Virginia Enacts Protections Regarding Immigration Status in Criminal Proceedings

The Virginia General Assembly has enacted protections regarding the immigration status of individuals in certain criminal investigations.

Seal of Virginia

 

Crime Victims

Beginning on July 1, 2020, law enforcement officers in Virginia will not be allowed to ask about the immigration status of a person who:

  1. reports that he is a victim of a crime or a parent or guardian of a minor victim of a crime, or
  2. is a witness in the investigation of a crime or the parent or guardian of a minor witness to a crime.***

However, there are some exceptions.  Law enforcement officers will be allowed to inquire about immigration status if the parent or guardian has been arrested for, has been charged with, or is being investigated for a crime against the minor victim.

Law enforcement officers will also be allowed to inquire about immigration status in order to enforce specific laws regarding extortion, concealed handgun permits, and the transfer of firearms (Virginia Code Sections 18.2-59, 18.2-308.09, and 18.2-308.2:2).

  • Virginia Code Section 18.2-59 makes it illegal to extort money or property by threatening to report someone as being illegally present in the United States, or by destroying, hiding, withholding, or threatening to withhold, that person’s documentation (passport, immigration document, or any government identification document).
  • Virginia Code Section 18.2-308.09 (10) prohibits undocumented individuals from obtaining a concealed handgun permit unless they have been lawfully admitted for permanent residence in the United States.
  • Finally, Virginia Code Section 18.2-308.2:2 (B1), prohibits firearms dealers from selling, renting, trading, or transferring assault firearms to any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence.

Mandatory Reporting of Criminal Suspects

Starting on July 1, 2020, several Virginia laws that required mandatory reporting of criminal suspects to the Bureau of Immigration and Customs Enforcement of the U.S. Department of Homeland Security are now limited to felony cases only. Previously, Virginia law required reporting of all detainees, regardless of the degree of the offense, by the following officials:

  1. jail officers, to ascertain the citizenship of any inmate taken into custody at a jail,
  2. officers in charge of correctional facilities, to inquire as to the citizenship of any person committed to a correctional facility, and
  3. court clerks, committing a convicted alien to a correctional facility.

The new law requires the clerk of court to report any juvenile found guilty of committing a violent juvenile felony.  The prior version of the statute was not limited to cases in which the juvenile was found guilty.  Instead, it required the intake officer to report every juvenile who was alleged to have committed a violent felony if the intake officer had probable cause to believe that the juvenile was in the United States illegally.

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*** The text of the new statute, Virginia Code Section 19.2-11.02, is available here: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0273, and the legislative history is available here: https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB262.