On May 14, the House Judiciary Committee’s Subcommittee on Immigration Integrity, Security, and Enforcement held a hearing titled “Fairfax County, Virginia: The Dangerous Consequences of Sanctuary Policies”. The witnesses included current Fairfax Commonwealth’s Attorney Steve Descano (D), former Virginia State Attorney General Jason Miyares (R), and Cheryl Minter, whose daughter Stephanie Minter was stabbed to death in the county in February, allegedly by an illegal alien from Sierra Leone. Not surprisingly, there were fireworks, and one poignant mother’s plea. Here are some key takeaways.
Fairfax’s Policies
In his opening statement, Subcommittee Chairman Tom McClintock (R-Calif.) complained about Fairfax County policies that, he contended, treat criminal aliens more leniently than native-born criminals, and described those policies as a “perversion of equal justice under law”.
Those are similar to points I’ve made of late, referencing archived portions of prosecutor Descano’s campaign website in which he averred that, “If two people commit the same crime, but only one’s punishment includes deportation, that’s a perversion of justice and not a reflection of the values of Fairfax County,” and promised to “take immigration consequences into account when making charging and plea decisions”.
In response to questioning by Judiciary Committee Chairman Jim Jordan (R-Ohio), Descano denied that the vows on his campaign website reflected his official stance, contending instead that “the website is not my policy”.
When Jordan asked Descano why he changed his campaign website on these points after he received a notice from the committee, the flustered commonwealth’s attorney explained it was because he “could not believe that people were so obtuse they could not realize what the difference [is] between a campaign statement and actual office policy”.
At the end of the day, it wasn’t entirely clear what Descano’s policies are vis-à-vis the prosecution of criminal aliens in Virginia’s most populous county, nor whether the commonwealth’s attorney was describing the chairmen as “obtuse”, or his constituents.
“Judicial Warrants”
As I have explained multiple times in the past, one key dodge employed by sanctuary jurisdictions is contending they’ll gladly turn their criminal aliens over to ICE, provided the agency serves the locality with a “judicial warrant” for the immigrant suspect.
McClintock asked Miyares whether a “federal judicial warrant is possible to obtain in a state crime”, to which the former state AG responded, “No — it’s not, and they know this.”
The subcommittee chairman continued, querying “And if deportation is a civil matter, how does one get a judicial warrant?” Miyares in turn replied: “You can’t — again they know this.”
Summarizing the exchange, McClintock stated: “So, they’re basically lying to the public. They’re counting on the public not understanding what they are asking for is legally impossible,” a statement Miyares confirmed.
Law is, admittedly, complicated, which is why to practice law you must complete about 19 years of schooling, pass the bar exam, and avoid numerous ethical pitfalls while finding enough clients to keep the lights on.
Television and movies, however, provide a vision of legal practice and procedure that rarely translates into real-world experience, though personally I would not pay to watch a 28-year-old chug coffee at 3 AM over a teetering pile of paper.
Certain legal concepts in those dramas do exist in the actual legal world: courts are real tribunals, judges wear robes, subpoenas are issued, and there are instances in which investigators and prosecutors can seek warrants.
Because — as McClintock alluded to — immigration is a civil, not criminal, matter, the same constitutional standards that apply to the former don’t apply in the same way as they do to the latter, and the warrants ICE officers rely on in civil “deportation” cases are different from those required in the criminal context.
Section 236(a) of the Immigration and Nationality Act (INA) governs civil immigration warrants, and it provides ICE officers the authority to take custody of aliens — criminals and otherwise — “pending a decision on whether the alien is to be removed from the United States” using “a warrant issued by” DHS, i.e., an “administrative warrant”.
As the regulation implementing that provision explains:
At the time of issuance of the notice to appear or at any time thereafter and up to the time removal proceedings are completed, the respondent may be arrested and taken into custody under the authority of Form I-200, Warrant of Arrest.
The “notice to appear” or “NTA” is the charging document in removal proceedings, like a statement of charges or complaint in a criminal matter, and the term “respondent” describes an alien in removal proceedings in much the same way as a “defendant” is a person being criminally prosecuted.
And, by regulation, only a limited number of federal DHS officers are accorded the authority to issue administrative immigration warrants.
In other words, administrative warrants aren’t mere claims an individual is a removable alien; they are the end result of a process in which an ICE officer must show: (1) that the individual named in the warrant is an alien; and (2) that the alien is removable on one or more of the grounds of inadmissibility in section 212(a) of the INA or deportability in section 237(a) of the INA.
Because ICE officers have the statutory authority to make arrests using administrative warrants under section 236(a) of the INA, there is no mechanism that allows them to ask an Article III court to issue a different kind of “judicial warrant”.
If advocates were really concerned about the protections provided by the way those administrative warrants are issued, they could, I suppose, demand that the regulatory authority for issuing warrants be transferred to immigration judges at DOJ’s Executive Office for Immigration Review (EOIR).
Immigration judges are, by statute, attorneys and as such subject to special ethical restrictions, and respectfully (having done the job) are better able to determine whether an individual is an alien who is subject to removability from the United States than almost any federal Article III judge.
The reason sanctuaries don’t demand such a change, however, is that they prefer to premise compliance with ICE on the agency’s presentment of a “judicial warrant” because it is a legal impossibility. They might as well demand water from the moon, or a vial of unicorn blood, or a decent crabcake outside Delmarva — the result would be the same.
As my colleague Dan Cadman has explained, however, there is a variety of civil judicial warrant ICE could potentially provide in response to such demands, known as a “Blackie’s warrant” after a once-popular D.C. steakhouse that became a test case for immigration-related warrants in the worksite-enforcement context.
If ICE were to secure a Blackie’s warrant to go into the Fairfax County lockup, however, there is no reason why officers would be limited in their actions once there. They could question every prisoner as to that individual’s alienage and right to remain in the United States, and if that is a game Descano or any other sanctuary grandee wants to play, so be it.
While it could fracture the comity between federal and local law-enforcement officials, lower level officers of all stripes would likely love it — and it would definitely send a message that it’s easier to simply comply with the process Congress created in section 236(a) of the INA than to ignore the powers the legislative branch has granted the executive.
“100,000 Fairfax Residents Are Illegal Immigrants”
David J. Bier, the “Selz Foundation Chair in Immigration Policy at the Cato Institute”, also appeared at that hearing, and he made some astounding claims, including that a third of Fairfax County residents are “foreign-born”, “nearly one-half of the residents are from immigrant families”, and “Over 100,000 Fairfax residents are illegal immigrants, and nearly 20 percent of the county is here illegally or lives in a household of someone here illegally.”
His written testimony appears to suggest that Fairfax’s status as “one of the most prosperous, safest counties in the entire country” is somehow (or directly) attributable to one or more of those factors, but likely its wealth and success is more due to its proximity to the Nation’s Capital and the gravy that has oozed out of D.C. over 40-plus years of unprecedented federal spending than anything else.
But then, while like Bier I too have been a “senior policy advisor” as a staffer on the House Judiciary Committee, I have never been the “Selz Foundation Chair in Immigration Policy at the Cato Institute”, so perhaps there is something I am missing.
In any event, 100,000 “illegal immigrants” – the majority likely unknown and unvetted — in a county with a Census-estimated population of 1,167,873 (as of July 2025) means roughly 8.6 percent of the folks in Fairfax are here illegally, and if one-in-five households there include an illegal alien, there’s likely a reason Descano made the promises about disparate treatment of criminals based on alienage he did while campaigning (and why he thought it was okay to do so).
With due respect to Selz Foundation Chair Bier and like-minded individuals, a massive, unauthorized population is not a recipe for success for any polity, if for no other reason than it makes those individuals uniquely vulnerable to criminal predation — usually, though not exclusively at the hands of the criminal aliens who were the subject of the hearing.
Then there’s the fact that all those largely “unknown and unvetted” aliens are living near (within a roughly 20-mile radius) key federal government installations and institutions.
Mistily, Bier contended that “Immigrants come for freedom — freedom to work for us and with us, to improve our lives, and they will play critical roles in America’s economic vitality in the future,” but (again respectfully), that’s no truer than claiming that “immigrants are all here to exploit America”, or that “all aliens are criminals” — that is, not true at all.
Reasons to Enforce the Law
Some immigrants do “come for freedom” and to become productive members of our society (ideally the legal ones fall in that class), but based upon my actual real-world experience in this area, I can assure you that aliens come to here for as many reasons as there are aliens — and not all those reasons are benign, let alone productive.
The Immigration and Nationality Act is the product of decades of congressional investigations, reviews, and debates, and thus it should be beyond cavil that the nation would be better off if it were enforced as written — regardless of what local politicos may promise, or what so-called experts may believe.
Minter’s testimony ended simply: “Make changes. Take responsibility. Protect your community. Because no mother should ever have to wake up to this nightmare.” One would have to be heartless and “obtuse” to ignore this maternal plea. Let’s hope Congress — and Fairfax County — take it to heart and start putting innocent people over political gain.