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.
Kincaid adopted that “legally impossible” (in Miyares’ words) condition on her own, telling ICE in a January 2022 letter that her office would “not honor any requests to detain individuals subject to an administrative detention request unless there is a corresponding lawfully issued criminal detainer.” (Emphasis added.)
And then, under the Biden administration in March 2022, she stopped giving ICE advance notice of releases.
No Virginia law required either action, but this year the state General Assembly caught up with her.
Virginia state House Bill (HB) 1441 and Senate Bill (SB) 783 — collectively known as the “Virginia Community Safety & Trust Act”, which took effect on July 1 — bar state and local officers, with narrow exceptions, from assisting civil immigration enforcement unless ICE produces a judicial warrant or judicial subpoena.
The Legal Aid Justice Center (LAJC), which backed the law, put out a “Community Explainer” urging residents to press sheriffs to refuse ICE detainers and require judicial warrants instead. An advocacy group’s demand is now statute.
The Department of Justice (DOJ) filed a complaint in the U.S. District Court for the Eastern District of Virginia in June, challenging a provision in the law it contends “conflicts with and stands as an obstacle to ... the information sharing scheme contained in 8 U.S.C. § 1373 and 8 U.S.C. § 1644”, two provisions the Center’s George Fishman examined in February.
You can debate ICE holds past a local detainee’s scheduled release date. Phone calls between law enforcement agencies are a different matter.
Telling ICE when a criminal alien is getting out seizes no one and keeps nobody in a cell one minute past his release time. The jail already has the information. But according to the committee report, the sheriff’s office confirmed to staff in March, months before the new state law took effect, that it does not give ICE that notice.
In January 2024, responding to ICE criticism of its release of a Honduran national facing child sexual abuse charges, the sheriff’s office said it “follows all local, state, and federal laws regarding the holding of inmates on outstanding detainers and warrants and routinely works with all public safety agencies to ensure the safety of” the community. Okay, except the sheriff’s policy statement referenced above singles out just one agency, and it’s ICE.
The Constitution doesn’t let a state regulate the federal government directly or single it out for discriminatory treatment. The Supreme Court restated that in 2022 in U.S. v. Washington.
In its June suit, DOJ argued Virginia’s new law does both, and in an August 31 order, Judge Robert Payne concluded that the statute directly regulates federal law enforcement in violation of intergovernmental immunity doctrine, and barred the Commonwealth from enforcing it against federal agencies or existing ICE partnerships.
Figures that the sheriff’s office provided to the committee reveal it declined at least 1,670 ICE detainers from 2023 through 2025, while ICE data provided to the committee shows sanctuary jurisdictions nationwide declined at least 41,085 detainers between October 2022 and early 2026.
The committee says the real count is probably higher, because ICE often doesn't learn a detainer was ignored until it runs into the person again.
Roni Mendez-Escobar, a Guatemalan national, was arrested in Fairfax County in October 2025 on felony child pornography charges. DHS reports he had been deported three times previously and that ICE lodged a detainer on October 23, but that Fairfax County refused to honor that detainer and released him on October 27 without notifying ICE. Federal agents picked him up in April after a court appearance.
In September, Mendez-Escobar was sentenced to six years and five months in federal prison on immigration and child sexual abuse charges.
You don’t have to trust DHS when it comes to another alien, Marvin Morales-Ortez. He was arrested in September 2025 on malicious wounding and brandishing charges, and the Fairfax County Sheriff's Office itself confirmed it received an ICE detainer on September 14.
On December 16, prosecutors dropped those charges after the victim declined to travel to testify, and the jail released him. The next day, police charged him with second-degree murder in a fatal shooting in Reston.
Kincaid told the committee she has no say “in the prosecution of any inmate”. That's true, but it’s also exactly why notification matters. Once local charges were off the table, a call to ICE was the last safeguard left, and her policy took it off the table. She also wrote that “the system must work as a whole”. I agree with her — and ICE is a key part of that system.
Fairfax County isn’t alone. States and localities around the country have adopted the same “judicial warrant” condition, and Virginia has now written it into law. A demand advocacy groups pushed is being sold to the public as a legal necessity. Twenty years ago, a sheriff who refused to even call ICE would have been rolled over in a week.
DOJ has already sued Virginia and named Fairfax County’s top prosecutor as a defendant. It should keep going and take every jurisdiction that treats ICE worse than other law enforcement agencies to court. Congress should pass H.R. 7640, the Shut Down Sanctuary Policies Act, which the Judiciary Committee has already reported, and make release notification a condition of federal law enforcement funding.
Sheriff Kincaid: Do better for the people of Fairfax County.