OFFICE OF THE COMMONWEALTH'S ATTORNEY

COUNIYOFALBEMARLE

ROBERT N. TRACCI
COMMONWEALTH'S ATTORNEY
410 E. HIGH STREET, CHARLOTIESVILLE, VA 22902

The Honorable Mark Herring

Attorney General
Commonwealth of Virginia
202 N 9th St.
Riclnnond, VA 23219

December 17, 2018

Re: Potential January 10, 2018 ACRJ Board Vote to End Pre-Release Notification of
Criminal Noncitizens Subject to Federal Immigration Detainer

Dear Attorney General Herring:

As you may know, for nearly a year the Albemarle-Charlottesville Regional Jail
Authority Board ("ACRJ Board" or "Jail Board") has been considering whether to become the
first jail in the Commonwealth of Virginia to stop notifying immigration authorities before the
release of criminal noncitizens subject to federal immigration detainer. Pre-release notification
policy has been longstanding, nonpartisan, and observed without controversy in prior
administrations, including all eight years of the Obama Administration when noncitizen
deportations reached historically high levels. I write to request your views on a matter bearing on
the public safety of Virginia residents.

All law enforcement officers serving on the ACRJ Board have previously expressed
support for re-release notification. Current law enforcement personnel on the Jail Board include

410 EAST HIGH STREET, CHARLOTTESVILLE, VIRGINIA 22902

 December 17, 2018

Albemarle County Sheriff Chip Harding, Charlottesville Sheriff James Brown, and Nelson
County Sheriff David Hill. Nelson County Commonwealth's Attorney Daniel Rutherford, and
Roanoke-based U.S. Attorney Thomas Cullen have also expressed support for maintaining
current notification policy. Additional Jail Board members include Charlottesville City
Councilor Dr. Wes Bellamy, Interim Charlottesville City Manager Mike Murphy, Albemarle
Supervisor and Jail Board Chair Diantha McKee!, Assistant Albemarle County Executive Doug
Walker, Nelson County Executive Steven Carter, and private citizens Cyndra Van Clief, W.
Lawton Tufts, and Kristen Clarens.

An immigration detainer is an administrative warrant that is issued pursuant to federal

law and accompanying regulations upon a showing of probable cause that a statutorily-
prescribed deportable offense has been committed. Detainers may issue for serious criminal
offenses unknown to state and local law enforcement personnel. Because immigration authorities
do not have a physical presence in Virginia jails, pre-release notice ensures that "detained"
criminal noncitizens are prioritized for immigration review pursuant to federal law. Terminating
pre-release notification for detained individuals may result in their release into Virginia
communities, raise public safety concerns, and frustrate implementation of a duly-enacted field
of law the Constitution and Supreme Court clearly reserve to federal authority. After being asked
to provide my views by the Jail Board, I have provided my views and conveyed information
pertaining to the felony offenses for which federal detainers for ACRJ inmates have issued. (See
September 12, 2018 letter attached to this correspondence.)

It is important to emphasize that ACRJ does not hold criminal noncitizens beyond their
release dates for Virginia criminal charges, even if requested to do so by federal immigration
authorities. However, like every other jurisdiction in the Commonwealth, ACRJ does notify
federal immigration authorities before the release of criminal noncitizens to whom lawful
immigration detainers have been issued. While most noncitizens do not commit violent felony
offenses, the overwhelming majority of noncitizens subject to federal immigration detainer in
ACRJ custody are booked for felony offenses. (See accompanying data, as well as Public Safety
Imperative: Regional Jail Debates Cooperation with ICE, The Crozet Gazette, December 6,
2018; available at: https://www.crozetgazette.com/2018/12/06/public-safety-imperative-regional-
jail-debates-cooperation-with-ice/).

On January 25, 2017, the Jail Board voted 7-3 to maintain this longstanding pre-release
notification policy. By September 13, 2018, the ACRJ Board prepared to re-vote on this policy.
However, a vote was postponed when Board members proposed terminating pre-release
notification in favor of a passive, third party, software program known as VINELink. When
concerns about the reliability of this private software program were identified, Board members
agreed to further explore the viability of this alternative while acknowledging its current
technical deficiencies, inaccuracies, and limitations.

Upon learning of the Jail Board's proposal to terminate pre-release notification and
require federal law enforcement to rely upon VINELink to determine the release dates of
federally-detained noncitizens, ICE Field Director Russell Hott expressed strong concern to

• Page2
 December 17, 2018

members of the Jail Board. In a letter dated October 29, 2018, Director Hott wrote:
"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." (See October 29, 2018 letter, attached to this letter.)

Opponents of pre-release notification have made clear their intention to limit the
implementation of federal immigration laws. Charlottesville City Councilor and Jail Board
member Dr. Wes Bellamy recently stated: "Believe you me, we are trying our hardest to stop
ICE, but we're in a jail board that doesn't consist just ofus." (See accompanying Crozet Gazette
article.) Moreover, notwithstanding unambiguous opposition from federal law enforcement, the
Jail Board is currently evaluating whether VINELink is a suitable alternative to longstanding
pre-release notification. According to Albemarle County Executive and Jail Board member Doug
Walker, requiring federal authorities to rely upon VINELink may be a viable alternative locally
and throughout the Commonwealth. (See attached Crozet Gazette article.)

Given the public safety implications of this issue, I respectfully request your views
concerning the viability and feasibility of VINELink as a substitute to pre-release notification
observed by ACRJ and jails throughout the Commonwealth of Virginia.

Specifically:

• Has your office been consulted or undertaken any independent review to determine
whether VINELink is a suitable alternative to longstanding, pre-release notification to
federal authorities?

• Could ending pre-release notification and requiring immigration authorities to rely upon a
private, third party software program whose own limitations are emphasized in its
software licensing agreement increase the likelihood that criminal noncitizens subject to
detainer could avoid federal immigration review?

• Could ending pre-release notification with no clearly-established alternative impede,

frustrate, or obstruct enforcement of duly-enacted federal law?

• Could this affront the spirit of the Supremacy Clause of the U.S. Constitution?

• Could ending pre-release notification have any adverse public safety consequences?

• Should the views of federal law enforcement agencies be taken into consideration by
state and local officials?

• If Virginia's state and local jails notify other states before the release of inmates facing
charges in other states, why is it appropriate for Virginia's state and local jails to deny
similar comity to federal law enforcement?

• Page 3
 December 17, 2018

• Is it appropriate for local officials to determine which federal Jaws should be accorded
deference, or for state and local officials to selectively detennine whether to provide
notice to federal law enforcement pursuant to valid administrative warrant is appropriate?

• Might a decision to end pre-release notification produce precedent in other fields of law
reserved to federal authority, i.e. federal fireanns, narcotics, or other federal laws or
regulatons?

While a fonnal Advisory Opinion is not sought, your views concerning the viability of
VINELink as a substitute for longstanding pre-release notification policy will help provide the
ACRJ Board with essential data to make an infonned decision on this important public safety
matter.

Finally, some of those seeking to end longstanding pre-release notification policy have
accused federal immigration authorities of engaging in "terroristic" violations of human rights
conventions and international treaties including the Convention Against Torture. Demonizing
law enforcement personnel - be they federal, state, or local - undennines respect for the law and
those who risk their lives to uphold it. We can be a welcoming community and Commonwealth
while defending our laws and those who enforce them. It is my hope your office will help affinn
this important recognition as our community continues to debate these questions.

VeryRespe~

jlSvif~
Robert N. Tracci
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

• Page4
 OFFICE OF THE CoMM0NWEALTH'S ATIORNEY
for the
CoUNTY OF ALBEMARLE

R0BERTN, TRACCI
CoMM0NWEALTH'SATIORNEY

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 McKee! 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

4 IO EAST HIGH SlREET, 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 noncitizens

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 Unitecl States) and an initial custody determination by an immigration officer
that is reviewed by a supervisor. If Immigration and Customs Enforcement (ICE) decides to

• Page2
 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 Inntates 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 ofa 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.

• Page3
 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 noncitizen, 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.

• Page4
 September 12, 2018

Detained Criminal Noncitizens Over Whom ICE Does Not Take 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, ,,.---- •

.1~~
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'SATI'ORNEY
for the
CoUN'lYOF ALBEMARLE

ROBERTN. TRACCI
CoMMONWEALTH'SATOORNEY

August23,2018

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 attomey 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 1he governing body and all boards,
departments, agencies, officials and employees ofhis 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 ofVrrginia."

My oath of office extends to the Constitution of the United States and the Commonwealth
of Virginia. The Supremacy Clause of the United States Constitution (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 loeal law
enforcement. This concern is aggravated when individuals are arrested without identification,
and are matched to other offenses through the biometric data accessi'ble to federal authorities.

410 Et\ST ffiGH STREET, CHARLOTl'ESVILL, VIRGINIA 22902

 August 23, 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 regionaljail
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 ofthe 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 Jaw.

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 detainm 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 oflaws;
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,
ATF, Bureau of Land Management, IRS, EPA, and state and local Jaw 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 Jaw 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
 August 23, 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.

·~ Robert N. Tracci
Commonwealth's Attorney

• Page3
 Attachment D
Country of Origin I.
·---•l-••"
Charge --- ··-
Bonded Convicted L.
Release date.. ICE Pick-up
1 Mexico iProbation Violation Yes 10/10/2017 Yes
2 Unknown Drive w/ License Revoked Guilty 11/17/2017 -~·~-. Yes
3 Mexico Profane Swea.ring Intoxication
---·---
Yes .......................__,,_ 8/11/2017 Yes
Unuthorlzed Use ofVeh, Driving W out Uc, Unauthorized Use Drving W/O (Fined),
4 Mexico DUI ofVeh DUI (Fined) 6/22/2018 Yes
5 Mexico Driving wlt~out License Guilty 8/17/2017 Yes
. .....~•·---·--······
Mal Wounding X2
(Nolle Prosequi ) I
Malicious Wounding,
6 El Salvador Malicious Wounding X3, Abduction · Abduction ( Guilty) 7/14/2017 Yes
Poss Con sub, DrlVe
W/O
DUI, law Enforcement Command (Nolle Prosequl)
Disregard and Endanger, Poss Controlled LEO Disregard, DUI
7 Mexico Sub, Drive W out Lie ~~ty) 11/2/2017 Yes
Failt to Appear X2,
Failt to Appear x2, Forgery, Contempt Of Forgery Contempt of Court "'
~

8 Honduras Court Counterfeit (Gullty) 10/26/2017 Yes

Assault and Battery, B& E, Destruction of

9 Mexico Property, Phone obstruct/Tamper Yes 8/11/2017 Yes
10 Mexico DUI Yes 6/19/2017 Yes
Carnal Knowledge of Child between 13 and
11 Honduras 15 Years of age Guilty --~- ........ 6/29/2017 Yes

12 Unknown DUI Guilty 4/19/2018 Yes

-- ~--··--··-

DWI 3rd Offense, Driving after Forfeiture of

13 Mexico Lie Yes .... ,,_,_ 10/23/2017 Yes

\
i I
14!Mexlco /DUI IMandatory length 7/18/2017
'I
I Yes
_J Country of Origin). ___ Charge - __ ,_, ..... Bonded
" ··~ ' --····
I Convicted Relea_s~ ~atf! !ICE Pick-up
I
. 'i
i
; B & E ( Guilty) Stalking
I
' '
{ Susp Sentence)
I Monument Intentional Ii
Burglary, Monument lntentlonal Damage, Damage, Tresspass
I
16 El 5afvador Stalking, Trespass, (Nolle Prosequi) 3/1/2018 ! Yes
17 DWI 1st Off Mandatory length 6/11/2018 !
I Yes
I
-·- ·---
Domestic Assault
{Guilty)
Domestic Assault, Strangulation Resulting· Strangulation
18 in wounding or bodily injury (Nolle Prosequi) 6/11/2018 Yes
-- ..

B & E, Sexual Battery (

Guilty)
Sexual Battery x2, Burglary, Peeping Into Sexual Battery, Peeping
19 Mexico occupied dwelling { Nolle Prosequi) 7/20/2017 Yes·
20 Mexico Mallcious Wounding Dismissed
- 10/19/2017 Yes
~

Fall to Appear, Reck

Driving, Accident Not
Reported ( Guilty)
Fail to Appear, Reckless Driving, Drive DrlveW/0 Uc
21 Mexico without License, Accident not reported {Susp Sentence) 2/19/2018 Yes
·-
Contempt ( Guilty)
Domestic Assault (
22 Honduras Domestic Assault, Contempt of Court Susp Sentence) 12/11/2017 Yes
·-
Strangulation (Guilty)
Simple Assault
23 Mexico Strangulation, Simple Assault ( Nolle Prosequi) 7/7/2017 Yes
Report, DWI, Prob Viol (
DWI, Probation Violation, Hit & Run fail to Gullty) VASAP
24 Mexico Report, Non Compliance with VASAP ..... Non Compliance { 6/16/2017 Yes
----
25 Mexico Public Swearing or Intoxication Yes 8/11/2017 Yes
12/17/2018 Public Safety Imperative: Regional Jail Debates Cooperation with ICE I Crozet Gazette

Public Safety Imperative: Regional Jail Debates

Cooperation with ICE
By Lisa Martin - December 6, 2018

The 11 •member Albemarle-Charlottesville Regional Jail Authority Board, along with jail administrative stBff and attorneys, met September
13 in the Jail's Muster Room. Photo: Mary Cunningham.

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,'1 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 attorneyTanishka
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."

At Issue
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. lf 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 Ku mer. While alerting ICE to the
presence of non citizen inmates via fingerprinting is mandatory for the jail, abiding by the detainer request is
not.

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An overflow crowd watched a livestream of the September 13 ACRJ board meeting from outside the jail. Photo: Mary Cunningham.

At the first ACf\l 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
meetil'lg 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' rfghts
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 S0wperson 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 yearwlong 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
adminlstratlve 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 famUies 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

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terminating pre~release notification for detained individuals will result in their release into Albemarle and
surrounding counties without federal immigration review," said Trace!.

In addition, immigration enforcement officials say that ending notification may lead to greater risk for both law
enforcement officers and noncitlzens 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 DU l'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 ~ake 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.

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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 deportabi!ity," 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 asy!ee or refugee,
information that may not be shared with local authorities.

While more than a dozen members of the pubJ/c spoke In favor of the jail's ICE notification policy at the September 13 ACRJ board
meeting, just as many had spoken against the policy at a prior meeting. Photo: Mary Cunningham.

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 Traccl. 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 f6ur nonviolent offenses (public intoxication, driving with a

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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 VINEUnk system (the on line 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. UAbandoning 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."

Lisa Martin
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enim ad minim veniam, quis nostrud exercltation u11amco laboris nisi ut a!iquip ex ea commodo consequat.

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 Enforcement and Removal Operations
Washington Field Office

U.S. Department of Homeland Security

2675 Prosperity Avenue
Fairfax, VA 22031

U.S. Immigration
and Customs
Enforcement

October 29, 2018

Albemarle-Charlottesville Regional Jail Authority Board

Clo Diantha McKee!, Chairperson
160 Peregory Lane
Charlottesville, VA 22902

Re: Release Notifications to ICE

Dear ACRJ Authority Board Members and Chairperson McKee!:

On behalf ofU.S, Immigration and Customs Enforcement (ICE), thank you again for the opportunity
to participate in the Board's August 23, 2018 work session. ICE regrets that there was considerable
misunderstanding amongst several Board members concerning ICE's mission and policies on
immigration enforcement in Albemarle and Nelson counties, As noted in my September 12, 2018
letter, ICE remains committed to providing interested Board members with a "behind-the-scenes"
view of the agency's operations and would be happy to provide additional information to facilitate
the Board's decision-making process on these important matters,

In the interest of the community's safety, ICE was pleased that, following the August work session,
the Board voted to continue its longstanding practice of notifying ICE in advance of releasing aliens
for whom ICE has established probable cause to arrest and for whom ICE has issued a lawful
immigration detainer. The Board's decision demonstrates a practical commitment to public safety,
The continuation of this policy will allow the appropriate federal authorities to carry out our
Nation's immigration laws, as enacted by Congress, with no unnecessary risk to the women and men
in law enforcement,

Notwithstanding, it was brought to ICE's attention that the Board has simultaneously undertaken
further review of additional or alternative means to provide release notifications, including the
potential use of the third-party Victim Information and Notification Everyday (VINE) web-based
portal and has requested input from ICE,

VINE is an important notification tool for victims of crime. In fact, ICE currently utilizes this web-
based system to notify victims of changes in custody status for offenders in ICE custody through the
U.S. Department ofHomeland Security- Victim Information Notification Exchange (DHS-VINE).
However, as the vendor for the VINELink system acknowledges, the third-party system is designed
for a particular purpose, and the company's own terms of use understandably disclaims its fitness for
other purposes.

www.ice.gov
Letter to ACRJ Authority Board
Re: Release Notifications to ICE
Page 2 of2

ICE appreciates the Board's efforts to identify more efficient means to notify ICE when an
individual, who is removable under the Nation's immigration laws, is encountered at ACRJ.
However, ICE cautions the Board against adopting new policies or procedures that would seek to
replace existing and longstanding law enforcement practices that, in Superintendent Kum er' s words,
place a "de minimus" burden on ACRJ staff.

Put simply, 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 (such as where VINELink data does not match names
and other biographical information in ICE systems)-would be, for all intents and purposes, a vote
to end release notifications.

As the rate of criminal recidivism remains disturbingly high in our communities, an unnecessary
vote to actively frustrate ICE's ability to assume custody of offenders in a secure jail setting could
have a deleterious effect and needlessly place members of the community at risk for re-
victimization. For example, according to a recent study conducted by the U.S. Department of
Justice, Bureau of Justice Statistics (BJS), an alarming 83 percent of individuals released from state
criminal custody during a nine-year survey period had reoffended, including 68 percent arrested
within three years of their release. See U.S. Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period
(2005-2014)," May 2018, https://www.bjs.gov/content/pub/pd£'18upr9yfup0514.pdf.

The women and men ofICE have a duty to enforce the laws Congress has passed. ICE prioritizes
enforcement efforts on those aliens who pose a threat to public safety and/or national security and
those who otherwise undermine the integrity of our Nation's immigration system. The aliens
identified as being of interest to ICE and detained in ACRJ were arrested by local authorities for
violations of state or local laws and were deemed to pose enough of a risk that your local authorities
arrested and detained them. A large number ofICE'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 ofICE to risk their personal safety by
conducting operations under more dangerous circumstances.

While a vote to end ACRJ's longstanding and common-sense notification policy may impede ICE's
efforts to directly assume custody of individuals in a secure,jail setting, ICE's dedicated law
enforcement personnel will continue to leverage the agency's resources and legal authorities to
identify, apprehend, and remove dangerous aliens from our Nation's communities.

Sincerely,

~-i
Russe;! itt
Field Office Director