Virginia sheriff’s office accused of constitutional violations to cancel controversial ICE contract

The announcement comes on the heels of a ThinkProgress investigation.

CREDIT: Salwan Georges/The Washington Post via Getty Images
CREDIT: Salwan Georges/The Washington Post via Getty Images

The Fairfax County Sheriff’s Office in Virginia is canceling a controversial detention contract with federal immigration authorities and will no longer hold people in jail past their release date for Immigration and Customs Enforcement (ICE) unless the request is accompanied by a court order, according to a statement released Tuesday by Fairfax County Sheriff Stacey Kincaid.

Under mounting pressure from the community and legal experts who said the practice raised serious questions about potential constitutional rights violations, Kincaid notified ICE officials in a meeting Monday that the agency was terminating its federal bed-for-rent detention contract.  

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The decision comes on the heels of a ThinkProgress investigation published last month that found that the number of people the sheriff’s office held in jail and turned over to ICE had more than doubled last year: 663 people in 2017 from January to October, compared to just 258 people for all of 2016.

“We intend to comply with all federal obligations as they pertain to ICE. The current contract is not necessary for us to do this as evidenced by the fact that the vast majority of localities in the Commonwealth have no contractual arrangement. We found it expedient to no longer have an agreement that required us to extend our resources beyond these obligations. We remain committed to our mission and mandate,” Kincaid said. 

Legal experts told ThinkProgress that the sheriff’s department was denying immigrants their liberty without probable cause, a fundamental right enshrined in the Fourth Amendment, and they praised Kincaid’s decision as a positive first step.

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“Fairfax is finally coming into compliance with the law. They’re no longer going to be breaking the law by holding people past their release dates without any legal authority,” Simon Sandoval-Moshenberg, legal director of the Immigrant Advocacy Program at the Legal Aid Justice Center in Virginia, said. It’s a great first step toward actually living the principles that the county purports to endorse about fairness to immigrant communities.”

The ACLU of Virginia also commended Kincaid’s decision. In 2014, the ACLU warned sheriffs, jail officials, and state corrections officials throughout Virginia that jailing individuals for ICE without probable cause and without a court order violates the constitution. The ACLU also worked actively with community organizations and immigrant advocates to mobilize community members to speak out at public forums, write letters, make phone calls, send emails, and tweet at the sheriff.

“We applaud Fairfax County Sheriff Stacey A. Kincaid for making the right decision and terminating Fairfax’s Intergovernmental Service Agreement with ICE. In doing so, she has taken a good first step in slowing the rising tide of over detention through capricious immigration enforcement,” Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said in a statement sent to ThinkProgress and shared on social media.

While the sheriff’s office noted on its website that the agency was required to provide 120 days notice to ICE of its intent to cancel the contract — making May 23, 2018 the official termination date — Sandoval-Moshenberg noted that this would not preclude Kincaid from enforcing the decision today.     

“They can and should today decline to keep holding people. They don’t need to keep going with their current practice for 150 days just because it takes 150 days to get out of a contract,” said Sandoval-Moshenberg.  

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The Fairfax County Sheriff’s Office used the contract as part of a procedure that involved waiting for a person’s local charge to be  adjudicated — they are either charged with a crime and held or released — then re-booking the person for immigration authorities using an ICE civil arrest warrant.

The sheriff’s office then held detainees for up to 48 hours past their release date under the auspices of the detention contract, so that ICE could pick them up.  

However, the ICE “warrant” is just an administrative document; they are not judicial warrants, documents issued by a judge or magistrate who use facts to determine probable cause to arrest a person. Half a dozen legal experts told ThinkProgress that the Fairfax County Sheriff’s Office was taking a legal gamble by keeping people in jail using just the ICE warrant and detention contract.

In Fairfax County, the procedure overwhelmingly impacted Latino detainees, and is similar to a procedure federal officials are using to ramp up detainments in county jails nationwide as a way to funnel immigrants into the deportation pipeline. Sandoval-Moshenberg noted an ICE announcement last week expanding the procedure in Florida confirmed what legal experts expected about the increased use of the detention contract.

“They really make quite clear that these intergovernmental contracts seem to be the wave of the future in terms of ICE jail-house enforcement,” said Sandoval-Moshenberg. “It’s really important that jurisdictions like Fairfax are stepping away from those contracts and recognizing that both from a legal perspective and from a ‘is this good, do we want to be doing this perspective,’ the answer to both is ‘no’.”

Sandoval-Moshenberg said he believed the ThinkProgress investigation is likely “the straw that broke the camel’s back” in Kincaid’s decision. 

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“The fact that the number of ICE turnovers had doubled in one year, that really fell like a bombshell in Fairfax County. People were talking about that lot,” said Sandoval-Moshenberg. “And people were saying, wait a second, how is it that this county — that had passed a resolution back in January saying that we welcome all of our immigrant neighbors — when it comes to actually working hand in glove with ICE has doubled its cooperation. That doesn’t reflect who we are.”