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 AB 1882 Page 2 $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).) AB 1882 Page 3 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. AB 1882 Page 4 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).) AB 1882 Page 5 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 AB 1882 Page 6 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 AB 1882 Page 7 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 AB 1882 Page 8 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 AB 1882 Page 9 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 AB 1882 Page 10 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 AB 1882 Page 11 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%. AB 1882 Page 12 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.) AB 1882 Page 13 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 AB 1882 Page 14 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 AB 1882 Page 15 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 AB 1882 Page 16 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 AB 1882 Page 17 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 AB 1882 Page 18 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 AB 1882 Page 19 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. AB 1882 Page 20 "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 AB 1882 Page 21 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 Page 22 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