiztions such as the Legal Aid Justice Center (LAJC), as well as several members of the jail board who represent the city of Charlottesville, want the jail to stop ICE notification, casting the policy as a violation of human rights. “Families are being torn apart and irreparably harmed,” said LAJC attorney Tanishka Cruz during the board’s January meeting, “and cooperating with ICE erodes and undermines community trust. We have a two-tiered system where immigrants are treated differently in the criminal justice system.”
A “detainer” is a request filed by a criminal justice agency (in this case, ICE) asking a jail or prison either to hold a prisoner for the agency or to notify the agency when release of a prisoner is imminent. The ACRJ does not hold individuals past their scheduled release date for ICE, but does comply with requests for notification before release where possible. The ACRJ is a regional jail with an 11-member governing board serving the counties of Albemarle (4 members) and Nelson (3 members) and the city of Charlottesville (4 members).
When a person is brought into the jail and fingerprinted, that information is required by law to be sent through state and national databases, including those of federal immigration enforcement agencies. If the person lacks proof of U.S. citizenship or is wanted by ICE, “then ICE comes to the jail to interview that person to determine whether or not to put a detainer on them,” said ACRJ Superintendent Martin Kumer. While alerting ICE to the presence of noncitizen inmates via fingerprinting is mandatory for the jail, abiding by the detainer request is not.
At the first ACRJ Board meeting of the year on January 11, four attorneys for the LAJC and two citizens spoke during the public comment period in opposition to the jail’s policy regarding ICE detainers, urging the board to abandon the practice. Following the public commentary, Charlottesville City Councilor Wes Bellamy, attending his first meeting as a new ACRJ board member, proposed a moratorium on notifying ICE until a vote could be taken at a later date. Amid questions and requests for information from several board members, a subsequent meeting date was set for two weeks later to vote on continuing the policy.
Though the board then voted 7-3 to maintain the current policy at its January 25 meeting, the ICE notification issue has continued to dominate the board’s agenda ever since. The debate widened as immigrants’ rights activists and concerned members of the public attended subsequent meetings to argue passionately for both sides. The ACRJ’s meeting in a room with a 50-person capacity had to be broadcast on a screen outside the building for overflow crowds. Petitions against the policy were collected from both Charlottesville citizens and CHS students, and an extra ACRJ work session in August convened 20 local and regional officials to discuss the legal and logistical aspects of ICE notification in depth.
After the intense and sometimes rancorous year-long process, the board’s solution may end up relying on an electronic notification system, originally designed for crime victims, that has been in place all along.
A Balanced View
“We are genuinely trying to be balanced in assessing the position that the jail board now finds itself in over an administrative practice, a policy, of voluntarily making a phone call to another federal agency as requested by them on the occasion of an individual being released from the jail,” said Doug Walker, Assistant County Executive and jail board member. Far from the slight gesture it would appear to be, the notification practice has engendered debate over the perceived fairness of the policy, encompassing public safety concerns, the rule of law, the rights of accused noncitizens, and the policy’s consequences for families and communities.
Five high-ranking law enforcement representatives advocate continued ICE notification: the Commonwealth’s Attorneys for Albemarle and Nelson and the Sheriffs for Albemarle, Nelson, and the city of Charlottesville. This group opposes obstructing the enforcement of federal immigration laws, noting that ICE has access to prisoner data unavailable to local agencies, such as crimes committed in other jurisdictions. “Simply terminating pre-release notification for detained individuals will result in their release into Albemarle and surrounding counties without federal immigration review,” said Tracci.
In addition, immigration enforcement officials say that ending notification may lead to greater risk for both law enforcement officers and noncitizens themselves. “A large number of ICE’s targeted enforcement actions occur because jurisdictions refused to cooperate with ICE regarding the transfer of custody of removable aliens in a controlled setting, thereby requiring the women and men of ICE to risk their personal safety by conducting operations under more dangerous circumstances,” said Russell Hott, ICE Field Office Director for Virginia and D.C., in a letter to the board.
The lone law enforcement dissenter is the city’s Commonwealth’s Attorney, Joe Platania, who favors notification in felony cases but is unsure about misdemeanor offenses. In a letter to the board, Platania expressed concerns about the impact of the policy on potential witnesses and victims who may fear deportation after cooperating with police. “I am unable to see the positive impact the current policy has on family stability or public safety in the City of Charlottesville,” he said.
The Legal Aid Justice Center goes a step further, arguing that the detainer system is a threat to local immigrant communities. “The current voluntary notification policy threatens our collective public safety, flouts protections within our criminal justice system, and disproportionately affects people of color,” said Deena Sharuk, an attorney with the LAJC’s Immigrant Advocacy Program.
The LAJC’s Cruz points to the detrimental economic effects of removing a person who serves as a family’s main source of income, as well as to the loss of community trust in local law enforcement. “Community members equate a routine traffic stop with deportation,” she said during the January 11 ACRJ meeting. “That connection is being made because the undocumented community in Virginia does not have access to driver’s licenses.”
A Fair Hearing
A striking feature of the notification argument has been the stark contrast between opposing views of the same set of facts. For instance, the LAJC website asserts that “among the most common offenses for which immigrants at ACRJ become subject to ICE notification are getting drunk in public and not having a valid driver’s license.” An LAJC white paper says that “ICE manipulated jail data to make Charlottesville’s immigrant population seem dangerous.”
However, jail data for the period July 2017 to June 2018 on the charges against inmates who were subject to ICE notification requests (detainers) shows that, of the 44 individuals on whom ICE placed detainers, 70 percent of the charges were for DUI’s or felony offenses including burglary, assault, kidnapping, and indecent liberties with a child. So although driving without a license was a “common” offense among detained immigrants (five cases), it was a minority of the total, which included a wider variety of felony charges.
Similarly, an oft-cited point made by notification policy detractors is that the use of detainers to take undocumented immigrants into custody amounts to a “warrantless arrest.”
“Immigration detainers are not approved by a judge like criminal arrest warrants,” said Sharuk at an August ACRJ meeting. “Every other law enforcement agency that wants to take somebody from this jail and arrest them gets a warrant. You can’t flout the criminal justice system that we have.”
But the U.S. immigration system is structured differently from other agencies, said Matt Gordon, ICE deputy chief counsel. “Congress has designed the immigration system as a civil process,” he said. “There is no judge and no court for ICE agents to seek a judicial warrant in a civil context to effect immigration arrests.” The U.S. Immigration and Nationality Act empowers immigration officers to issue administrative warrants that do not have to be signed by a judge.
An August ACRJ work session featured a discussion of due process protections for noncitizens, including how ICE agents decide which inmates require detainers and which will be taken into custody. Charlottesville’s Bellamy questioned whether the process was sufficiently objective. “I think that what a lot of our community members are really concerned about is that there is no set form or set guidelines . . . as it pertains to these individuals, because it’s profiling to a certain extent,” said Bellamy. Assistant City Manager Mike Murphy also pressed ICE officials for what kinds of evidence and assessment tools are used in these decisions.
ICE Field Office Director Hott said that the detainer is merely “the first step in a selective and robust process of determining deportability,” which includes both mitigating and aggravating factors. “Not every encounter results in an arrest, not every arrest results in a detention,” he said, “and not every detainer results in deportation.” Flight risk and whether the individual is a danger to the community enter into consideration, as does any special protected status the noncitizen may fall under, including status as a valid asylee or refugee, information that may not be shared with local authorities.
The debate has sometimes devolved into harsh criticism of ICE itself. “Critics of notification . . . have accused local federal law enforcement agents of being Nazis and for having engaged in violations of the Convention Against Torture and other international treaties,” said Commonwealth’s Attorney Tracci. Local activist group Showing Up for Racial Justice Charlottesville issued a statement calling for “moral outrage at the ACRJ Jail Board for contributing to ICE’s state-sanctioned terrorism,” and encouraged the board to “resist fascism.”
In casting his vote to continue cooperating with ICE due to public safety concerns, Albemarle County Sheriff Chip Harding advised a different approach. “I recommend that if people are concerned with current ICE practices they should direct their efforts to their congressional representation,” said Harding. “Those are the folks who have been failing this country for decades by refusing to come together and enact a commonsense and fair immigration strategy.”
A Hands-off Solution
After months of meetings and suggested compromises, including a (defeated) proposal by Bellamy to continue ICE notification except in cases involving four nonviolent offenses (public intoxication, driving with a suspended license, loitering, and nonpayment of child support), ACRJ board members may have finally zeroed in on a compromise solution.
A computerized system maintained by the ACRJ called VINE, or Victim Information Notification Everyday, is currently used to notify crime victims when their offender is being transferred or released. Updated every fifteen minutes, the system could provide ICE with the release date information it seeks with regard to inmates of interest to federal immigration officials.
During September’s board meeting, at which over a dozen members of the public spoke in favor of continued ICE notification, the VINELink system (the online portal to VINE) was described by both jail and county officials as difficult to use and unreliable, at least partly due to a known software glitch. ACRJ tech staff are currently working to update and improve the software so that it may provide the notification ICE requests without an actual person from the jail having to place a phone call.
Though the electronic system would essentially provide the same notification to ICE as a human would, the LAJC is in favor of the change. “It’s a detriment to our community when local law enforcement do the work of ICE [via pre-release notification] because it makes immigrant survivors and witnesses of crime less likely to turn to local law enforcement when they are in crisis,” said Sharuk. Ending the practice of physically calling ICE “would be a victory for our entire community because this would be a way for all of us to be safer.”
In contrast, ICE Field Director Hott disagrees with the potential shift in method. “Abandoning ACRJ’s current policy on this important public safety matter and instead relying on a third-party system—a system that is designed for another purpose and may be susceptible to inadvertent or unforeseen errors . . . would be, for all intents and purposes, a vote to end release notifications,” said Hott in an October letter to the board.
Jail board officials expect to take a final vote on revising the ICE notification policy when testing of the VINELink system is complete, hopefully early in 2019, though it’s not clear that will end the issue’s divisiveness. During a Charlottesville City Council meeting in September, Bellamy referred to the limitations of the regional nature of the ACRJ Authority. “Believe you me, we are trying our hardest to stop ICE, but we’re in a jail board that doesn’t consist just of us,” he said.
For his part, Walker is optimistic that VINELink notification could not only resolve the issue for the ACRJ, but for other jurisdictions as well. “If we’re talking about an automatic notification to federal agents on a fifteen-minute-interval basis that reduces or removes the possibility of human error, I think that could be a solution that could be good for not only this facility, but for every jail facility that utilizes the VINELink system in the state,” said Walker. “We could be pioneering a policy change that is a good solution for everyone.”