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2015 Op. Va. Att'y Gen. 1 (2015)

handle is hein.sag/sagva0131 and id is 1 raw text is: 

                          COMMONWEALTH of VIRGINIA

                                           Office of the Attorney General
Mark R, Herring                                                                                   900 East Main Street
Attorney General                                              5Richmond, Virginia 23219
                                                                                                   FAX 804-786-1991
                                                                                                Virginia Relay Services
       The Honorable Ken  Stolle                                                                             7-1-1
       Sheriff, City of Virginia Beach
       Post Office Box 6098
       Virginia Beach, Virginia 23456-9073

       Dear Sheriff Stolle:

              I am responding to your request for an official advisory Opinion in accordance with § 2.2-205 of
       the Code of Virginia.

                                                Issues Presented

              You  seek guidance regarding requests from the federal Department of Immigration and Customs
       Enforcement  (ICE) that a local or regional law enforcement  agency continue to  detain otherwise
       releasable prisoners because of the person's immigration status. These requests are commonly known as
       ICE detainers. Specifically, you ask whether the local agency is required to honor an ICE detainer, has
       discretion to honor it or not, or alternatively, whether the agency is legally obligated to release the prisoner
       despite receipt of the detainer. You make these inquiries with respect to both adult and juvenile detainees.


              It is my opinion that an ICE detainer is merely a request. It does not create for 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. For that reason, an adult inmate or a juvenile inmate with a
       fixed release date should be released from custody on that date notwithstanding the agency's receipt of an
       ICE detainer. If a juvenile is being held pursuant to an indeterminate commitment, the Department of
       Juvenile Justice (DJJ) may exercise its discretion to hold the juvenile until ICE officials assume custody,
       provided DJJ does not hold the juvenile longer than thirty-six continuous months or past his twenty-first

                                         Applicable Law  and Discussion

              As  governed by  federal regulation 8 C.F.R § 287.7, an ICE detainer is a notice issued by an
       authorized immigration officer that serves to advise another law enforcement agency that the Department
       [the Department of Homeland   Security, hereinafter DHS] seeks custody of an alien presently in the
       custody of that agency, for the purpose of arresting and removing the alien.' The detainer operates as a
       request that such agency advise [DHS], prior to release of the alien, in order for [DHS] to arrange to
       assume  custody, in situations when  gaining immediate  physical custody is either impracticable or

'8 C.F.R. § 287.7(a).

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