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Fairfax County Commonwealth’s Attorney Steve Descano is standing behind a policy that asks prosecutors to consider the immigration consequences defendants may face, despite a new U.S. Department of Justice investigation into possible civil rights violations.
Laura Birnbaum, chief of staff for Descano’s office, called the investigation part of a broader pattern of partisan attacks by the Trump administration. She said the DOJ’s letter misrepresented a publicly available policy that has been in place for more than five years and arrived one week before Descano was scheduled to testify before Congress.
Birnbaum said the office’s policies are legal, fair and consistent with Fairfax County’s values. She added that prosecutors would remain focused on public safety and holding people accountable for crimes.
Descano signed the policy memorandum on Dec. 15, 2020. It instructs assistant commonwealth’s attorneys to consider immigration consequences when possible and when doing so is consistent with justice as they weigh charges, plea agreements and sentencing recommendations.
The DOJ’s notification quoted the direction to consider immigration consequences but omitted the accompanying qualification that prosecutors should do so only when it accords with justice.
Harmeet Dhillon, assistant attorney general for the DOJ’s Civil Rights Division, said she authorized the inquiry to determine whether the policy has led to unlawful discrimination based on race, national origin or color, or deprived people of rights protected by federal law or the Constitution.
Dhillon argued that the guidance could result in immigrants receiving preferential treatment unavailable to U.S. citizens.
The policy says public safety will likely outweigh other considerations in cases involving violence or great harm to a victim. For less serious offenses, prosecutors may pursue resolutions that reduce the possibility of immigration arrest or deportation, but the guidance says those outcomes cannot be more favorable than resolutions offered to defendants without such immigration consequences.
Congressional scrutiny follows fatal stabbing
Descano was expected to testify before Congress at 10 a.m. on May 14. Fairfax County Sheriff Stacey Kincaid was also invited to appear before a House Judiciary subcommittee to discuss county policies that limit cooperation with U.S. Immigration and Customs Enforcement unless required by law or a court order.
Although the hearing had not yet appeared on the subcommittee’s schedule, it was reportedly organized after the Feb. 23 fatal stabbing of Fredericksburg resident Stephanie Minter at a Hybla Valley bus stop.
Abdul Jalloh, a Sierra Leone national whom ICE says is not authorized to live in the United States, was charged with murder. He had previously been arrested in connection with five stabbing incidents, but received jail time in only one case.
Minter’s mother said she welcomed the DOJ investigation because she believes undocumented immigrants in Fairfax County do not receive the same jail time that U.S. citizens would face for comparable crimes.
Republicans on the House Judiciary Committee had sent letters to Descano and Kincaid in January criticizing their policies restricting cooperation with ICE.
Investigation announced as FBI raids prominent Democrat
The DOJ announced its investigation on the same day FBI agents searched the office of Virginia Senate President L. Louise Lucas and raided her cannabis business in Portsmouth.
Two people familiar with the matter said the FBI was conducting a corruption investigation that began during the Biden administration. Lucas and other Democrats nevertheless questioned the timing, which came two weeks after voters approved a referendum permitting new congressional districts designed to give Democrats a 10-1 advantage.
Virginia House Speaker Don Scott said he was deeply concerned about the search. He cautioned that the public had been given more speculation and theatrics than substantive information and urged people to wait for additional facts before reaching political conclusions.
Gov. Abigail Spanberger declined to comment.
Other Virginia Democrats connected the raid’s timing to a series of FBI and Justice Department investigations involving perceived opponents of Trump.
The Justice Department had charged former FBI Director James Comey the previous week with making a threatening Instagram post about Trump. Comey denied the accusation. A court had already dismissed an earlier federal case alleging that he lied to Congress.
A separate mortgage fraud case against Democratic New York Attorney General Letitia James was also dismissed. James, who brought a major civil fraud lawsuit against Trump and his business, denied the charges and described the prosecution as vindictive. Comey, a longtime Republican who broke with the party during the past decade, made a similar claim.
Virginia Attorney General Jay Jones said such cases have weakened public confidence in federal prosecutors in the state.
The Trump administration has also invoked civil rights law to challenge Fairfax County Public Schools policies supporting transgender students and has threatened to withhold federal funding.
The all-Democratic Fairfax County School Board sued to restore access to that funding. The U.S. Fourth Circuit Court of Appeals heard oral arguments in the case on Jan. 29.