BILL NUMBER: AB 1081	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 14, 2012
	AMENDED IN SENATE  AUGUST 15, 2011
	AMENDED IN SENATE  JUNE 8, 2011
	AMENDED IN ASSEMBLY  MAY 16, 2011
	AMENDED IN ASSEMBLY  APRIL 15, 2011

INTRODUCED BY   Assembly Member Ammiano
   (Coauthors: Assembly Members  Alejo,  Bonilla, Cedillo,
Eng, Monning,  and Skinner   V. Manuel Pérez,
  Skinner,   and Yamada  )
   (Coauthors: Senators Calderon, Hancock, and Yee)

                        FEBRUARY 18, 2011

   An act to add Chapter 17.1 (commencing with Section 7282) to
Division 7 of Title 1 of the Government Code, relating to state
government.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1081, as amended, Ammiano. State government: federal
immigration policy enforcement. 
   Existing federal law authorizes any authorized immigration officer
to issue an immigration detainer that serves to advise another law
enforcement agency that the federal department seeks custody of an
alien presently in the custody of that agency, for the purpose of
arresting and removing the alien. Existing federal law provides that
the detainer is a request that the agency advise the department,
prior to release of the alien, in order for the department to arrange
to assume custody, in situations when gaining immediate physical
custody is either impracticable or impossible.  
   This bill would prohibit a law enforcement official, as defined,
from detaining an individual on the basis of a United States
Immigration and Customs Enforcement hold after that individual
becomes eligible for release from criminal custody, unless the local
agency adopts a plan that meets certain requirements prior to or
after compliance with the immigration hold, and, at the time that the
individual becomes eligible for release from criminal custody,
certain conditions are met.  
   Existing law, setting forth the findings and declarations of the
Legislature, provides that all protections, rights, and remedies
available under state law, except any reinstatement remedy prohibited
by federal law, are available to all individuals regardless of
immigration status who have applied for employment, or who are or who
have been employed, within the state, and further provides that, for
purposes of enforcing specified state laws, a person's immigration
status is irrelevant to the issue of liability, and prohibits, in
proceedings or discovery undertaken to enforce those state laws, an
inquiry into a person's immigration status except where the person
seeking to make the inquiry has shown by clear and convincing
evidence that the inquiry is necessary in order to comply with
federal immigration law.  
   This bill would state the findings and declarations of the
Legislature with respect to a memorandum of agreement with the United
States Department of Homeland Security, regarding the implementation
of the Immigration and Customs Enforcement's Secure Communities
program, that the Bureau of Criminal Identification and Information
within the Department of Justice entered into on April 10, 2009. The
bill would require the bureau to modify that agreement, according to
specified requirements, or to exercise its authority under the
agreement to terminate the agreement. This bill would state that
nothing in this bill is intended to modify the bureau's existing,
established procedures for submitting or exchanging criminal justice
information data with the Federal Bureau of Investigation. 

   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.   (a)    The
Legislature finds and declares all of the following: 
   (a) The United States Immigration and Customs Enforcement's (ICE)
Secure Communities program shifts the burden and responsibility of
federal civil immigration enforcement onto local law enforcement
while undercutting community policing strategies. To operate the
Secure Communities program, ICE relies on immigration detainers.
These are voluntary requests to local law enforcement to hold
individuals for additional time beyond when they would be eligible
for release.  
   (b) Immigration detainers are a drain on local resources because
state and local law enforcement agencies are not reimbursed for the
full cost of responding to a detainer, which can include, but is not
limited to, extended detention time and the administrative costs of
tracking and responding to detainers. ICE may not mandate the
expenditure of state and local resources or the use of state and
local agencies to implement federal programs, such as the Secure
Communities program.  
   (c) Immigration detainers are not criminal detainers. Criminal
detainers are supported by a warrant and require probable cause. In
contrast, there is no requirement for a warrant and no established
standard of proof or probable cause for issuing an ICE detainer
request. Immigration detainers have erroneously been placed on United
States citizens as well as immigrants who are not deportable. 

   (d) The Secure Communities program and immigration detainers harm
community policing efforts because immigrant residents who are
victims or witnesses to crime, including domestic violence, are less
likely to report crime or cooperate with law enforcement when any
contact with law enforcement could result in deportation. The program
can result in a person being held and transferred into immigration
detention without regard to whether the arrest is the result of a
mistake, or merely a routine practice of questioning individuals
involved in a dispute without pressing charges. Victims or witnesses
to crimes may have recourse to lawful status (such as U-visas or
T-visas) that detention resulting from the Secure Communities program
obstructs.  
   (1) 
    (e)  Illinois, Massachusetts, New York, Washington,
 Pennsylvania,  and Washington, D.C. have all
refused to enter into, suspended, or terminated a memorandum of
agreement with the United States Department of Homeland Security
regarding the  Immigration and Customs Enforcement's
 Secure Communities program  because the program
undermines  citing concerns about harm caused to 
community policing, public safety, and protections against racial
profiling.  Pursuant to the program, federal officials have
claimed the authority to use state and local law enforcement
resources for the purpose of channeling individuals into federal
civil immigration enforcement based on minimal contact with law
enforcement.  
   (2) Immigrant residents who are victims or witnesses to crime,
including domestic violence related crimes, are less likely to report
the crime or cooperate with law enforcement because any contact with
law enforcement could result in deportation, without regard to
whether the arrest or the result of a mistake, or merely a routine
practice of questioning individuals involved in a dispute without
pressing charges. Victims or witnesses to crimes may have recourse to
lawful status (such as U-visas or T-visas) that detention resulting
from Secure Communities obstructs.  
   (b) It is the intent of the Legislature that the Bureau of
Criminal Identification and Information within the Department of
Justice modify the memorandum of agreement with the United States
Department of Homeland Security, regarding the implementation of the
Immigration and Customs Enforcement's Secure Communities program it
entered into on April 10, 2009, as specified in this act, thereby
paying respect to the wishes of several local jurisdictions that have
actively worked for decades to build community trust in law
enforcement and have expressed concern that the Secure Communities
program has been deployed without adequate notice and without their
consultation or consent.  
  SEC. 2.    Chapter 17.1 (commencing with Section
7282) is added to Division 7 of Title 1 of the Government Code, to
read:
      CHAPTER 17.1.  FEDERAL IMMIGRATION POLICY ENFORCEMENT


   7282.  (a) The Bureau of Criminal Identification and Information
within the Department of Justice shall modify the memorandum of
agreement with the United States Department of Homeland Security,
which shall be referred to as the modified agreement, regarding the
implementation of the Immigration and Customs Enforcement's Secure
Communities program in accordance with all of the following
requirements:
   (1) The modified agreement shall authorize a county to participate
in the Secure Communities program only upon the legislative body of
the county submitting an authorized written request to Immigration
and Customs Enforcement's Secure Communities program executive
director.
   (2) The modified agreement shall require a county that opts to
participate in the program, as provided in paragraph (1), to prepare
a plan to monitor and guard against racial profiling, discouraging
reporting by domestic violence victims, and harming community
policing overall. This plan shall be deemed a public record for
purposes of the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).
   (3) The modified agreement shall include all of the following
limitations to the Secure Communities program:
   (A) Protections for crime victims, including, but not limited to,
domestic violence victims.
   (B) Protections for juveniles.
   (C) An explicit limitation on the sharing of fingerprints with
Immigration and Customs Enforcement officials to only those
individuals convicted, rather than merely accused, of a crime.
   (4) The modified agreement shall include, but not be limited to,
all of the following safeguards against racial profiling:
   (A) A prohibition against obtaining fingerprints for the purposes
of the Secure Communities program through the use of checkpoints, and
the stopping of individuals solely based on perceived immigration
status.
   (B) A requirement that the Immigration and Customs Enforcement
establish a complaint process that allows for expedited review of
claims by those put into immigration removal proceedings prior to
conviction as a result of the program.
   (5) The modified agreement shall include a requirement that
Immigration and Customs Enforcement make available to the public on
its Internet Web site quarterly statistics on the Secure Communities
program in this state that include the following metric criteria:
   (A) Number of searches to IDENT.
   (B) Number of matches to IDENT data.
   (C) Number of detainers issued by Immigration and Customs
Enforcement based on Level 1, Level 2, and Level 3 offense
categories.
   (D) Number of detainers issued by Immigration and Customs
Enforcement where charges are never filed, are later dismissed, or
where there is ultimately no conviction.
   (E) Number of Level 1, Level 2, and Level 3 arrestees who are
transferred into Immigration and Customs Enforcement custody after
being subjected to an Immigration and Customs Enforcement detainer,
where charges are never filed, are later dismissed, or where there is
ultimately no conviction.
   (F) Number of identified detainees prosecuted criminally in
federal and state court.
   (G) Number of identified detainees removed from the United States.

   (H) Number of identified United States citizens and persons with
lawful status identified through the Secure Communities program.
   (I) Nationality, age, and gender of individuals identified and
removed through the Secure Communities program.
   (b) If the bureau is unable to fulfill the requirements of
subdivision (a), it shall exercise its authority under the agreement
to terminate the agreement.
   (c) Nothing in this section is intended to modify the bureau's
existing, established procedures for submitting or exchanging
criminal justice information data with the Federal Bureau of
Investigation. 
   SEC. 2.    Chapter 17.1 (commencing with Section
7282) is added to Division 7 of Title 1 of the   Government
Code   , to read:  
      CHAPTER 17.1.  STANDARDS FOR RESPONDING TO UNITED STATES
IMMIGRATION AND CUSTOMS ENFORCEMENT HOLDS


   7282.  For purposes of this chapter, the following terms have the
following meanings:
   (a) "Eligible for release from criminal custody" means that the
individual may be released from criminal custody because one of the
following conditions has occurred:
   (1) All criminal charges against the individual have been dropped
or dismissed.
   (2) The individual has been acquitted of all criminal charges
filed against him or her.
   (3) The individual has served all the time required for his or her
sentence.
   (4) The individual has posted a bond.
   (5) The individual is otherwise eligible for release under state
or local law, or local policy.
   (b) "Immigration hold" means an immigration detainer issued by an
authorized immigration officer, pursuant to Section 287.7 of Title 8
of the Code of Federal Regulations, that requests that the law
enforcement official maintain custody of the individual for a period
not to exceed 48 hours, and to advise the authorized immigration
officer prior to the release of that individual.
   (c) "Law enforcement official" means any local agency or officer
of a local agency authorized to enforce criminal statutes,
regulations, or local ordinances or to operate jails or to maintain
custody of individuals in jails, and any person or local agency or
state governmental entity authorized to operate juvenile detention
facilities or to maintain custody of individuals in juvenile
detention facilities.
   (d) "Local agency" means any city, county, city and county,
special district, or other political subdivision of the state.
   (e) "Serious felony" means any of the offenses listed in
subdivision (c) of Section 1192.7 of the Penal Code and any offense
committed in another state which, if committed in California, would
be punishable as a serious felony as defined by subdivision (c) of
Section 1192.7 of the Penal Code.
   (f) "Violent felony" means any of the offenses listed in
subdivision (c) of Section 667.5 of the Penal Code and any offense
committed in another state which, if committed in California, would
be punishable as a violent felony as defined by subdivision (c) of
Section 667.5 of the Penal Code.
   7282.5.  An individual shall not be detained by a law enforcement
official on the basis of an immigration hold after that individual
becomes eligible for release from criminal custody, unless, at the
time the individual becomes eligible for release from criminal
custody, both of the following conditions are satisfied:
   (a) The individual has been convicted of a serious or violent
felony, according to a criminal background check or documentation
provided to the law enforcement official by United States Immigration
and Customs Enforcement.
   (b) The continued detention of the individual on the basis of the
immigration hold would not violate any federal, state, or local law,
or any local policy.
   7282.10.  (a) The legislative body of the local agency of the
jurisdiction that the individual is being detained in shall, prior to
or after complying with an immigration hold, adopt a plan that
monitors and guards against all of the following:
   (1) A United States citizen being detained pursuant to an
immigration hold.
   (2) Racial profiling.
   (3) Victims and witnesses to crime being discouraged from
reporting crimes.
   (b) This plan is a public record for purposes of the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1).
   (c) A local agency is not required to adopt a plan pursuant to
this section prior to complying with an immigration hold pursuant to
Section 7282.5. 
   SEC. 3.    The provisions of this act are severable.
If any provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that
can be given effect without the invalid provision or application.