Special Investigation: Immigration’s Due Process Dispute

NEWPORT NEWS, Va. (WAVY) - As President Donald Trump moves forward with his agenda, local governments face pressure to enforce federal immigration laws, or risk being labeled "sanctuary cities" and losing federal funding.

10 On Your Side investigated how Hampton Roads' seven cities interact with federal Immigration and Customs Enforcement (ICE) agents, and whether any jurisdiction is at risk of losing federal funding. The result: All seven cities could be, depending on how Trump's administration chooses to define a sanctuary city.

In February, ICE published a list of local governments who do not comply with requests from agents to hold immigrants of questionably legal status for up to 48 hours past their release date.

Newport News made that list, prompting Sheriff Gabe Morgan to defend his city, department and relationship with federal laws.

"We're doing what's right and their characterization of us as a sanctuary city or non-compliant is garbage," Morgan said of the list. "It's just a bullying tactic and it's very easy for them to fix this."

The fix, Morgan explained, is to get the detainer requests signed by a judge or magistrate, just like every other warrant.

Detainer requests are signed only by an ICE agent, a strategy that Morgan and Virginia Beach Sheriff Ken Stolle said violates a person's constitutional right to due process.

"[It's] just like if a police officer brought someone into the jail and said, 'I want you to hold this guy for 48 hours while I do an investigation,'" Stolle said. "The public would go crazy if we did that. Well, that's the same thing that's happening here."

Although Newport News was the only Hampton Roads city to make ICE's list of non-compliant cities, its policy is no different than the six others.

"I thought that was extortion," Stolle said of the list. "I think clearly, they knew we didn't have legal authority to do that."

Representatives for jails and sheriff’s offices in Hampton, Suffolk, Norfolk, Chesapeake, Virginia Beach and Portsmouth all said they cannot legally comply with ICE detainer requests.

Law enforcement in all seven cities said they communicate clearly and cooperate to the full extent of the law with federal immigration agents. They notify ICE when a non-citizen is in custody, and again five days prior to the inmate’s release date, when an agent is allowed to pick them up for deportation. ICE agents have been picking up more inmates under the Trump administration, Stolle said, but regardless of who is in power, he will not hold them past their release date.

Morgan and Stolle strongly reject the idea that Newport News or Virginia Beach are sanctuary cities simply because they don't comply with detainer requests. Both confirmed they would honor the requests if they were signed by a judge or magistrate.

"Make it legal, and I'll hold them," Morgan said. "Threatening to take my money or federal funds, threatening me by putting me on some list, is not enough to force me to violate the Constitution."

Jail administrators in all seven cities defer to a 2015 advisory opinion issued by Attorney General Mark Herring, which said detainer requests do not give "a law enforcement agency either an obligation or legal authority to maintain custody of a prisoner who is otherwise eligible for immediate release from local or state custody."

The opposing positions of the state and federal government could end up costing taxpayers, regardless of which position local law enforcement agencies take.

If the Trump administration broadly defines sanctuary cities as any that do not fully comply with all demands by ICE, and carries out the threat to pull federal funding from those areas, all of Hampton Roads is at risk.

But if sheriffs do comply with ICE detainer requests, they put themselves and their communities at risk of litigation. Henrico County taxpayers will almost certainly lose money Tuesday, when the sheriff's office is set to settle a lawsuit filed by a man held past his release date under an ICE detainer request.

ICE has stopped publishing lists of non-compliant jurisdictions, because its reporting was sometimes inaccurate, including in Newport News’ case. A statement on the agency's website, however, calls it only a temporary suspension.

Meanwhile, ICE spokesperson Carissa Cutrell called the detainer requests "legally authorized" in an email, and explained that agents issue them because they cannot always pick up inmates in the hours before they bond out.

"ICE's Norfolk office oversees immigration enforcement across southeastern Virginia and the Eastern Shore, and due to limited resources, it is not always feasible for ICE officers to transfer an alien to the agency's custody within the three-hour window. Not honoring ICE detainer requests undermines ICE's ability to protect public safety and carry out its mission. It also poses a public safety threat to the local community."

But ICE's lack of resources is not enough to make Stolle or Morgan budge on their position.

"You can't bend the Constitution for administrative problems," Stolle said. "If we do that, we'll start doing it in all areas and no one will have their right to due process."

Political pressure won't work either, said Morgan, whose records show he did not comply with detainer requests during the previous administration.

"I didn't do this when Obama was in office, and I'm not going to do this when Trump is in office," Morgan said. “At the end of the day, my oath is to the Constitution, and not to a particular administration."

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