I spent 24 years as an immigration officer, and before I retired, I helped run ICE’s deportation operations in New York City, and a good share of the work started with a jail that let someone go without telling us. So, when staff from the House Judiciary Committee issued a report, “Fairfax County, Virginia: The Dangerous Consequences of Sanctuary Policies”, on October 20, one line jumped out at me. The sheriff's office told committee staff that, “despite state law explicitly authorizing compliance with ICE detainers within five days of a criminal alien’s release from custody, the office does not notify ICE about an alien’s pending release” when that alien is about to walk out the door.

Most people have never seen an immigration detainer, so it’s worth explaining.

A detainer is a request. ICE tells the jail it has probable cause to believe a person in custody is a removable alien and asks for two things: a heads-up before release, and a hold of no more than 48 hours under federal regulations at 8 C.F.R. § 287.7, so immigration officers can make the arrest inside the jail instead of on the streets.

Under her office’s policies, Fairfax County Sheriff Stacey Kincaid refuses detainer holds unless ICE brings a “judicial immigration warrant”.

Immigration removal, however, is a civil matter, and Congress set it up so immigration arrests are made on administrative warrants under section 236(a) of the Immigration and Nationality Act (INA).

A judicial warrant, by contrast, is generally available only when the subject is charged with a federal crime, and in May, former Virginia Attorney General Jason Miyares told the House immigration subcommittee that it is impossible for ICE to obtain one for most criminal aliens sitting in county jails, and that the officials demanding them know that.