Culpeper sheriff signs ICE agreement

Culpeper County Sheriff Scott Jenkins, left, signing an agreement in 2018 to enforce the 287(g) program through the office of U.S. Immigration and Customs Enforcement in the Culpeper County jail. Photo by Ian Chini/Culpeper Times

The Virginia Supreme Court upheld the local circuit court’s dismissal of a civil lawsuit over the Culpeper County Sheriff’s Office’s participation in a U.S. Immigration and Customs Enforcement program that allows sheriff’s deputies to notify ICE officials of illegal immigrants housed in local jails.

The lawsuit, filed in 2018 by county residents Michael V. McClary and Christina Stockton in coordination with the ACLU, claimed that the supposedly free program is funded with local tax dollars. 

Sheriff Scott Jenkins was a defendant because he entered into a 287(g) agreement with ICE that court documents state allow the Sheriff’s Office “to interrogate any person they detain about the person’s right to be or remain in the United States, to serve warrants for immigration violations, to administer oaths and take evidence to complete alien processing, to prepare charging documents, to issue immigration detainers, and to detain and transport arrested aliens who are subject to removal to an ICE-approved detention facility.” The 287 (g) agreement also states that the Sheriff’s Office “will exercise their immigration-related authorities only during the course of their normal duties.”

The Culpeper County Board of Supervisors was a defendant because it allocates funding to the Sheriff’s Office.

Culpeper County is now the only Virginia locality to participate in the program as Prince William County withdrew from an agreement with ICE in July. 

The lawsuit, which sought to force the Sheriff’s Office’s withdrawal from the agreement with ICE, was dismissed by a Culpeper County Circuit Court judge in July 2019 because the plaintiffs did not demonstrate how Jenkins acted outside of his authority. The plaintiffs' attempt to appeal that decision was unsuccessful, as Virginia Supreme Court Justice S. Bernard Goldwyn on Thursday penned an opinion stating the reasoning behind upholding the dismissal.

Goodwyn notes in the opinion that “the circuit court stated that because it had found Sheriff Jenkins acted lawfully, any appropriation by the Board to Sheriff Jenkins was likewise lawful.”

In appealing the circuit court’s decision, Goodwyn states that the plaintiffs claimed their complaint “‘explains how the Board collects their taxes and voluntarily appropriates that local tax money to Sheriff Jenkins with knowledge that he will use it to enforce federal civil immigration law’” and the plaintiffs also claimed that “they do not need to allege specific local costs or expenditures.”

Goodwyn explained, however, that in such lawsuits taxpayers must do more than identify policies with which they disagree and must include “allegations of costs or expenditures connected to the policies implemented.” He adds that the plaintiffs failed to identify “any additional expenditures, costs, or appropriations” by the local government constituting an actionable lawsuit. Instead of mentioning specific costs, he says the lawsuit included broad stroke allegations that did not identify “any discrete appropriation or payment by the local government in support of the policy they seek to prohibit.”

Goodwyn adds that the plaintiffs “merely identified a policy they disagree with and stated that any expenditure related to that policy were unlawful” and cited such “vague, speculative, and conclusory allegations” as reasons to uphold the dismissal.

In 2018, ACLU officials said that Virginia governments can only take actions authorized by the state Constitution or legislature, neither of which they said authorizes localities to voluntarily take on the responsibility of spending tax money to enforce federal immigration law directly. 

An Oct. 22 Sheriff’s Office Facebook post states that “the Virginia Supreme Court confirmed what people with common sense have known all along – the Culpeper Sheriff’s Office cooperation with federal law enforcement on illegal immigration is entirely appropriate under the law.”

Jenkins says in the post that he is “very pleased” with the decision.

“I knew I was right all along in my understanding of the 287(g) program, and am pleased that the Virginia Supreme Court has confirmed my understanding. I appreciate the enormous community support and will continue to do everything in my power to keep this community safe while upholding and defending our Constitution,” Jenkins said.

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