Virginia Governor Signs ICE Assistance Order

Virginia Gov. Glenn Youngkin (R) last week issued Executive Order 47, “Keeping Virginians Safe from Dangerous Criminal Illegal Immigrants”. In addition to declaring “Virginia is not a sanctuary state”, EO 47 directs the Virginia State Police and the state’s Department of Corrections to enter into so-called “287(g)” agreements with ICE, empowering them to assist the agency in immigration enforcement. The EO also asks localities in the Old Dominion to “fully cooperate” with ICE “removal and other enforcement operations”. We’ll see how that works out — but I doubt many Northern Virginia “sanctuary” jurisdictions will comply.

State and Local Assistance under Section 287(g) of the INA

Congress provided for such agreements in 1996, when it amended the Immigration and Nationality Act (INA) to add a new section 287(g), captioned “Performance of immigration officer functions by State officers and employees”.

It allows the DHS secretary to “enter into a written agreement with” states and localities pursuant to which their officers, as supervised by DHS, can investigate, apprehend, and/or detain aliens — that is, engage in immigration enforcement.

There are training and other requirements for those state and local officers, naturally, but these 287(g) agreements enable state and local cops to serve as force multipliers for ICE and they save state and local jurisdictions enforcement costs by moving recidivist criminals off of the streets and out of the country.

As my colleagues Jessica Vaughan and Jim Edwards noted in an October 2009 report on the program, California Rep. Chris Cox (R) played a key role in ensuring section 287(g) would be included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). They explained that Cox:

was sensitive to the pleas of local law enforcement, who were being overwhelmed by the number of illegal and criminal aliens causing problems in their jurisdictions; received too little response from the [Immigration and Naturalization Service, “INS”] (which was understaffed, underfunded, and disorganized); and needed additional training, authority, and leverage to get the INS’s cooperation instead of a cold shoulder.

Those issues are part of the reason why INS is now defunct, having been abolished by section 471 of the Homeland Security Act of 2002, which created DHS. That former agency’s immigration enforcement duties are now split between CBP (at the border and the ports) and ICE (in the interior).

In any event, there are now three “program models” that ICE implements under its 287(g) program.

The first is the “Jail Enforcement Model”, which “is designed to identify and process removable aliens — with criminal or pending criminal charges — who are arrested by state or local law enforcement agencies” while they are in pretrial detention and state or local incarceration.

The second is the “Task Force Model”, which allows state and local law enforcement agencies “to enforce limited immigration authority with ICE oversight during their routine police duties”.

Thus, for example, if in the course of an investigation of an individual on state charges, a cop determines the suspect is an alien subject to removal, that cop can take the alien into custody and hand the suspect over to ICE.

The third model is the “Warrant Service Officer program”. As ICE explains, it uses this model “to train, certify and authorize state and local law enforcement officers to serve and execute administrative warrants on aliens in their agency’s jail”.

EO 47

In the executive order, Youngkin explains that:

A commitment to public safety demands that the Commonwealth recognize that the nexus between illegal immigration and dangerous criminal activity is real, particularly in an era marked by rising transnational criminal organizations, criminal street gangs, human trafficking, the distribution of illegal narcotics including fentanyl, and crimes of violence linked to these clear and emerging threats.

Those who are not familiar with Virginia may not think of it as a criminal alien hotspot, but as the governor explains, nearly 950 criminals in state custody on the day that he issued the order had ICE detainers.

Shockingly, according to EO 47, “nine out of every ten of these detainees are for violent criminals. Among them, four out of ten have been identified as rapists and sexual assailants, and two out of ten are classified as murderers.” Not the sorts of folks most law-abiding citizens would want hanging around.

Under EO 47, State Police will enter into a section 287(g) “Task Force Model Memorandum of Understanding” (MOU) with ICE. That MOU, in turn, “will create a State Police Task Force of federally deputized troopers to assist in the identification and apprehension of criminal illegal immigrants who pose a risk to public safety throughout” Virginia.

The Department of Corrections, for its part, is directed to enter into a section 287(g) Jail Enforcement Model MOU, which “will allow the use of multiple detention and processing facilities throughout” Virginia and also “train corrections officers to be assigned as Designated Immigration Officers”.

While immigrant advocates often blindly complain about ICE detention in local jails and prisons, it actually benefits aliens in removal proceedings, who would otherwise be shipped far away from their families and lawyers throughout the removal process.

“Full Cooperation with ICE”

Perhaps most notably, the executive order:

requires the Secretary of Public Safety and Homeland Security to contact every Director, Sheriff, or other official in charge of a local or regional jail in the Commonwealth of Virginia to certify their full cooperation with ICE in all Enforcement and Removal Operations and stating that they will cooperate with the Section 287(g) VSP Task Force.

I say “notably” because up until the issuance of that order, no jurisdiction in Virginia was participating in 287(g), and many commonwealth Democrats (in particular) are openly hostile to ICE enforcement.

For example, Scott Surovell (D), majority leader in the Virginia state senate, derided Youngkin’s action as a “political stunt”, and argued: “The governor does not have authority to tell local police what to do, and our local law enforcement does currently cooperate with ICE.”

The Fairfax County “Trust Policy”

By “our local law enforcement”, Surovell is apparently referring to the law enforcement authorities in senate district 34, which he represents, in Fairfax County, outside Washington, D.C.

Fairfax denies it is a “sanctuary county” (few admit such), but it does have a “Trust Policy” that “contains specific standards to ensure that employees do not voluntarily cooperate with enforcement of federal civil immigration laws”.

As the Fairfax Times reported in August 2024, “Under the policy, residents who are illegally in the United States and arrested for crimes are being released back into the community rather than being turned over to” ICE.

The Trust Policy became an issue last summer when it was revealed that one of three suspects arrested in Fairfax for “malicious wounding by a mob” in connection with the death of 47-year-old Nicacio Hernandez Gonzalez had previously been the subject of multiple ICE detainers, none of which the county honored.

Nevertheless, in advance of Trump’s second inauguration on January 20, local officials rushed to assure aliens unlawfully present in Fairfax County that they would not assist ICE enforcement.

For example, Jeff McKay, chairman of the Fairfax County Board of Supervisors, told NBC4 Washington in a mid-January interview: “What I’m going to be continually reiterating to folks is that county employees are not federal immigration officials. … Immigration policy and enforcement has always been and must always be the role of the federal government”.

Perhaps Youngkin should put McKay down as a “maybe” for ICE assistance.

“That, Of Course, Is a Dodge”

If the Fairfax Trust Policy sounds familiar, it may be because I discussed the policy in August 2020 after a suspect wanted for murder in the county was apprehended by Border Patrol agents hiding in the toilet of a bus headed north near Las Cruces, N.M.

Quoting a passage in the policy that states, “The federal courts have determined that the enforcement of civil immigration laws is solely a federal responsibility under the exclusive authority of ICE”, I explained:

That, of course, is a dodge. One would also have to look long and hard to find a case that states that pulling Fairfax County’s accused murderers out of the john on a bus in New Mexico is a duty of the Border Patrol, too. Fairfax County could assist in immigration enforcement if it wanted to, such as by participating in the successful 287(g) program. Of course, it doesn’t, because why would Fairfax County want to take alien criminals off the street?

Fairfax County is not alone among Northern Virginia sanctuary jurisdictions. Arlington County also denies it is a sanctuary, but its website makes clear that it “does not enforce federal immigration law”.

Alexandria also disclaims sanctuary status, but its website proclaims: “Beyond what is required by state and federal law, the City and its various agencies will neither make inquiries about nor report on the citizenship of those who seek the protection of its laws or the use of its services.”

Back in December, Youngkin threatened to cut off state funding to any jurisdiction that refuses to comply with ICE enforcement requests, but his budget proposal is likely dead on arrival in the Virginia state legislature, where Democrats narrowly control both the Senate and the House of Delegates.

That said, there are plenty of other counties and cities in the southern and western parts of the state that are likely anxious to help out. Trump romped in many of those jurisdictions during the 2024 election, and officials there are much more aligned with his “mass deportation” views.

Gov. Youngkin can’t force every local official in Virginia to assist ICE — only the voters can do that. But he is making it easier for the agency to take dangerous criminal aliens off the streets by enlisting state troopers and corrections officials in its immigration-enforcement efforts. For that, law-abiding Virginians should be grateful.