BILL ANALYSIS Ó
AB 1081
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Date of Hearing: April 26, 2011
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1081 (Ammiano) - As Amended: April 15, 2011
SUMMARY : Requires Immigration and Customs Enforcement (ICE) to
modify the current Secure Communities program (S-Comm) agreement
with California to allow counties to participate in the program
only upon the passage of an ordinance or resolution authorizing
participation. Specifically, this bill :
1)States legislative findings and declarations with respect to
memorandum of agreement (MOA) with the United States
Department of Homeland Security regarding the implementation
ICE's S-Comm program that the Bureau of Criminal
Identification and Information within the Department of
Justice entered into on April 10, 2009.
2)Allows local counties to opt-in to S-Comm only by passing an
ordinance or resolution authorizing participation by the
legislative body of the local government.
3)Requires counties that opt to participate in S-Comm to prepare
a plan, which will be deemed a public record for purposes of
the California Public Records Act, to monitor and guard
against racial profiling, discouraging reporting by domestic
violence victims, and harming community policing overall.
4)Requires the plan to include the following:
a) Stop and arrest data broken down by race, ethnicity,
nationality, gender, arresting charge, booking charge and
ultimate disposition of booking charge;
b) The number of individuals identified for transfer to ICE
officials through S-Comm and a breakdown of demographics
and criminal history of those individuals by race,
ethnicity, nationality, gender, booking charge, ultimate
disposition of booking charges, S-Comm offense level, and
most serious prior conviction, if any;
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c) The number of individuals held on ICE detainers and the
length of those detentions; and,
d) Number of "911" calls with victim data broken down by
race, ethnicity and gender.
5)Requires the modified agreement to include the following
exemptions and limitations to S-Comm:
a) Local law enforcement agencies shall not share the
fingerprints of domestic violence victims with ICE
officials; and,
b) Local law enforcement agencies shall not share the
fingerprints of juveniles with ICE officials.
6)Limits sharing of fingerprints under the program to those of
individuals convicted, rather than merely accused, of a crime.
7)Prohibits against obtaining fingerprints for the purposes of
S-Comm program through the use of checkpoints, and the
stopping of individuals solely based on perceived immigration
status.
8)Requires that ICE establish a complaint mechanism that allows
for expedited review of claims by those put into immigration
removal proceedings prior to conviction as a result of S-Comm.
9)Requires that Immigration and Customs Enforcement make
available to the public on its Internet Web site quarterly
statistics on S-Comm in California, including information on
the following:
a) Number of searches to IDENT (Automated Biometric
Identification System);
b) Number of matches to IDENT;
c) Number of detainers issued by ICE based on Level 1,
Level 2, and Level 3 offense categories;
d) Number of detainers issued by ICE where charges are
never filed, are later dismissed or where there is
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ultimately no conviction;
e) Number of Level 1, Level 2, and Level 3 arrestees who
are transferred into ICE custody after being subjected to
an ICE 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 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 S-Comm; and,
i) Nationality, age, and gender of individuals identified
and removed through S-Comm.
10)States that ICE must terminate the MOA if these requirements
cannot be fulfilled.
EXISTING LAW :
1)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 for discovery
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. (Labor Code Section 1171.5.)
2)Requires, under S-Comm, developed by the United States
Department of Homeland Security and ICE in March 2008, that
participating local law enforcement agencies submit arrestees'
fingerprints to ICE and Federal Bureau of Investigation
databases, the United States Visitor and Immigrant Status
Indicator Technology Program (US-VISIT), and IDENT, and allows
these federal agencies to access the arrestee's documented
criminal and immigration history. According to ICE statements
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and materials, S-Comm is intended to target dangerous
criminals and those who pose threats to public safety.
S-Comm is intended to identify and prioritize for removal
undocumented immigrants based on the following
classifications:
a) Level 1 - Individuals who have been convicted of major
drug offenses and violent crimes such as murder,
manslaughter, rape, robbery or kidnapping;
b) Level 2 - Individuals who have been convicted of minor
drug and property offenses such as burglary, larceny,
fraud, and money laundering; and,
c) Level 3 - Individuals who have been convicted of other
offenses.
On April 10, 2009, California's Department of Justice entered
into a MOA with ICE to implement S-Comm in California
counties.
3)Authorizes the Secretary of Homeland Security under the 287(g)
program to enter into agreements that delegate immigration
powers to local police. The negotiated agreements between ICE
and the local police are documented in MOAs. Ý8 U.S.C. §
1357(g).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "S-Comm is an
extremely problematic program that enlists local law
enforcement to engage in civil immigration enforcement through
the sharing of biometric data at the point of arrest. The
program automatically leads to investigation of the
immigration background of every individual, citizen or
non-citizen, at the point of arrest by electronically
crosschecking fingerprints through an immigration database
allowing ICE officials to detain and deport undocumented
individuals - without the basic right to a day in court.
"While the United States' ICE stated mission for the
controversial S-Comm program is to target serious offenses,
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the program casts far too wide a net. ICE's own data shows
over 70% of people deported under S-Comm had no convictions or
were accused only of minor offenses. Unfortunately, this
program is unfairly impacting innocent people, victims of
crime, and even survivors of domestic violence who have called
the police for help.
"This program is eroding trust between immigrant communities and
local law enforcement because immigrant residents who are
victims or witnesses to a crime now fear cooperating with
police since any contact can now result in separation from
their families and deportation. As a result, years of
community policing initiatives are ruined as entire
communities lose trust in law enforcement and stop reporting
crimes or seeking help. S-Comm makes us all less safe and
sends the state in the wrong direction. The program is
exactly what ICE said it is not supposed to be, a simple tool
for mass, indiscriminate non-criminal immigration enforcement.
"In addition to the public safety concerns, S-Comm has also
failed to provide accountability and transparency. ICE has
given contradictory and inconsistent answers to questions from
Congress, media, and local officials regarding the
participation of unwilling jurisdictions. This bill brings
S-Comm out of its shadowy misinformation and creates clear
reporting requirements that let us know how it's operating and
who is impacted.
"Forcing this problematic program on localities against their
will creates an undue burden and jeopardizes local community
policing strategies. This bill enables municipalities
concerned with the inherent problems of S-Comm to choose not
to participate while those who opt-in will have the option to
do so with safeguards to protect our communities from the
program's pitfalls. This bill adds safeguards to protect
Californians and prevent civil rights violations. If
localities want to participate, this bill will require a plan
to prevent racial profiling and keep children, crime victims,
or survivors of domestic violence from being wrongfully
targeted."
2)Background : According to background provided by the author,
"California was one of the earliest states to sign on to
S-Comm, in the Spring of 2009. The MOA that California signed
is the boiler plate agreement that ICE puts forward as a first
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offer to every state. Since California signed on, however, it
has become clear that ICE is willing to negotiate
modifications to make MOAs responsive to specific state
concerns. Colorado, New York, and Indiana have all negotiated
modified MOAs. Also, Washington State and Washington D.C.
have refused to enter into a MOA with ICE."
3)Secure Communities Program Concerns : This program has created
controversy and raised concerns among local law enforcement,
civil rights organizations, and community leaders.
a) Public safety: Tasking law enforcement with immigration
enforcement duties creates fear and disincentivizes victims
and witnesses to crime to report criminal activity.
ÝImmigration Bait and Switch, New York Times Editorial
(August 17, 2010).] Reported instances of domestic
violence victims, parties to minor traffic collisions, and
other incidental contacts with local law enforcement
resulting in arrest and deportation of non-criminal
undocumented immigrants have raised concerns among local
law enforcement in their ability to adequately serve and
protect communities with large immigrant populations.
ÝSasser, Secure Communities May Mean Deportation for
Domestic Violence Victims, (March 11, 2011), The Examiner
(as of April 20, 2011).] This creates a
chilling effect on the willingness of community members to
work with police officers to help investigate and apprehend
dangerous criminals.
b) Ability to opt-out not a real option: Under the
provisions of the MOA signed by then California's Attorney
General Jerry Brown, the S-Comm agreement may be terminated
by either party through written request. ICE documents and
public statements portrayed the program as a voluntary
partnership. In August 2009, an ICE spokesperson referred
to an opt-out procedure, noting that Secure Communities is
not a mandate but "considered a tool for law enforcement
agencies to use." (Brache, Can Cities Really Opt Out of
S-Comm? (September 2, 2010), Huffington Post <
http://www.huffingtonpost.com/afton-branche/can-cities-reall
y-opt-out_b_703431.html> (as of April 19, 2011), quoting
ICE official Mark Medvesky's statement to the Philadelphia
Inquirer (August 21, 2009).] When counties including San
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Francisco, Santa Clara and Arlington formally requested to
opt-out of S-Comm, ICE did not honor these requests.
Although unable to reference a law or provision that makes
S-Comm mandatory in local jurisdictions, ICE officials have
stated that S-Comm is mandatory and that it is not an
"opt-in, opt-out program." ÝGabrielson, Internal E-mails
Raise Questions About Mandatory Immigration Checks, (April
18, 2011), www.CaliforniaWatch.org/dailyreport, as of April
19, 2011; and Vedantam, Deportations of Illegal Immigrants
Climb to New Record, Washington Post, (October 6, 2010).]
c) Due Process concerns: The Constitution requires that
"Ýn]o person shall . . . be deprived of life, liberty, or
property, without due process of law." (U.S. Const. 5th
Amend.) The Constitution also provides, "nor shall any
State. . . Deny to any Person within its jurisdiction the
equal protection of the laws." (U.S. Const. 14th Amend.,
Section 1.) "ÝT]he Due Process Clause applies to all
'persons' within the United States, including non-citizens,
whether their presence here is lawful, unlawful, temporary,
or permanent." ÝZadvydas v. Davis, (2001) 533 U.S. 678,
693.] The Zadvydas court distinguished detentions based on
criminal proceedings versus detentions for civil
proceedings, with immigration and deportation proceedings
falling into the latter category. The Due Process Clause
requires that in criminal proceedings there must be
adequate procedural protections. (Id. at 690.) However,
S-Comm blurs the line between criminal and civil
proceedings. The only reason ICE has any access to the
undocumented immigrant is because he or she is arrested for
allegedly committing a crime. The arrest, interrogation,
and subsequent detention are criminal proceedings against
the undocumented immigrant.
S-Comm does not require a conviction prior to the arrestee's
fingerprints being shared with ICE and the FBI. As soon as
the person is arrested or otherwise taken into custody,
local law enforcement must fingerprint these individuals.
If the fingerprint comes up as match in FBI's database,
then ICE places a detainer on the arrestee until ICE can
assume custody of the arrestee. Local law enforcement who
are untrained in the nuances of immigration law are not
always aware that ICE detainers are only requests, not
mandates, and detainers can last up to 48 hours, excluding
Saturdays, Sundays, and holidays. (Immigration and
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Nationality Act §287.8.) Thus, a person who is not
officially charged with a crime or whose charges are later
dropped are regardless kept in jail without legal
representation or any mechanism to challenge his or her
detention.
d) Pre-textual stops and racial profiling: Due to the
pre-conviction nature of S-Comm, local law enforcement may
be encouraged to stop people who appear to be foreign
nationals without a legal basis for the stop, which poses
Fourth Amendment concerns. "ÝW]henever a police officer
accosts an individual and restrains his freedom to walk
away, he has 'seized' that person," and the Fourth
Amendment requires that the seizure be "reasonable."
ÝTerry v. Ohio (1968) 392 U.S. 1, 16.] The prohibition
against unreasonable searches and seizures extends to the
brief investigatory stop of a vehicle. ÝU.S. v.
Brignoni-Ponce, (1975) 422 U.S. 873, 880; U.S. v.
Garcia-Camacho (9th Cir. 1995) 53 F.3d 244, 245.] An
officer may not detain a motorist without a showing of
reasonable suspicion. This objective basis, or reasonable
suspicion, must consist of specific, articulable facts
which, together with objective and rational inferences,
form the basis for suspecting that the particular person
detained is engaged in criminal activity. ÝBrignoni-Ponce,
supra at 884.] Ethnic appearance is not an appropriate
factor in the reasonable suspicion analysis. ÝU.S. v.
Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1132.]
In criminal law proceedings, pursuant to protections under
the Fourth Amendment, a court may suppress items or
statements obtained during an unlawful stop or seizure.
(U.S. Const. 5th Amend.; Penal Code Section 1538.5.) For
individuals arrested and detained under S-Comm, even if the
arrestee was unlawfully arrested or the charges are later
dropped, the arrestee will still likely be placed on an ICE
detainer for deportation proceedings because their
fingerprints are shared with ICE and the FBI upon arrest
only, not a conviction. This removes the deterrence police
officers normally face in making unlawful stops based on
racial profiling or perceived immigration status as ICE
will take them into custody once the criminal case is
concluded. Data from ICE confirms that some jurisdictions,
which have been notorious for racial profiling, such as
Maricopa County, Arizona, have disproportionately high
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rates of non-criminal S-Comm deportations. (U.S.
Immigration and Customs Enforcement, Secure Communities
IDENT/IAFIS Interoperability Monthly Statistics October 27,
2008 through Feb. 28, 2011.)
e) Goes beyond its stated purpose: The stated priority of
S-Comm is to detain and remove undocumented immigrants who
have been convicted of serious crimes, including major drug
offenses and violent crimes such as murder, manslaughter,
rape, robbery and kidnapping. Recent national statistics
provided by ICE reveal that about one-third of all
undocumented immigrants who have been detained and removed
as a result of S-Comm fall into this prioritized category.
The remaining two-thirds are undocumented immigrants who
have been convicted of minor offenses or who have never
been convicted of a criminal offense. From October 2008 to
February 2011, California has deported 35,643 undocumented
immigrants using S-Comm. This is the highest of all the
states participating in S-Comm. Of the 35,643
deportations, 27% or 9,584 were non-criminals, which
included domestic abuse survivors and people who committed
minor traffic offenses. The statistics show that 41% or
14,587 of the 35,643 deportations are classified as ICE
low-level offenders including misdemeanors. (U.S.
Immigration and Customs Enforcement, Secure Communities
IDENT/IAFIS Interoperability Monthly Statistics October 27,
2008 through Feb. 28, 2011.)
4)The Connection between Crime and Undocumented Immigrants :
According to research, immigrants, including undocumented
immigrants, do not commit crimes at higher rates than
American-born residents. In February 2008, the Public Policy
Institute of California (PPIC) released a study, "Crime,
Corrections, and California. What does Immigration Have to do
With It?" PPIC is a private, non-profit organization
dedicated to informing and improving public policy in
California through independent, objective, non-partisan
research.
The study found that immigrants are far less likely than the
average United States native to commit crime in California.
For example, among men ages 18 to 40 (the age group most
likely to commit crime), United States-born inmates are 10
times more likely than the foreign-born inmates to be in jail
or prison. Even among non-citizen men from Mexico ages 18 to
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40 (a group disproportionately likely to have entered the
United States illegally), the authors find very low rates of
institutionalization. (The entire study can be found at
http://www.ppic.org/content/pubs/cacounts/CC_208KBCC.pdf.)
Another study, which tracked violent crime in 180 Chicago
neighborhoods, concluded that first-generation immigrants,
including undocumented immigrants, were 45% less likely to
commit violent acts than third-generation Americans. The study
also revealed that living in neighborhoods of concentrated
immigration was associated with lower violence. ÝRobert
Sampson, Rethinking Crime and Immigration, American
Sociological Association, (Winter 2008) Contexts, Vol. 7, No.
1, page 29.] Findings from such reports suggest that
longstanding fears of immigration as a threat to public safety
are unjustified.
5)Argument in Support : According to American Friends Service
Committee , "We have seen many instances in which members of
the immigrant community have been swept up for detention and
potential deportation based on traffic stops and other minor
incidents. This de-stabilizes communities and encourages
racial profiling and other forms of discrimination. We
believe AB 1081 will go a long way to prevent the abuses we
have seen in enforcing these federal immigration policies."
6)Argument in Opposition : According to Californians for
Population Stabilization , "The Secure Communities program is
one of our most effective tools for removing criminals and
making our neighborhoods safer. Under this program, tens of
thousands of foreign criminals in California have been
transferred to ICE, removed from our environs, and deported
from our country."
REGISTERED SUPPORT / OPPOSITION :
Support :
Alameda County Board of Supervisors
Alameda Labor Council, AFL-CIO
Alliance of South Asians Taking Action
American Civil Liberties Union
American Friends Service Committee, Pacific Mountain Region
American Friends Service Committee, U.S.-Mexico Border Program
Arab Resource and Organizing Center
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Asian Americans for Civil Rights & Equality
Asian Law Alliance
Asian Law Caucus, Co-Sponsor
Berkeley City Council
California Immigrant Policy Center
California Labor Federation
California Labor Foundation
California Partnership to End Domestic Violence
California State Council of the Service Employees International
Union (SEIU)
Canal Alliance
Central American Resource Center
Chinese for Affirmative Action
Coalition for Humane Immigrant Rights of Los Angeles
Community Action Board of Santa Cruz County
Community Legal Services in East Palo Alto
Community United Against Violence
Contra Costa Interfaith Supporting Community Organization
Council for Mexican Federations
Council on American-Islamic Relations California
Councilmember, District 4, City of Berkeley
Critical Resistance
David Campos, Member, Board of Supervisors, District 9, San
Francisco
Diocese of San Bernardino
East Bay Refugee Forum
Enlace
Equality California
Filipino Advocates for Justice
Graton Day Labor Center
Hayward Day Labor Center
Horizontal Alliance of Very Organized Queers
Immigrant Legal Resource Center
Immigration Center for Women and Children
Institute of Popular Education of Southern California
International Institute of the Bay Area
Justice for Immigrants
La Raza Centro Legal, Inc.
Lavender Youth Recreation and Information Center
Law Enforcement Engagement Initiative
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
Los Angeles Federation of Labor, AFL-CIO
Marin County Community
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Member, Board of Supervisors, District 1, San Francisco
Mexican American Legal Defense and Educational Fund
Mujeres Unidas y Activas
National Center for Lesbian Rights
National Day Laborer Organizing Network, co-sponsor
National Immigration Law Center
National Lawyers' Guild San Francisco Bay Area Chapter
National Network for Immigrant and Refugee Rights
Nicaragua Center for Community Action
Nuestra Casa
Oakland Centro Legal de la Raza
Oakland Community Organizations
Peninsula Interfaith Action
People Organizing to Demand Environmental and Economic Rights
Pomona Economic Opportunity Center
PUEBLO Action Fund
S.F. Pride at Work
San Francisco La Raza Lawyers Association
Santa Clara County Board of Supervisors
Services, Immigrant Rights & Education Network
Silicon Valley Alliance for Immigration Reform
Silicon Valley Community Foundation
St. Joseph the Worker Church, Social Justice Committee
Staff of the African Advocacy Network
Street Level Health Project
Supervisor, Board of Supervisors, District Two, Santa Clara
County
Supervisor, Board of Supervisors, Fifth District, Santa Cruz
County
Supervisor, Board of Supervisors, Fourth District, Santa Cruz
County
UNITE HERE, Local 2850
United Service Workers West
Young Workers United
Four private individuals
Opposition :
Californians for Population Stabilization
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
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