Prince William County, Virginia’s immigration policy is getting attention from state legislators in Richmond. I would like to put politics aside, in favor of a legal comparison with Arizona’s law. I begin with some current information regarding Arizona’s law, before comparing Prince William County, Virginia’s practices.
Arizona’s Federal court partially enjoined Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act.” This is a 2010 Arizona State Law. The U.S. government sued Arizona because Section 2(b) required police to check immigration status of everyone arrested in Arizona. Arizona admitted it would overburden the Federal database to check everybody arrested. Keep in mind you are legally “arrested” every time you are stopped in traffic. Arizona’s lawyers tried to say arrestees the state reasonably suspected as illegal would be checked. The federal judge scoffed at this, after looking at the law’s history. The court held Arizona would burden Federal Resources if it required immigration checks upon arrest.
Prince William County (“PWC”), Virginia’s July 2007 resolution would have required immigration checks for arrestees if there is “probable cause” they were illegally present. Probable cause is a higher standard than reasonable suspicion, mentioned above. An analogy is that murder is a higher standard than manslaughter. But PWC, Virginia weakened the resolution in April 2008, without enacting the version closer to Arizona’s law. PWC mandates immigration checks after (1) the arestee is taken into custody, and (2) there is probable cause to question immigration status. However, in a non-custodial arrest (e.g. traffic stop), the officer may perform an immigration check if there is probable cause to question immigration status.
By contrast, Section 6 authorizes Arizona officers to make a warrantless arrest of a person they have probable cause to believe committed a public offense that qualifies for deportation. Section 6 applies to aliens who committed a crime outside Arizona and then enter Arizona with a “public offense” on their record. This is too complex an analysis for police in the field. Plus, the law did not require officers to contact the Department of Homeland Security before deciding whether the offense made the alien deportable.