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OFFICE OF THE COMMONWEALTH'S ATTORNEY

for the
COUNTY OF ALBEMARLE

ROBERTN. TRACCI
COMMONWEALTH'S ATTORNEY

September 12, 2018

Re: 9/13/18 ACRJ Vote to End Pre-Release Notification of Federally-Detained Noncitizens

Dear Albemarle Board of Supervisors Chair Mallek and Albemarle Supervisors McKeel,
Randolph, Dill, Palmer, and Gallaway,

The Albemarle-Charlottesville Regional Jail (ACRJ) Board will vote tomorrow,


September 13, on whether to terminate its longstanding practice -- observed by jails throughout
the Commonwealth of Virginia -- of notifying immigration agencies before the release of
criminal noncitizens subject to a federal immigration detainer.. Earlier this year, I was asked by
ACRJ Board Chair Diantha McKeel to appear before the ACRJ Board to assess the public safety
and law enforcement implications of terminating ACRJ's pre-release notice policy. A court
obligation prevented my appearance. However, on August 23, 2018 I submitted a letter detailing
my views to the ACRJ Board which is included as an attachment to this correspondence.

The Community Safety and Legal Consequences of ACRJ Becoming the First Jail
in the Commonwealth of Virginia to Discontinue Essential Pre-Release Notification

I recognize that all members of the Albemarle Board of Supervisors will not directly vote
on whether to terminate ACRJ's policy of notifying federal authorities before the release of
federally-detained criminal noncitizens. However, it is important for all Albemarle Supervisors
to weigh the community safety and policy implications of this vote. Of crucial significance to the

410 EAST HIGH STREET, CHARLOTTESVILLE, VIRGINIA 22902


September 12, 2018

citizens of Albemarle County, every person released from ACRJ - whether in custody for
offenses committed in Charlottesville, Nelson, or Albemarle - first enters the County of
Albemarle upon release. Of no less importance, it is crucial to recognize that most detained
criminal noncitizens over whom immigration authorities assume custody at ACRJ are subject to
federal detainer for serious felony offenses.

If the ACRJ Board terminates pre-release notification of unlawful criminal non citizens
subject to federal detainer, it will frustrate federal efforts to determine whether criminal
noncitizens are subject to removal. Frustrating the application of duly-enacted federal laws
would have local and Commonwealth-wide public safety implications. Moreover, ending
notification would displace a comprehensive federal statutory and regulatory scheme the
Constitution and laws of the United States clearly assign to federal immigration authorities. As
public servants, we have an obligation to respect the Constitution and laws of the
Commonwealth, including the Supremacy Clause of the United States Constitution.

The Purpose of Pre-Release Notification

Immigration agents do not have a permanent presence in local jails. As a result,


immigration authorities rely upon ACRJ and other jails to notify them before the release of
detained criminal noncitizens. Pre-release notification to immigration authorities of detained
criminal noncitizens has been deemed "voluntary." However, pre-release notification is essential
to ensuring that federal agencies can determine whether these individuals should be taken into
custody and prioritized for federal immigration review. This determination is based upon data
sometimes unavailable to state and local law enforcement agencies. Simply terminating pre-
release notification for detained individuals will result in their release into Albemarle and
surrounding counties without federal immigration review.

Clarifying the Federal Detainer Process and Preserving Respect for the
Separation of Powers Among Branches

Following the ACRJ Board's August 23, 2018 meeting, it became clear that longstanding
detention and notification policies observed by ACRJ are subject to considerable public
misunderstanding. I write to clarify legal and administrative aspects underlying detention and
notification practice to ensure that the Albemarle and ACRJ Boards are in a position to make
policy decisions that protect community safety and respect the exercise of immigration authority
the United States Constitution unambiguously assigns to the federal government.

A Federal Detainer is the First Step in an Extensive Review Process

Opponents of pre-release notification claim that all detainers result in deportation. This is
not accurate. When immigration authorities assume custody of a detained individual, processing
includes an assessment of proper "removal" charges (i.e., the reasons the noncitizen is subject to
removal from the United States) and an initial custody determination by an immigration officer
that is reviewed by a supervisor. If Immigration and Customs Enforcement (ICE) decides to

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September 12, 2018

detain, the noncitizen is transported to a detention facility. If ICE declines to detain, the
noncitizen may be released on his own recognizance, a bond, or other conditions pending a
hearing before an Immigration Judge.

The noncitizen can appeal an adverse Immigration Judge's decision to the Board of
Immigration Appeals (BIA) and an adverse BIA decision to the U.S. Circuit Court of Appeals.
The noncitizen may also pursue a challenge to his or her immigration detention before a U.S.
district court pursuant to a writ of habeas corpus and appeal an adverse U.S. District Court
decision to the U.S. Circuit Court of Appeals.

Federal Immigration Detainers Issued for ACRJ Inmates Typically Issue for
Serious Felony Offenses

Opponents of ACRJ's longstanding notification practice insist that federal detainers issue
to every noncitizen held at ACRJ. However, recent publicly-available ACRJ data demonstrates
that the clear majority of detained individuals over whom ICE assumes custody face serious
offenses or have been convicted of the same. These offenses include malicious wounding
(second offense), abduction, possession of a controlled substance, driving under the influence
(third offense), carnal knowledge of a child between 13 and 15 years of age, breaking and
entering, trespass, domestic assault, breaking and entering, sexual battery, failures to appear in
court, contempt of court, strangulation, and other serious offenses. A list of these offenses is
included as Attachment D to this letter. For the far smaller number ofless serious offenses for
which federal immigration detainers were issued, including a profane swearing/public
intoxication charge, the detention process was initiated by a neighboring Commonwealth's
Attorney, not federal immigration authorities.

ACRJ Does Not Detain Criminal Noncitizens Subject to Detainer Beyond Their
Scheduled Release Dates

In recent days, some opponents of continued notification have alleged that ACRJ holds
criminal noncitizens subject to federal immigration detainer beyond their release dates at the
request of immigration authorities. This is not accurate. As ACRJ Superintendent Martin Kumer
has made clear, ACRJ does not detain noncitizens beyond their release dates. The issue pending
before the ACRJ Board has nothing to do with detaining noncitizens beyond their release dates.
Rather, the ACRJ Board will vote on whether to become the first jail in the Commonwealth to
stop notifying immigration authorities before the release of criminal noncitizens subject to
federal immigration review.

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September 12, 2018

The Secure Communities Initiative, the Federal Detainer Process, and the Claim
that Immigration Detainers and Accompanying Warrants are "Voluntary"

Under the Secure Communities Initiative, a program first implemented by former


President Obama in 2009, biometric and biographical information of individuals booked into
state and local jails are matched against a federal database. Upon receipt of this information,
federal authorities conduct an assessment to determine whether that individual is a citizen or a
removable noncitizen. This assessment is based on information known to federal immigration
authorities, such as prior encounters with enforcement agencies.

Federal law authorizes immigration personnel to issue detainers for noncitizens for whom
probable cause of a deportable offense has been established; it is merely the first step of an
extensive process. If a lawfully designated immigration official determines that probable cause
exists for the removal of a criminal non citizen, an immigration detainer (Form 1-247A) issues.
Detainers are accompanied by an administrative warrant -- either a Form 1-200 if the noncitizen
has not completed the immigration removal process; or a Form 1-205 if the noncitizen has
completed the immigration removal process and been ordered removed. The detainer and
accompanying warrant are then issued to the jail facility holding the noncitizen. Both the
detainer and accompanying warrant are fully authorized by federal law enacted by Congress and
no more "voluntary" than other federal warrants. If ACRJ's Board terminates pre-release
notification, it will defeat the purposes for which detainers and warrants are issued and impede
the federal immigration review process prescribed by Congress.

Moreover, from the time the detainer and warrant are issued until federal immigration
authorities receive notification that the noncitizen is being released from criminal custody,
federal agencies review and assess whether the individual remains a priority for enforcement and
removal. If additional information shifts the probable cause determination or indicates that the
individual is no longer a priority for enforcement or removal, Immigration and Customs
Enforcement (ICE) may "lift" or cancel the immigration detainer. If federal immigration
authorities do not "lift" the immigration detainer, ICE will assume custody of that individual
continue to assess whether that individual is subject to removal. Simply put, ending pre-release
notification to immigration enforcement agencies would obstruct the federal immigration review
process and defeat the public safety goals of the Secure Communities Initiative.

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September 12, 2018

Detained Criminal Noncitizens Over Whom ICE Does NotTake Custody

Opponents of continued notification have claimed that federal immigration authorities


sometimes do not "pick up" noncitizens detained for serious offenses. Examples include an
Albemarle noncitizen charged with strangulation who was detained but not picked up by federal
immigration authorities upon release. While this occurs in a small number of cases, ICE
sometimes does not take custody of detained noncitizens because the review process determines
that that these individuals qualify for an exemption from deportation, including Deferred Action
for Childhood Arrivals (DACA), Temporary Protected Status (TPS), status as a valid aslyee or
refugee, or by virtue of being a lawful permanent resident (LPR).

Critics of continued notification claim that individuals detained but not "picked up" by
ICE demonstrate that immigration authorities are not prioritizing criminal noncitizens for
removal. However, the fact ICE does not take custody of all detained noncitizens does not
"prove" an arbitrary federal detention process. Rather, it underscores the procedural safeguards
underlying the statutory detention and removal process established by Congress and
implemented by immigration enforcement agencies.

The Claim that Federal Immigration Authorities Should Seek a "Criminal


Warrant" Before Noncitizens are Remanded to ICE Custody

Opponents of continued notification argue that that federal immigration authorities


should obtain a criminal warrant before a federal before ACRJ either remands a noncitizen to
ICE custody or provides notice of release. This argument fails for a number of reasons.

First, this argument ignores the Supremacy Clause by rejecting the facial validity of
federal immigration detainers and accompanying administrative warrants authorized by Congress
and accompanying regulations. Second, federal magistrates lack authority to issue arrest warrants
for civil immigration violations. That is precisely why Congress authorized the issuance of
detainers and accompanying warrants by immigration enforcement agencies. Third, 8 U.S. Code
§ 1325, the federal criminal misdemeanor for illegal entry, generally applies to prosecutions of
illegal entry in jurisdictions contiguous to the United States border. The City of Charlottesville
and the Counties of Nelson and Albemarle do not meet this threshold. Simply put, it is
inappropriate for the ACRJ Board to substitute its arbitrary judgement for that of an established
body of federal law and regulation in a field the Constitution clearly reserves to the federal
government.

• Page5
September 12, 2018

Respect for the Rule of Law is a Touchstone of Democratic Self-Governance

In recent months, this issue has generated considerable public interest, as is appropriate.
However, some opponents of federal immigration law have sought to broadly malign federal
immigration officers sworn to uphold the laws of the United States. This is both unfair and
inappropriate. As I stated in my earlier letter to the ACRJ Board, under the American system of
government, the proper way to change federal law is to petition Congress to change federal law.
As elected officials, we should must remind ourselves - and those we are privileged to serve -
of this important recognition.

Thank you for the opportunity to provide my views.

Sincerely, ~ ,

R!l!l~~
Commonwealth's Attorney

CC: Albemarle-Charlottesville Regional Jail Board


Martin Kumer, Superintendent, Albemarle-Charlottesville Regional Jail
Chip Harding, Albemarle County Sheriff
Diantha McKee!, Albemarle Board of Supervisors
Doug Walker, Albemarle Assistant County Executive Cyndra Van Clief, Citizen
Dr. Wes Bellamy, Charlottesville City Council
James Brown, Charlottesville City Sheriff
Mike Murphy, Charlottesville Interim City Manager
Kathy Harris, Citizen
W. Lawton Tufts, Citizen
David Hill, Nelson County Sheriff
Steven Carter, Nelson County Executive
Joseph Platania, Charlottesville Commonwealth's Attorney

• Page6
OFFICE OF THE COMMONWEALTH'S ATIORNEY
for the
COUNTY OF ALBEMARLE

ROBERT N. TR.A.CCI
COMMONWEALTH'SATIORNEY

August 23, 2018

Dear Colonel Kumer and Albemarle County Regional Board Members,

While I intended to attend, court obligations preclude my physical attendance at today's


Albemarle County Regional Jail (ACRJ} meeting. However, I respectfully ask that this letter be
included in the hearing record.

As an initial matter, it should be made clear that I provide these remarks voluntarily, and
that they do not constitute legal guidance to this Board. This recognition is consistent with
Virginia Code§ 15.2-1627, which provides, inter_ alia, that '~[n]o attorney for the
Commonwealth, or assistant attorney for the Commonwealth, shall be required to carry out any
duties as a part of his office in civil matters of advising the governing body and all boards,
departments, agencies, officials and employees of his county or city...." However, public
interest in this issue justifies a response to your request to provide my views.

It is my understanding that the ACRJ Board is contemplating the discontinuation oflong-


established ·policy pertaining to notifying federal immigration officers before the release of
unlawful residents subject to a federal immigration detainer. As Charlottesville Commonwealth's
Attorney Joseph Platania properly observes in his August 10, 2018 letter to this Board, "federal
immigration enforcement falls well outside the purview of state prosecutors in the
Commonwealth of Virginia."

My oath of office extends to the Constitution of the United States and the Commonwealth
of Virginia. The Supremacy Clause of the United States Constitutfon (Article VI, Clause 2)
establishes that the Constitution and federal law constitute the supreme law of the land. From a
state and local law enforcement perspective, it is important to recognize that there may be things
about a detained individual's criminal history or status unknown to state and local law
enforcement. This concern is aggravated when individuals are arrested without identification,
and are matched to other offenses through the biometric data accessible to federal authorities.

410 EAST HIGH STREET, CHARLO'ITESVILLE, VIRGINIA 22902


August23,2018

Absent additional safeguards, discontinuing notification would result in the release of these
individuals into the County of Albemarle and neighboring jurisdictions.

Consistent with the Immigration and Nationality Act and applicable federal law and
accompanying regulations under 8 U.S.C. §§ 237 and 287, the Albemarle County Regional Jail
has provided notification to Immigration and Customs Enforcement (ICE) (and its predecessor
agency) before the release of detained individuals subject to federal detainer. Given the clarity of
federal law and regulations, this notification occurred without objection or controversy during
presidential administrations of both parties. In fact, it is my understanding that every regional jail
in the Commonwealth of Virginia and in the District ofColumbia provides federal law
enforcement notification prior to the release of detained individuals. As a result, any change to
this policy requires public enunciation of the Board's legal authority to abrogate existing
practice, clear explication justifying this departure, and an explanation of accompanying public
safety implications. Simply put, the proper way to change federal law is to petition Congress to
change federal law.

Moreover, ACRJ data demonstrate that the clear majority of detained individuals face
serious felony offenses. I respectfully request that that a list of these offenses, with personally
identifiable information redacted, be made part of the public record by the ACRJ Board. In
addition, while some detainers issue for less serious offenses, analysis of this data often indicates
that these individuals may be facing pending charges in federal or state jurisdictions or additional
immigration-related charges. As a result, the claim that detainers are issued for all unlawful
residents booked into ACRJ is inconsistent with the data. In addition, the data appears to indicate
that some individuals facing serious felony charges, including strangulation, and abduction, have
not been picked up by federal immigration after detainers are issued. Clarification of this data by
federal immigration representatives would be instructive.

I would like to conclude with the following point. As a first generation American whose
parents are both immigrants, I realize the emotion the issue of immigration evokes in many. We
are a country of immigrants, but no less sovereign than any other. And we are a nation of laws;
laws that I swore to uphold without regard to personal preference when taking the oath for the
office I am privileged to serve. In recent months, the intensity of emotion generated by these
issues has resulted in unprecedented attacks on federal immigration officers. Attacks on law
enforcement are not new and take many fonns. In recent years officers and agents of the FBI,
ATP, Bureau of Land Management, IRS, EPA, and state and local law enforcement have been
targeted for personal abuse and public derision. Our First Amendment is strong and vibrant, and
nobody is above reproach. But whatever one's views, it is unfair and inappropriate to broadly
demean, defame, and demonize federal, state, or local law enforcement officers. The vast
majority of these officers are honorable public servants who do their best on a daily basis to
enforce the law consistent with the oath they swear to uphold. They deserve appreciation not
vilification.

• Page2
August23,2018

As the Board continues to consider and deliberate on these issues, it is my hope that it
will do so in a spirit that respects the law and acknowledges the vital role the law enforcement
community plays in upholding it.

Thank you for the opportunity to provide my views.

sm~·

Robert N. Tracci
Commonwealth's Attorney

• Page3
Attachment D
I Country of Origin I
.. ··---·-···--·1 ..--..... -····
Charge ........
I
j
Bonded Convicted Release date ! ICE Pick-up
--·····l-.. ...... ...
1 Mexico
.. .
·--·-··-·· , ..,.
!Probation
···-····
Violation
" •••
Yes
""~•---..••-"•h-
10/10/2017 Yes
2 Unknown ........... _.
Drive w/ License Revoked Guilty 11/17/2017 Yes
-··········•·"· •••-•--•-•••--• ••••••,u, •••

3 Mexico Profane Swearing Intoxication Yes 8/11/2017 Yes


- - ·-·· ·•------.- ·-·--·-·········· ........................... ··---·-
Unuthorized Use of Veh, Driving W out lie, Unauthorized Use Drving W/0 (Fined) ,
4 Mexico DUI
····~·-······- --·•• .. ··-·---
ofVeh DUI {Fined) 6/22/2018 Yes
---·••-.-- .. ...... ..................... -·-····---- .....-... ----·--·------· --
,, _._

S Mexico
···-····-·-··--
Driving with~ut License ...........,-....-...... ··- ....... ·--.
Guilty 8/17/2017 Yes
···-··-.
Mal Wounding X2
(Nolle Prosequi)
Maficious Wounding,
6 El Salvador Malicious__ yyounding X3, Abduction ........,....-..................
Abduction ( Guilty) 7/14/2017 Yes
Poss Con Sub, Drive
W/0
DUI, Law Enforcement Command (Nolle Prosequi)
Disregard and Endanger, Poss Controlled LEO Disregard, DUI
7 Mexico Sub, Drive W out Lie (Guilty) ___ ., ___ 11/2/2017 Yes
Failt to Appear X2,
0)
..--
Failt to Appear x2, Forgery, Contempt Of Forgery Contempt of Court
8 Honduras ........ ,.,..
Court Counterfeit
..........~------
(Guilty) 10/26/2017 Yes .........._

Assault and Battery, B & E, Destruction of


9 Mexico Property, Phon~_obstruct/Tamper Yes ......,._,.., __ .... ........._.,_,_.,__ ________ .. 8/11/2017
.,
Yes
···--- , ,,,

10 Mexico DUI Yes 6/19/2017 I Yes


- i ...
I
Carnal Knowledge of Child between 13 and
11 Honduras 15 Years of age
-..-·•·-····-·-·---•--.............
Guilty ......... ..........
6/29/2017 Yes
·--·-·----·

12 Unknown
··-·--·····-·
DUI
-~·-··------··-.. -~- ·---·- ....--~•-·· ..···•·••--·--
Guilty ___ L __ 4/19/2018 ._
Yes
.....

DWI 3rd Offense, Driving after Forfeiture of


13 Mexico Uc _,... _..........-..~---------
Yes
... - .... -··· ..... ··-
10/23/2017 Yes
---·-

14 Mexico DUI Mandatory Length 7/18/2017 Yes


I .Country
---1-. . . ,_, _,, ..............:I...... ,_,_,.,
of Origin Charge .. ..... ~- .... ' ! Bonded
M•- ~ ••. 0 '" • .. , •••• H
Convicted ! Rele~_~E! -~~~~ ... 1.1.~!_!,_i~~-up
i
I
j
B & E ( Guilty) Stalking '
i;
( Susp Sentence)
Monument lntentionaf
Burglary, Monument Intentional Damage, Damage, Tresspass
16 El Salvador Stalking, Trespass, ....._
(Nolle Prosequi} _____ 3/1/2018 Yes
17 DWI 1st Off Mandatory Length 6/11/2018 Yes
·····•,. ..
,.,.,. -·- ................... ...............
I
I; Domestic Assault i

(Guilty) !
Domestic Assault, Strangulation Resulting Strangulation
18 in wounding or bodily injury ..... -..-.. (Nolle Prosequi) 6/11/20}~---~-
-·--····. -· •<.tw,•1•_. •••-•

!
B & E , Sexual Battery (
Guilty)
Sexual Battery x2, Burglary, Peeping into Sexual Battery, Peeping
19 Mexico occupied dwelling ,.
{ Nolle Prosequi) 7/20/2017 Yes· 0
···-·· N
20 Mexico Malicious Wounding Dismissed 10/19/2017 Yes
- ....... ,~

Fail to Appear, Reck


Driving, Accident Not
Reported ( Guilty)
Faif to Appear, Reckless Driving, Drive Drive W/0 Lie
21 Mexico
··--·---....._ ...
without license, Accident not reported (Susp Sentence) 2/19/2018 ..........,,... _ Yes
·--
Contempt ( Guilty)
Domestic Assault (
22 Honduras Domestic Assault, Contempt of C?~~t Susp Sentence) 12/11/2017 Yes
II
-····• ,,u ...
--
Strangulation (Guilty)
Simple Assault
23 Mexico Strangulation, Sim ple . Assault ..-.-...,...
( Nolle Prosequi) ....
7/7/2017 Yes
---. ......

Report, DWl, Prob Viol (


I
DWI, Probation Violation, Hit & Run fail to GuHty) VASAP I
I I

24iMexico jReport, Non Compliance with VASAP .... ., .. u.,,.


INon Compliance ( ____ . j 6/16/2017 Yes
-• ...-.. - -........
2SIMexico IPublic Swearing or Intoxication Yes . I 8/11/2017 Yes