BILL ANALYSIS
AB 1882
Page 1
Date of Hearing: April 15, 2008
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1882 (Garrick) - As Amended: March 28, 2008
FOR VOTE ONLY
SUMMARY : Requires an arresting agency to notify the
appropriate federal agency if the arresting agency has reason to
believe a person arrested for driving under the influence (DUI)
of alcohol or drugs is an illegal alien. Specifically, this
bill states that an arresting authority shall report to the
United States Immigration and Customs Enforcement (ICE) the
presence of an arrestee when both of the following occur:
1)The arrestee is arrested for either a Vehicle Code Section
23152 violation (DUI) that caused property damage of over
$600, or a Vehicle Code Section 23153 violation (DUI with
bodily injury).
2)The arrestee fails to provide the arresting authority with
appropriate documentation demonstrating his or her legal
presence in the United States.
EXISTING LAW :
1)States that it is unlawful for any person who is under the
influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage or drug, to drive
a vehicle. (Vehicle Code section 23152(a).)
2)Provides that it is unlawful for any person who has 0.08% or
more, by weight, of alcohol in his or her blood to drive a
vehicle. (Vehicle Code section 23152(b).)
3)Provides that a first violation of DUI is punishable by
imprisonment in the county jail for not less than 96 hours, at
least 48 of which shall be continuous, nor more than six
months, and by a fine of not less than $390 nor more than
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$1,000. (Vehicle Code section 23536(a).)
4)States that if a person is convicted of a DUI violation and
the offense occurred with 10 years of a separate violation of
specified offenses, the person shall be punished by
imprisonment in the county jail for not less than 90 days nor
more than one year and a fine of not less than $390 nor more
than $1,000. (Vehicle Code section 23540(a).)
5)States that in any DUI prosecution, it is a rebuttable
presumption that the person had 0.08% or more, by weight, of
alcohol in his or her blood at the time of driving the vehicle
if the person had 0.08% or more, by weight, of alcohol in his
or her blood at the time of the performance of a chemical test
within three hours after the driving. (Vehicle Code section
23152(b)(3).)
6)Provides that it is unlawful for any person, while driving
under the influence of any alcoholic beverage or drug, or
under the combined influence of any alcoholic beverage and
drug, to drive a vehicle and concurrently do any act forbidden
by law, or neglect any duty imposed by law in driving the
vehicle, which act or neglect proximately causes bodily injury
to any person other than the driver. (Vehicle Code section
23153(a).)
7)States that it is unlawful for any person, while having 0.08%
or more, by weight, of alcohol in his or her blood to drive a
vehicle and concurrently do any act forbidden by law, or
neglect any duty imposed by law in driving the vehicle, which
act or neglect proximately causes bodily injury to any person
other than the driver. (Vehicle Code section 23153(b).)
8)Provides that any person convicted of a first offense of DUI
with bodily injury, that person shall be punished by
imprisonment in the state prison, or in a county jail, for not
less than 90 days nor more than one year, and by a fine of not
less than $390 nor more than $1,000. (Vehicle Code section
23554.)
9)Provides that a person who drives a motor vehicle is deemed to
have given consent to chemical testing of his or her blood or
breath for the purpose of determining the alcoholic content of
his or her blood if lawfully arrested for specified offenses.
(Vehicle Code section 23612(a)(1)(A).)
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10)States that a person who drives a motor vehicle is deemed to
have given consent to chemical testing of his or her blood or
urine for the purpose of determining the drug content of his
or her blood if lawfully arrested for specified offenses.
(Vehicle Code section 23612(a)(1)(B).)
11)States that if a person is lawfully arrested for driving
under the influence of any drug, or the combined influence of
alcohol and any drug, the person has the choice of whether the
test shall be of his or her blood, breath or urine and the
officer shall advise the person of that choice. (Vehicle Code
section 23612(a)(2)(B).)
12)Provides that a person who chooses to submit to a breath test
may also be requested to submit to a blood or urine test if
the officer has reasonable cause to believe that the person
was driving under the influence of a drug or the combined
influence of a drug and an alcoholic beverage and if the
officer has a clear indication that a blood or urine test will
reveal evidence of the person being under the influence.
(Vehicle Code section 23612(a)(2)(C).)
13)Defines the term "alien" as "any person not a citizen or
national of the United States. (8 U.S.C. Section 1101(a)(3).)
14)States that "undocumented criminal alien" is defined as an
alien who (8 U.S.C. Section 1231(i)(3)):
a) Has been convicted of a felony or of two misdemeanors,
and,
b) Entered the United States without inspection at any time
or place other than as designated by the United States
Attorney General (AG);
i) Was the subject of exclusion or deportation
proceedings at the time he or she was taken into custody
by California; or,
ii) Was admitted as a non-immigrant and at the time he
or she was taken into custody by California had failed to
maintain the non-immigrant status in which the alien was
admitted or to which it was changed, as specified, or to
comply with the conditions or any such status.
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15)Defines as inadmissible any alien convicted of acts which
constitute the essential elements of a crime involving moral
turpitude or a violation of any law or regulation of a State
related to a controlled substance, as defined in 21 U.S.C.
Section 802. (8 U.S.C. section 1182(2)(A).) However, this law
provides exceptions to an alien who committed only one crime
if the crime was committed when the person was under 18 years
of age, and the crime was committed more than five years
before the application for a visa or other documentation, or
the maximum penalty possible for the crime of which the alien
was convicted did not exceed imprisonment for one year and, if
the alien was convicted of such crime, the alien was not
sentenced to a term of imprisonment in excess of six months.
(8 U.S.C. section 1182(A)(ii).)
16)Describes the criminal offenses for which an alien is
deportable. (8 U.S.C. section 1227(2)(A).) Such crimes
include, but are not limited to:
a) Crimes of moral turpitude committed within five years of
admission to the United States, or 10 years in the case of
an alien provided lawful permanent resident status; crimes
for which a sentence of one year or longer may be imposed.
(8 U.S.C. section 1227(A)(i)(I)(II).)
b) Two or more crimes involving moral turpitude, regardless
of whether the alien was confined therefore, committed any
time after admission. (8 U.S.C. section 1227(2)(A)(ii).)
c) Aggravated felony committed at any time. (8 U.S.C.
section 1227(2)(A)(iii).)
d) High-speed flight. (8 U.S.C. section 1227(2)(A)(iv).)
e) Failure to register as a sex offender. (8 U.S.C.
section 1227(2)(A)(v).)
f) Conviction of any violation of controlled substance
laws, other than a single offense involving possession for
one's own use of 30 grams or less of marijuana. (8 U.S.C.
section 1227(2)(B)(i).)
g) Certain firearms offenses. (8 U.S.C. section
1227(2)(C).)
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h) Domestic violence, stalking, violation of protective
order, crimes against children, including child abuse,
child neglect, and child abandonment. (8 U.S.C. section
1227(2)(E)(i).)
i) Failure to register and falsification of documents. (8
U.S.C. section 1227(3).)
j) Security, terrorist activities, and foreign policy
basis. (8 U.S.C. section 1227(4).)
aa) Voting in violation of any federal, state or local
constitutional provision, statute, or ordinance. (8 U.S.C.
section 1227(6)(A).)
17)Creates specified exceptions for removal of nonviolent
offenders prior to completion of their sentence of
imprisonment (8 U.S.C. section 1231(a)(4)(B)): In the case of
an alien in the custody of a state, or a political subdivision
of a state, if the chief state official exercising authority
with respect to the incarceration of the alien determines that
the alien is confined for a non-violent offense, (with
specified exceptions); the removal is in the best interest of
the state, and submits a written request to the AG that such
alien be so removed. (8 U.S.C. section 1231(4)(A)(ii).)
18)Defines "crime of violence" in federal law as an offense that
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used inn the course of
committing the offense. (18 U.S.C. section 16.)
19)States that no cause or claim may be asserted under 8 U.S.C.
section 1231(4) against any official of the United States or
of any state to compel the release, removal, or consideration
for release or removal of any alien. (8 U.S.C. section
1231(a)(4)(D).)
20)Provides that any alien who has been denied admission to the
United States, excluded, deported or removed, or who has
departed the United States while an order of exclusion,
deportation or removal is outstanding, and thereafter enters
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or attempts to enter the United States, or except as
specified, is found in the United States, shall be fined,
imprisoned for two years or both. (8 U.S.C. section 1326(a).)
21)States that any alien whose removal was subsequent to a
conviction of three or more misdemeanors involving drugs,
crimes against the person, or both, or a felony, other than an
aggravated felony, who has been denied admission to the United
States, excluded, deported or removed, or who has departed the
United States while an order of exclusion, deportation or
removal is outstanding, and thereafter enters or attempts to
enter the United States, or except as specified, is found in
the United States, shall be fined, imprisoned for not more
than ten years, or both. (8 U.S.C. section 1326(b)(1).)
22)States that any alien whose removal was subsequent to a
conviction of an aggravated felony, and who has been denied
admission to the United States, excluded, deported or removed,
or who has departed the United States while an order of
exclusion, deportation or removal is outstanding, and
thereafter enters or attempts to enter the United States, or
except as specified, is found in the United States, shall be
fined, imprisoned for not more 20 years, or both. (8 U.S.C.
section 1326(b)(2).)
23)States that the US AG shall take into custody specified
inadmissible and deportable aliens who have committed
specified crimes, when the alien is released, without regard
to whether the alien is released on parole, probation, and
without regard to whether the alien may be arrested or
imprisoned again for the same offense. [8 U.S.C. Section
1226(c)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1882 is
common sense public safety legislation that will dramatically
reduce the number of unnecessary DUI deaths and injuries in
California.
"Sara Cole, 44, a Los Gatos mother of four, was loading one of
her son's bicycles into her car in September 2007 when Lucio
Rodriguez swerved off the road and slammed into her. Her legs
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were crushed, and she faces years of physical therapy and
surgeries. Rodriguez, 27, fled the scene and when later
stopped by police was so drunk that he was unable to stand on
his own. He had a blood alcohol level of 0.l6, twice the
legal limit.
"It was later discovered that Rodriguez, a cook at a Los Gatos
restaurant, was believed to be in the U.S. illegally and had
been convicted in a misdemeanor drunken driving case six
months earlier. No one from Immigration and Customs
Enforcement (ICE) had ever interviewed him on his residency
status after the first drunk driving conviction.
"Had Rodriguez been reported to ICE the first time he was
convicted, Sara may still be walking. We are not asking for
anything more than a notification phone call to ICE if there
is reason to believe the person is in the country illegally.
From there, ICE would use their resources to verify the
person's immigration status and how they would like to proceed
with the situation.
"This bill creates minimal additional work for local law
enforcement agencies and in the long run may end up saving the
state time and money. Theoretically, once the individual is
deported, the local agency no longer has to devote time and
money arresting them for subsequent violations."
2)Immigration Issues Are Committed to the Absolute Discretion of
the United States AG : In State of California v. United
States, 104 F.3d 1086 (9th Circuit 1996), California alleged
that the US AG failed to perform his statutory duties under
specified sections of Title 8, United States Code, by not
conducting deportation proceedings immediately following the
conviction of aliens eligible for deportation and for failing
to take into custody aliens convicted of aggravated felonies
upon their release from state incarceration pending a
determination of deportability and other related issues.
The 9th Circuit Court of Appeals rejected California's argument,
stating that "agency refusals to institute investigation or
enforcement proceedings fall within the exception to
reviewability provided by 5 U.S.C. Section 701(a)(2) for
action 'committed to agency discretion.'" The Court held that
an agency's decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally
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committed to the agency's absolute discretion . . . these
issues are not subject to judicial review." (Id at p. 1094.)
Similarly, the United States Supreme Court has held that "our
cases have long recognized the preeminent role of the Federal
Government with respect to the regulation of aliens within our
borders." (See, e.g., Matthews v. Diaz, 426 U.S. 67 (1976).)
States may not impose auxiliary burdens on aliens. (Toll v.
Moreno, 458 U.S. 1 (1982).)
In Williams v. Williams, 328 F. Supp. 1380 (U.S. District Court
for the District of Virgin Islands), the Court held that
non-compliance with immigration laws was not a reason to deny
the parties the jurisdiction of the civil courts of the United
States. "To deny an alien access to our divorce courts on the
sole ground that he may be in violation of an immigration law
would be to deny both due process and the equal protection of
the laws. Such a denial would attach a civil disability to
some aliens without the prior benefit of the procedures
designed or the purpose of enforcing the immigration laws.
(See 8 U.S.C. 1251 et seq; 8 C.F.R. pt. 241-44 (1970).) The
divorce court is patently an inappropriate forum in which to
attempt to reproduce these procedures. An exclusion from
court on this ground would also discriminate, without
compelling reason to do so, against persons who violate this
particular immigration law, as distinguished from persons who
violate any other law. The remedy for a violation of 8 U.S.C.
1101(a)(15)(H) is deportation or other administrative
sanctions, not withdrawal of access to our divorce courts."
The Williams Court thus rejected using the state court system
to assist federal immigration authorities with the enforcement
of immigration law, a field fully occupied by the Federal
government.
The 9th Circuit Court of Appeals has affirmed that "power to
regulate immigration is unquestionably exclusively a federal
power. [T]he United States Constitution provides that
Congress shall have the power to . . . establish a uniform
Rule of Naturalization. U.S. Constitution, article I, 8."
(Cazarez-Guiterrez v. Ashcroft, 382 F. 3d 905 (2004).) The
Ninth Circuit has repeatedly recognized that the immigration
laws should be applied uniformly across the country, without
regard to the nuances of state law." (Id. at p.913.)
This bill is one of several bills in this Committee that have
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attempted to use California State law enforcement resources in
the enforcement of federal immigration laws. As stated in a
long line of federal court cases, enforcement of immigration
laws is a matter entirely committed to the United States
Attorney General. (See, e.g., Takahashi v. Fish and Game
Commission, 334 U.S. 410, 419 (1948); California v. United
States, 104 F. 3d 1086 (9th Circuit 1996); New Jersey v.
United States, 91 F. 3d 463 (3rd Circuit 1996).) Individual
states may not enact laws that impose an auxiliary burden upon
the entrance or residence of aliens that was never
contemplated by Congress.
3)Feasibility of This Bill : In some jurisdictions in
California, persons arrested for DUIs are not taken to a
central jail facility, but are held at local facilities until
they are deemed sober enough to be released from custody.
Would this bill require that all DUI arrestees be taken to a
central facility, where ICE representatives are more likely to
be available or require ICE representatives to travel to the
local facilities, which may be miles away from a centralized
jail facility? These additional burdens are particularly
notable in view of the fact that they are imposed on the basis
of an arrest and the inability to provide documentation of
legal presence in the United States. What is the nexus
between a DUI arrest and the additional demands for
documentation of legal presence in the United States?
Moreover, inasmuch as individual states may not enact laws that
impose an auxiliary burden upon the entrance or residence of
aliens that was never contemplated by Congress, detention of a
person arrested for DUI for a longer period of time due to the
inability to provide such documentation would certainly be
found to be auxiliary burden on the residence of aliens that
was never contemplated by Congress. It should be recognized
that the person detained may well be a citizen of the United
States.
Even if a stop and seizure of the person was initially lawful,
it can become unlawful by becoming unreasonably intrusive or
prolonged. The scope and duration of a seizure must
reasonably relate to the underlying justification for the
seizure. Once that justification expires, the seizure must
end. The scope of the search must be strictly tied to and
justified by the circumstances which rendered its initiation
possible. An officer must confine his or her investigation
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strictly to what was minimally necessary to achieve the
justified, proper objective. Even if the stops complied with
the Fourth Amendment, the officers' subsequent activities must
also have met Fourth Amendment requirements; i.e., those
further actions must have reasonably been related to the
purpose - to enforce the state's traffic laws - of the stop.
(Farm Labor Organizing Committee v. Ohio State Highway Patrol,
991 F, Supp. at p. 902.)
The United States Supreme Court has held that an officer must
have a particularized suspicion before he or she stops,
detains and questions a potential illegal alien. In that
case, the officers relied on a single factor to justify
stopping the car: the apparent Mexican ancestry of the
occupants. "We cannot conclude that this furnished reasonable
grounds to believe that the three occupants were aliens."
(United States v. Brigoni-Ponce, 422 U.S. 873, 885 - 887
(1975).)
"Citizens are entitled to equal protection of the laws at all
times. If law enforcement adopts a policy, employs a
practice, or in a given situation takes steps to initiate an
investigation of a citizen based solely upon that citizen's
race, without more, then a violation of the Equal Protection
Clause has occurred." (United States v. Avery, 137 F. 3d 343
(6th Circuit 1997).)
Even if an underlying DUI stop was reasonable under the Fourth
Amendment, the officer's subsequent activities must have been
reasonably related to the purpose of enforcing the state's
traffic laws. (Farm Labor Organizing Committee, supra, at p.
902.) Questioning the driver about his or her immigration
status, demanding that he or she produce legal documentation
and prolonging the detention until officials from ICE can be
summoned and can arrive at the scene, prolong the period of
time the arrested person is detained, and have no reasonable
relationship to the enforcement of the state's traffic laws.
The United States Supreme Court has issued similar findings. "A
lawful seizure can become unlawful if it is prolonged beyond
the time reasonably required to complete the mission."
(Illinois v. Caballes, 543 U.S. 405 (2005); Muehler v. Mena,
544 U.S. 93 (2005).) If this bill contemplates the further
detention of the arrested person to accommodate the ICE
official's other workload or travel time to the scene of the
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detention, a lawful seizure and detention becomes unlawful if
it is prolonged beyond the time reasonably required to
complete the arrest.
4)Department of Motor Vehicles Data : In 2004, the Department of
Motor Vehicles reports that the total number of DUI arrests
was 180,957. 175,311 of these were misdemeanor arrests.
31,538 of these involved alcohol-related injuries.
(California Department of Motor Vehicles 2006 Annual Report of
the California DUI Management Information System.)
That report also states that "among 2004 DUI arrestees,
Hispanics (44.6%) again constituted the largest racial/ethnic
group, as they have each year since 1992. Hispanics, however,
continued to be arrested at a rate substantially higher than
their estimated percentage of California's adult population
(31.8% in 2004). The ethnic distribution among DUI arrestees
who are convicted fairly closely parallels the ethnic
distribution of the arrestees.
"Blacks were also slightly overrepresented among DUI arrestees
(7.0% of arrests; 6.5% of the population), while other
racial/ethnic groups were underrepresented among DUI
arrestees, relative to their 2004 population parity. These
underrepresented groups were Whites (41.8% of arrests; 47.4%
of the population) and 'Other' (6.6% of arrests; 14.3% of the
population.
"In seven counties, Hispanics comprised 60% or more of those
arrested for DUI during 2003: Tulare (74.5%); Merced (67.0%);
Fresno (65.9%); San Benito (62.7%); Imperial (69.5%); Monterey
(67.7%); and Madera (65.8%). In most other counties, the
majority of the arrestees were white.
"The average age of a DUI arrestee varied considerably by race.
Blacks were the oldest, with a mean age of 35.7 years, while
Hispanics were the youngest, with a mean age of 31.1 years."
Statewide, the DUI conviction rate was 76.7%; there were 137,126
misdemeanor convictions and only 3,721 felony DUI convictions.
1,155 of the DUI cases were dismissed. DUI conviction rates
varied greatly by county, with Tehama County having a DUI
conviction rate of only 38.2% and Amador County having a
conviction rate of 97.2%.
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Why are Hispanics arrested at a rate substantially higher than
their estimated percentage of California's population? Why
are Blacks also overrepresented among DUI arrestees? With no
information provided that either group drinks more alcohol
than the general population, it appears that these two
California's minority groups may be, for some reason, more
highly targeted by law enforcement. A GOOGLE search disclosed
numerous articles from across the country regarding law
enforcement targeting Hispanic neighborhoods for DUI
checkpoints. If this bill passes and law enforcement officers
now have the ability to both arrest a suspected DUI driver and
at the same time be credited with illegal immigration
enforcement, it can reasonably be expected that the arrest
rate for Hispanics may rise dramatically.
5)No State Can Add To or Reduce the Force of Immigration
Regulations Enacted by Congress : Contrary to the author's
statement that this bill will dramatically reduce the number
of unnecessary DUI deaths and injuries in California, it
appears that this bill is, in fact, intended to add to the
force of immigration rules enacted by Congress.
Since the Federal Government has the exclusive power to regulate
immigration, state legislative bodies are unlikely to be
successful in attempts to encroach upon Congressional power.
(See, e.g., De Canas v. Bica, 424 U.S. 351 (1976).)
"Over no conceivable subject is the power of Congress more
complete than it is over the admission of aliens. Congress
has exercised its constitutional authority to regulate
immigration by enacting the Immigration and Nationality Act
(INA), 8 U.S.C. Section 1101 et seq. The INA and its
accompanying regulations comprehensively address issues
relating to immigration, including authorized entry, length of
stay, residence status, and deportation. The INA,
furthermore, delegates enforcement duties to the Immigration
and Naturalization Service (INS). No state can add to or
reduce the force of immigration regulations enacted by
Congress." (Farm Labor Organizing Committee, supra, at p.
902, citing Takahashi v. Fish and Game Commission, 334 U.S.
410, 419 (1948).) In light of the preemptive reach of federal
authority over immigration, the states, at least arguably,
have no interest in, and thus no role to play in, the
enforcement of federal laws relating to aliens. (Farm Labor
Organizing Committee, supra, at p. 902.)
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Note: The United States Citizenship and Immigration Services
(USCIS) is a bureau of the Department of Homeland Security
(DHS); the duties of the INS were transferred to the USCIS by
the National Strategy for Homeland Security and the Homeland
Security Act of 2002.
As stated in this analysis, there are no criteria for an officer
demanding that the arrested person provide appropriate
documentation demonstrating his or her legal presence in the
United States. It does not appear reasonable to conclude that
every DUI arrest will be accompanied by a demand for
documentation of legal presence in the United States.
This bill is unclear as to what documents will satisfy the
demand for documentation of legal presence in the United
States. As pointed out below, there are many different
classifications of immigrants and not all of them are issued
"green cards." There are also visitors, foreign students,
people with special work permits, asylum-seekers, and people
recently married to a United States citizen and in the
application process for a "green card", etc. According to the
Migration Policy Institute (MPI), by the end of 2007, nearly
one million naturalization cases were pending; many of these
cases were delayed due to the need for a Federal Bureau of
Investigation (FBI) name check, which can take weeks or months
as manual reviews of FBI files are sometimes required. The
one million persons with naturalization cases pending may not
have the required documentation, but are recognized by USCIS;
in February 2008, that agency announced that it would begin
granting permanent residence to certain applicants whose cases
were otherwise complete but had been awaiting FBI clearance
for more than six months. (MPI February 2008.)
This bill is vague with respect to the documentation that will
be accepted and, therefore, subject to unequal interpretation
and application by law enforcement officers.
In fact, how many United States citizens regularly drive with
evidence of legal documentation of the right to be in the
United States? Such documentation seemingly would consist of
a birth certificate, a valid social security card, or a United
States passport. Carrying one's social security card has
recently been discouraged due to the increasing problems of
identity theft; and unless a citizen is driving to the
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airport, en route to a foreign destination, he or she is
unlikely to drive around with his or her passport in the car.
Driving with one's birth certificate in hand is similarly
highly unlikely; most citizens, if they can find their birth
certificates at all, keep them securely filed or in safe
deposit boxes. Unless arresting peace officers intend to
require documentation of the right to be in the United States
from all persons detained, these factors suggest that proving
one's right to be in the United States will be required only
of persons who appear to have been born in other countries,
which, if true, is racial profiling and illegal.
Moreover, according to the Migration Policy Institute (MPI), the
current Social Security card is the least secure of all of the
documents; it is the only document at present that lacks any
type of photograph, does not include a date of birth, and is
not laminated. The Social Security card lacks features to
make it tamper-proof, yet it is one of the major documents
used by employers to verify work eligibility. Other possible
documents include border crossing cards and laser visas; the
I-551 Permanent Resident Card; I-688, Temporary Resident Card
and driver's licenses issued prior to REAL-ID and those issued
after REAL-ID. According to MPI, the State Department is
currently working with DHS to develop the People's Access
Security Services (PASS) card that will allow for United
States citizens without a passport to enter the United States
from Canada, Mexico, the Caribbean, and Bermuda through land
and sea ports.
What documents would be acceptable under this bill to prove the
right to be in the United States? Of the listed documents,
United States citizens have only Social Security cards, the
least secure of any of the documents, and driver's licenses
potentially in their possession while driving vehicles. An
immigrant driver may have one of the other listed documents,
but it is questionable if every local law enforcement officer
is sufficiently familiar with the various immigration
documents to recognize an I-688 or I-688B, an employment
authorization document.
Clearly, the request for documentation of a person's legal right
to be in the United States would probably be limited to a
person who appears "foreign" or has less than perfect English
language skills and other matters insufficient to form any
reasonable cause for the request. Local law enforcement
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officers are not sufficiently trained in the nuances of
federal immigration law, and would be unable to form a
suspicion based upon any of the numerous provisions of that
body of law. Requiring every person arrested to provide such
documentation would be burdensome, costly, and a waste of the
resources of both the local law enforcement agency and ICE.
Moreover, contacting immigration officials to make a final
determination is a misnomer. The complexity of the federal
immigration laws is one of many reasons there are so many due
process and substantive hearings before immigration judges and
appeals from the decisions of those judges to the Federal
Board of Immigration Appeals, the final body in the
Administrative appeals process. "The Board of Immigration
Appeals is the highest administrative body for interpreting
and applying immigration laws. The Board has nationwide
jurisdiction to hear appeals from certain decisions rendered
by Immigration judges and by district directors of DHS in a
wide variety of cases in which the government of the United
States is one party and the other party is an alien, a
citizen, or a business firm. Decisions of the Board are
binding on all DHS officers and Immigration Judges unless
modified or overturned by the Attorney General or a Federal
Court. All Board decisions are subject to judicial review in
the Federal Courts." (See, generally, http://www.doj.gov .)
The person charged as an illegal alien then has the right to
challenge the findings of the administrative appeals body in
federal district court. Thus, even if immigration officials
were called to the scenes of DUI arrests, they would be
offering, at best, a preliminary opinion, not a final
determination.
6)Federal Appeals Court has held that a Conviction for Second
Degree Manslaughter Did Not Constitute a Crime of Violence and
Did Not Subject the Person Convicted to Removal from the
United States: In Jobson v. Ashcroft, 326 F. 3d 367 (2nd
Circuit 2003), the plaintiff appealed from an order of
deportation for commission of manslaughter, for recklessly
causing the death of his son. The court stated, "Under 8
U.S.C. 1227(a)(2)(A)(iii), 'any alien who is convicted of an
aggravated felony after admission is deportable.' An
aggravated felony is a term of art defined in various sections
of 8 U.S.C. 1101(a)(43); subsection (F) thereof defines
aggravated felony as 'a crime of violence (as defined in 18
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U.S.C. 16) for which the term of imprisonment is at least
one year. Crime of violence, also a term of art, is defined
in 18 U.S.C. 16 as physical force against the person or
property of another, or (b) any other offense that is a felony
and that, by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense."
The court further held that "this Court takes a categorical
approach to determining whether an offense is a crime of
violence within the meaning of section 16(b). See Dalton v.
Ashcroft, 257 F. 3d 200, 203 (2nd Circuit 2001.) Under a
categorical approach, we look to the generic elements of the
statutory offense. 'Only the minimal criminal conduct
necessary to sustain a conviction under a given statute is
relevant,' citing Michel v. INS, 206 F. 3d 253, 270 (2nd
Circuit 2000.) We have acknowledged the daunting difficulties
of looking beyond the record of conviction and have concluded
that we cannot go behind the offense as it was charged to
reach our own determination as to whether the underlying facts
amount to one of the enumerated crimes." (Sui v. INS, 250 F.
3d 105, 117-118 (2nd Circuit 2001).) We reasoned that under 8
U.S.C. 1227(a)(2)(A)(iii), deportability is premised on the
existence of a conviction, not on an inquiry into a particular
defendant's conduct." (Id. at 126, n.10, 116-117.)
In Jobson, the defendant was convicted under a state statute
that required that he "recklessly cause the death of another."
(N.Y.P.L. 125.15(1).) "It is clear that the minimum
criminal conduct required to violate N.Y.P.L. 125.15(1) does
not necessarily present a substantial risk that physical force
against the person of another may be used. The offense
encompasses many situations in which the defendant applies no
physical force to the victim, and more importantly, situations
that do not involve any risk that the defendant will apply
force to the victim." The Jobson Court notes the many crimes
which involve a substantial risk of injury but do not involve
the use of force. Accordingly, this alone would justify
holding that the statute in question is not categorically a
crime of violence within the meaning of 18 U.S.C. Section
16(b).
"Second, we believe that the unintentional accident caused by
recklessness cannot properly be said to involve a substantial
risk that a defendant will use physical force." The Court
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further held that section 16(b) contemplates only intentional
conduct and refers only to those offenses in which there is a
substantial likelihood that the perpetrator will intentionally
employ physical force. (Id. at p. 373.)
Finally, the Jobson Court held that Jobson's conviction under
the New York manslaughter statute was not a crime of violence
within the meaning of 18 U.S.C. Section 16(b). It is
therefore not an aggravated felony under 18 U.S.C. Section
1101(a)(43)(F).
The 9th Circuit has joined other circuits in restricting the
category of crimes of violence under 18 U.S.C. 16 to crimes
requiring specific intent to use force against a person or
property. (Fernandez-Ruiz v. Gonzales, 466 F. 3d 1121, 1127
(9th Circuit 2006).) The court cited the "conclusion of the
Leocal Court [Leocal v. Ashcroft, 543 U.S. 1 (2004)] that in
no ordinary or natural sense can it be said that a person
risks having to use physical force against another person in
the course of operating a vehicle while intoxicated and
causing injury strongly indicates that the result in Leocal
would have been the same even had a violation of the statute
there at issue required recklessness rather than mere
negligence." (Fernandez-Ruiz, supra at p. 1127.)
7)Arguments in Support : According to the Peace Officers
Research Association of California , "AB 1882 would cover an
existing gap in the reporting of undocumented aliens who are
arrested for violating specific laws. Current law requires
the reporting of undocumented aliens for most drug violations
except for DUI/drugs-alcohol. Most jurisdictions conduct a
quick release program for DUI/drugs-alcohol that inhibits the
ability of ICE to review the status of a suspected
undocumented alien. This bill would require the agency to
report the individual, thus placing a hold on the individual
which would give ICE the time to properly evaluate their legal
status in the country."
8)Arguments in Opposition :
a) According to the American Civil Liberties Union , "This
bill invites mass racial profiling because state and local
law enforcement officials are not trained or legally
competent to determine an individual's federal immigration
status. Instead, law enforcement officials would be forced
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to rely on whether someone looks or sounds 'foreign,'
resulting in profiling of Latinos and other immigrant
communities. Although the bill offers no guidance on how
law enforcement officers would determine an individual
driver's immigration status, to the extent it contemplates
police reliance on the FBI's National Crime Information
Center (NCIC) or related federal databases, those databases
are notoriously inaccurate. Indeed, a 2005 study by the
Migration Policy Institute notes an alarming number of
false positive 'hits' when the names and other identifying
information of individuals are entered into these
databases. See http://www.migrationpolicy.org
/news/2005 12 08.php . Because the bill applies to
individuals who are merely arrested for an alleged
violation, it also invites local law enforcement to use
purported DUI-related traffic stops and arrests as a
pretext for attempting to enforce civil immigration laws.
"This bill increases costs for local law enforcement agencies
by mandating that they assume the burden of enforcing the
nation's civil immigration laws, stretching already thin
resources that could be better focused on protecting public
safety and enforcing criminal laws. Moreover, immigration
laws are extremely complex and the unavoidable mistakes
made by ill-prepared law enforcement officials in
determining an individual's immigration status can be
costly, resulting in lawsuits and protracted litigation,
especially if individuals are wrongly detained because of
assumptions about their immigration status. See, e.g.,
Soto-Torres v. Johnson, CIV S-99-1695 WBS/DAD (E.D. Cal
filed August 30, 1999. (County and federal officials paid
$100,000 to settle the case after the County probation
officer made an erroneous determination regarding
plaintiff's deportability which resulted in wrongful arrest
and detention of plaintiff by immigration authorities.)
"The DUI statutes referenced in this bill are not removable
offenses. Although this bill purports to focus on whether
an individual is present in the United States without
authorization, it is worth noting that the DUI-only
violations referenced in the bill are by themselves
offenses that would not subject legal immigrants to
deportation. The United States Supreme Court has held that
DUI offenses that do not contain a mens reae element or
otherwise allow a conviction or merely negligent conduct
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are not removable offenses under the federal immigration
laws. Leocal v. Ashcroft, 543 U.S. 1 (2004.) Therefore,
there is no nexus between the underlying DUI violations
referenced in this bill and offenses that would subject an
individual to removal from the United States under federal
immigration law."
b) According to the Friends Committee on Legislation of
California (FCL), "FCL fears that this bill invites racial
profiling as law enforcement officers have not been trained
in complex immigration law. Furthermore, we question the
probity of asking local law enforcement to bear the burden
of enforcing federal law.
"While we support efforts to reduce prison spending,
especially when California is facing a $14.5 billion
deficit, a recent report by the Public Policy Institute of
California indicates that immigrants are responsible for
much less of our state's incarceration costs than is
commonly assumed. The only way to significantly reduce
prison spending is to reduce the number of people in
prison, which would require accelerated release, preferably
as the result of sentencing reforms. If this is one with
care and consideration, California could reduce the number
of people in prison without harming public safety."
c) According to the Lawyers' Committee for Civil Rights of
the San Francisco Bay Area , "AB 1882 would embroil local
law enforcement agencies in complex immigration-related
matters that remain the exclusive responsibility of the
Federal government.
"Local law enforcement officers are not trained or legally
competent to determine an individual's federal immigration
status. Immigration laws are extremely complex. Federal
immigration agents are required to undergo an intensive and
specialized residential training lasting over four months,
and federal agents in the field complete additional
on-the-job training. Local law enforcement officers are in
no position to make complex judgments regarding an
individual's status in the country. In particular, there
are many categories of immigrants, such as asylum-seekers,
who are lawfully present in the country but may not have
readily-available documents or papers that establish their
status.
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"To the extent that the bill contemplates police reliance on
the FBI's National Crime Information Center (NCIC) or
related federal databases, those databases are notoriously
inaccurate. According to a recent study, 42 percent of
federal immigration database 'hits' were false positives.
[Migration Policy Institute, Blurring the Lines: A Profile
of State and Local Police Enforcement of Immigration Law
Using the National Crime Information Center Database,
2002-2004 (available at www.migrationpolicy.org/;
news/2005_12-08.php.) ] As a result, law enforcement agencies
that rely on those error-filled databases are likely to
arrest or detain individuals who are not actually subject
to removal.
"Because the bill applies to persons who are merely arrested
for an alleged violation, it also invites local law
enforcement to use purported DUI-related traffic stops and
arrests as a pretext for attempting to enforce civil
immigration laws. We are particularly concerned that the
bill will result in the arrest and detention of Latinos and
other immigrant communities that appear or sound 'foreign'
to the officers.
"AB 1882 will likely result in costly and protracted
litigation against local and state officials when mistakes
are made by ill-prepared law enforcement officials. In one
of our cases, Soto-Torres v, Johnson, CIV S-99-1695 WBS/DAD
(E.D. California, filed August 30, 1999, County and federal
officials were forced to pay $100,000 to settle a lawsuit
after a County probation officer made an erroneous
determination regarding the plaintiff's deportability,
which resulted in the wrongful arrest and detention of
plaintiff by immigration authorities.
"Lastly, although this bill purports to focus on whether an
individual is present in the United States without
authorization, it is worth noting that DUI-only violations
referenced in the bill are by themselves offenses that
would not subject legal immigrants to deportation. The
U.S. Supreme Court has held that DUI offenses that do not
contain a certain mens rea element or otherwise allow a
conviction for merely negligent conduct are not removable
offenses under federal immigration law. Leocal v.
Ashcroft, 543 U.S. 1 (2004). Therefore, there is no nexus
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between the underlying DUI violations referenced in this
bill and offenses that would subject an individual to
removal from the United States under federal immigration
law."
[Mens Rea is defined by Black's Law Dictionary as "a guilty
mind; a guilty or wrongful purpose; a criminal intent.
(Black's Law Dictionary, Fifth Edition).]
9)Prior Legislation :
a) AB 1082 (Garrick) would have permitted federal and local
law enforcement officials to cooperate with enforcement of
immigration laws, provided that the Director of Homeland
Security develop a program to reimburse local law
enforcement in an amount equal to the prorated salary of
the local officer for time the officer spent attending
training on the federal Immigration Reform and Immigrant
Responsibility Act of 1996. AB 1082 failed passage in this
Committee, was granted reconsideration, failed passage and
returned to the Assembly Desk.
b) AB 648 (Adams) would have created a new ten-year
sentencing enhancement for any felony conviction of a
person who was previously convicted of a felony in
California for which he or she was deported from the United
States. AB 648 failed passage in this Committee, was
granted reconsideration, failed passage and returned to the
Assembly Desk.
c) AB 39 (Benoit) would have required the Secretary of the
Department of Corrections and Rehabilitation to demand in
writing that the United States AG take federal custody of
any undocumented inmate incarcerated in California's
correctional system. AB 39 failed passage in this
Committee, was granted reconsideration, failed passage, and
returned to the Assembly Desk.
REGISTERED SUPPORT / OPPOSITION :
Support
Peace Officers Research Association of California
Opposition
AB 1882
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American Civil Liberties Union
California Public Defenders Association
Friends Committee on Legislation of California
Lawyers Committee for Civil Rights of the San Francisco Bay Area
Mexican American Legal Defense Fund and Educational Fund
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744