August 30, 2010
By Facsimile and Email
The Honorable Robert E. McDonnell
Governor of Virginia
Third Floor, Patrick Henry Building
Richmond, Virginia 23219
Re: Memorandum of Agreement (MOA) between the Virginia Department of State Police and the Department of Homeland Security under Section 287(g)
Dear Governor McDonnell:
We are writing you as members of VA-SCOPE (The Virginia Alliance for Sensible Community Policing Efforts). Since it was formed in 2004, VA-SCOPE has functioned as an alliance of organizations and individuals concerned about preserving trust between state and local law enforcement and the immigrant communities of Virginia. VA-SCOPE members believe that expanding the scope of state and local enforcement to include the enforcement of civil violations of federal immigration law is bad public policy and would undermine that vital trust. We are particularly deeply concerned about the severe “chilling effect” that descends on immigrant communities, and especially on immigrant crime victims and witnesses, if they perceive that law enforcement is to be feared rather than trusted, and the subsequent impact on crime reporting and public safety in Virginia.
While we agree that the current immigration system is broken, turning state police into federal functionaries with immigration enforcement duties through implementation of a Memorandum of Agreement (MOA) under Section 287g of the Immigration and Nationality Act, 8 U.S.C. § 1375(g), is not the answer to this problem and does not properly prioritize the allocation of limited state law enforcement resources.
· The MOA will decrease rather than enhance public safety. Many state and local police chiefs and law enforcement officers have long sought to keep their activities separate from those of federal immigration officials. They have done so out of a belief that a clear line of separation is essential to public safety. It is axiomatic that when members of immigrant communities, many of whom come from “blended” status families, begin to see state and local police as deportation agents, they stop reporting crimes and assisting in investigations—negatively impacting the quality of life and safety and security of all Virginians. In addition, volunteering the state police to work under the direction of the Department of Homeland Security and take on the federal responsibility to enforce civil immigration laws makes even less sense today than it did in 2004 when the idea was first proposed. Budget cuts have eroded the ability of law enforcement to enforce state and local criminal laws effectively; adding federal job responsibilities to their portfolio will stretch already limited resources and detract from their primary responsibilities to protect our communities.
· No further action is needed to keep Virginians safe. Virginia has led the nation in taking steps (many of which we opposed as excessive, overreaching or ineffective) designed in theory to address public safety issues related to criminal conduct by people from other countries here either with or without authority. Virginia law already allows the state’s law enforcement officers to arrest certain criminal violators of federal immigration law. The Commonwealth is one of only two states that requires an immigration status inquiry of every person taken into custody for any criminal act and also has a presumption against bail for any person arrested for any crime who is determined to be in the country illegally. Despite concerns that have been raised about the accuracy of the data base and the targets of the program, the state participates in the ICE Secure Communities program. Some localities and correctional facilities already have 287g agreements. All of these other state and local initiatives were said to be needed to improve the ability and authority of law enforcement to combat gang activity, drug trafficking, and terrorism. None of these programs has yet been proven to do so, yet some have been shown increasingly to affect adversely working people and their families who have committed no crimes. Signing a state-level MOA would be a redundant and reckless step that would further erode trust between law enforcement and Virginia’s immigrant communities at a time when that trust is urgently needed, and without any evidence that it is necessary to take this step to keep Virginians safe.
VA-SCOPE remains resolutely opposed to all efforts to devolve enforcement of federal civil immigration laws to the states and localities, and urges you to take full account of all the costs and consequences that would follow from undertaking such an unfunded mandate. We understand that you have already reached out to Secretary Napolitano to request development and implementation of an MOA between the Department of Homeland Security and Virginia Department of State Police and that you advocated that previous governors sign such an agreement. Nonetheless, there are several important law enforcement issues that we believe must be addressed before you, or any other Governor, should choose to sign any such agreement on behalf of the State Police:
1) Protections for Immigrant Victims and Witnesses of Crimes. Any proposal to expand state-level enforcement of federal immigration laws must, as a first priority, include express language stating that routine inquiries will not be made into the immigration status of crime victims and witnesses. Any MOA must include the language from the legislation (introduced by Senator Janet Howell and supported by law enforcement, victim advocates, faith organizations and immigrant representatives) that passed the Senate unanimously three times (2008, 2009 and 2010), twice with the affirmative votes of the current Attorney General in committee and on the floor of the Senate. In addition, we urge you to support legislation codifying the policy against routine inquiries so that it is applied uniformly across the state. Finally, we ask that you take steps to ensure that the state and each local government train its law enforcement and other government agents to understand and comply with the provision, as well as to conduct outreach to educate the immigrant community about these protections.
2) Prevention of Racial Profiling. Any proposal to expand the state-level enforcement of federal immigration laws must, as an equal priority, also provide for the collection and reporting of racial and ethnic data regarding persons stopped, detained, arrested and/or convicted. Legitimate fears of bias-based policing cannot be allayed in the absence of a commitment to a meaningful system by which the implementation of the program is monitored. The State Police historically have opposed the collection of racial and ethnic data. As Governor, you must direct the collection of such information so that the implementation of any 287g program can be monitored and an informed assessment made regarding any possible racial or ethnic bias. Any MOA also must include specific requirements for complaint procedures and monitoring because without such processes, monitoring will be ineffective.
3) Limits on Immigration Status Inquiries. Any proposal to expand the state-level enforcement of federal immigration laws must be limited to the enforcement of immigration laws only in the context of an ongoing criminal investigation involving a specified list of serious crimes. Under no circumstances should a proposal permit any state or local law enforcement officer to be engaged in unlimited enforcement of civil immigration laws against persons who have not committed a serious criminal act under state or local law.
As Governor, you are uniquely positioned with the power—and the responsibility—to promote public safety for all Virginians. Virginia’s law enforcement officers need the trust of all of the communities they serve to keep the Commonwealth safe for all its residents. Turning state police into immigration agents threatens to destroy this vital trust, and set back decades of community-policing advances.
To summarize, it remains our fundamental and firmly held belief that state and local law enforcement of civil violations of federal immigration law is bad public policy under any circumstance, and we urge you not to negotiate or sign a statewide MOA. If your office continues to pursue increased immigration enforcement powers for the Virginia Department of State Police, however, we believe that, as Governor, you must first ensure that victims and witnesses to crime will be protected, a system will be in place to monitor implementation of any such agreement for evidence of bias, and that any such authority is strictly focused on persons who have committed serious criminal acts.
Thank you very much for your thoughtful consideration of our concerns.
VA-SCOPE
Organizations:
Hispanic Community Dialogue
Hispanic Services Council of Harrisonburg
Immigrants First, PLLC
Just Neighbors
LUCHA Ministries, Fredericksburg
LULAC Virginia
Multi-Cultural Alliance of Virginia
Northern Virginia Family Service
Reston Interfaith Center
SEIU Local 32BJ
Tahirih Justice Center
Tenants and Workers United
Unity in the Community (Manassas)
Virginia Coalition of Latino Organizations
Virginia Interfaith Center for Public Policy
Virginia Justice Center
Virginia Organizing
Individuals (organizational affiliation for identification only):
Rosaura Aguerrebere, School Board Member, Falls Church City Public School District
Peter Loach, Executive Committee, Creciendo Juntos-Growing Together, Charlottesville
Jennifer S. McCloud, School of Education, VA Tech
cc: The Honorable Janet Napolitano
3