BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1081| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 1081 Author: Ammiano (D) Amended: 5/14/12 in Senate Vote: 21 PRIOR VOTES NOT RELEVANT SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/12/12 AYES: Hancock, Calderon, Liu, Price, Steinberg NOES: Anderson, Harman SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : Not relevant SUBJECT : State government: federal immigration policy enforcement SOURCE : Asian Law Caucus National Day Laborer Organizing Network California Immigrant Policy Center DIGEST : This bill (1) makes uncodified legislative findings and declarations; (2) provides that a law enforcement officer may not detain an individual on the basis of an immigration hold after that individual becomes eligible for release from criminal custody, as specified, unless the individual has been convicted of a serious or CONTINUED AB 1081 Page 2 violent felony, and 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; and (3) provides further that 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 a United States citizen being detained pursuant to an immigration hold, racial profiling and victims and witnesses to crime being discouraged from reporting crimes. Senate Floor Amendments of 5/14/12 provide that, once a person in custody is otherwise eligible for release from custody, law enforcement agencies may continue to detain that person on the basis of an immigration hold when (1) the person has a prior serious or violent felony conviction and (2) that detention does not violate any federal, state, or local law, or any local policy. This bill also requires any local government where such a person is held to adopt a plan to guard against racial profiling, detaining US citizens, discouraging crime victims and witnesses from reporting crimes. This plan would not need to be adopted prior to complying with an immigration hold. ANALYSIS : Existing federal law provides that any authorized immigration officer may at issue a Form I-247, Immigration Detainer-Notice of Action, to any other federal, state, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department of Homeland Security (DHS) seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the DHS, prior to release of the alien, in order for the DHS to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible. (8 Code of Federal Regulations (CFR) Section 287.7(a)) Existing federal law states that upon a determination by the DHS to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall CONTINUED AB 1081 Page 3 maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the DHS. (8 CFR Section 287.7(d)) Existing federal law 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 United States Immigration and Customs Enforcement (ICE) and the local police are documented in MOAs. (8 United States Code Section 1357(g)) Existing law 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) This bill provides that 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: 1. 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 ICE. 2. 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. This bill provides that the legislative body of the local CONTINUED AB 1081 Page 4 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: A United States citizen being detained pursuant to an immigration hold. Racial profiling. Victims and witnesses to a crime being discouraged from reporting crimes. This bill provides that the plan described above is a public record for purposes of the California Public Records Act, as specified. This bill provides that a local agency is not required to adopt a plan, as described above, prior to complying with an immigration hold, as specified. This bill makes uncodified legislative findings and declarations. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 6/26/12) Asian Law Caucus (co-source) National Day Laborer Organizing Network (co-source) California Immigrant Policy Center (co-source) American Civil Liberties Union American Friends Service Committee, San Diego Arab Resource and Organizing Center Archdiocese of San Francisco, Office of Public Policy and Social Concerns Asian Americans for Civil Rights & Equality Asian Pacific American Legal Center Associated Students of University of California, Berkeley Binational Front of Indigenous Organizations Black Alliance for Just Immigration Blacks in Law Enforcement of America Brazilian Alliance California Bail Agents Association CONTINUED AB 1081 Page 5 California Catholic Conference California Labor Federation California Partnership to End Domestic Violence California Public Defenders Association Californians United for a Responsible Budget Canal Alliance CARECEN SF Casa De Esperanza Central Valley DREAM Team Central Valley Partnership for Citizenship Centro Laboral de Graton Centro Legal de la Raza Chico Peace & Justice Center Chief of Police (Retired) Arturo Venegas, Sacramento Chief of Police Dennis Burns, Palo Alto Chief of Police Howard Jordan, Oakland Chinese for Affirmative Action City and County of San Francisco Board of Supervisors City of Berkeley City of Cudahy City of Patterson City of San Pablo City Council Coalition for Humane Immigrant Rights of Los Angeles Committee for Immigrant Right of Sonoma County Communities for a New California Education Fund Communities Organized to Support Adult Schools Community Action Board of Santa Cruz County, Inc. Community Legal Services in East Palo Alto Community United Against Violence Congress of Racial Equality of California Council on American-Islamic Relations California Council on American-Islamic Relations, California Councilmember (Retired) Veronica Jacobi, Santa Rosa Councilmember Cathy Murillo, Santa Barbara Councilmember Jorge Morales, South Gate Councilmember Rebecca Kaplan, Oakland County of Santa Cruz Day Worker Center of Mountain View Diocese of San Bernardino, Justice for Immigrants Office DREAM Team Los Angeles Equality California Filipino Advocates for Justice First Unitarian Church, Los Angeles CONTINUED AB 1081 Page 6 Friends Committee on Legislation of California Golden State Bail Agents Association Greater Long Beach ICO Human Relations Network of Butte County Immigrant Legal Resource Center Immigrant Youth Coalition Immigration Center for Women and Children Interfaith Coalition for Immigrant Rights Iranian American Bar Association, Northern California Chapter Jewish Community Relations Council La Clinica de La Raza La Raza Centro Legal, Inc. La Raza Student Cultural Center LA Voice PICO Law Office of Alicia Roman Lawyers' Committee for Civil Rights of the San Francisco Bay Area Legal Services for Prisoners With Children Long Beach Immigrant Rights Coalition Los Amigos of Orange County Los Angeles Federation of Labor, AFL-CIO Mayor Ann Schwab, Chico Mayor Antonio Villaraigosa, Los Angeles Mayor Gayle McLaughlin, Richmond Mayor Luis Molina, Patterson Mexican American Legal Defense and Educational Fund Mexican American Political Association - San Joaquin Valley Region Monterey County Immigration Coalition Mujeres Unidas y Activas NAACP, California State Conference National Immigration Law Center National Lawyers Guild San Francisco Bay Area chapter National Network for Immigrant and Refugee Rights North Bay Organizing Project Nuestra Casa Oakland Catholic Worker OMID Advocates for Human Rights Orange County Community Housing Corporation Orange County Congregation Community Organization Orange County May Day Coalition Peninsula Interfaith Action CONTINUED AB 1081 Page 7 People Organizing to Demand Environmental and Economic Right PICO California Placer People of Faith Together Pomona Economic Opportunity Center PUEBLO Redwood Forest Friends Meeting Refugee and Immigrant Services Program of Catholic Charities Rhema Word of Faith Richmond Vision Sacramento Area Congregations Together San Francisco Domestic Violence Consortium San Francisco Human Rights Commission San Francisco Immigrant Rights Commission San Francisco La Raza Lawyers Association San Francisco Organizing Project Santa Rosa-Sonoma County NAACP Services Immigrant Rights and Education Network Silicon Valley Community Foundation Sonoma County Human Rights Commission Southern California Coalition for Occupational Safety and Health Stanislaus County Board of Education Street Level Health Project Supervisor David Campos, San Francisco - District 9 Supervisor Doreen Farr, Santa Barbara - District 3 Supervisor Efren Carrillo, Sonoma - District 5 Supervisor George Shirakawa, Santa Clara - District 2 Supervisor Maureen Kirk, Butte County - District 3 Supervisor Salud Carbajal, Santa Barbara - District 1 UFW Unitarian Universalist Congregation, Santa Rosa Unitarian Universalist Legislative Ministry Action Network, California Unitarian Universalists of San Mateo UNITE HERE Local 2850 Vice Mayor Tiffany Renee, City of Petaluma West Contra Costa Unified School District Windsor Do Witnesses for Peace, Southwest Region WOMAN Inc. Women's International League for Peace and Freedom CONTINUED AB 1081 Page 8 Young Workers United Youth United for Community Action OPPOSITION : (Verified 6/26/12) California State Sheriffs' Association ARGUMENTS IN SUPPORT : According to the author: Secure Communities (S-Comm) is an Immigration and Customs Enforcement (ICE) 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 non-citizen individuals - without the basic right to a day in court. While U.S Immigration Customs and Enforcement's (ICE) stated mission for S-Comm is to target serious offenses, the program casts far too wide a net. ICE's own data shows that in California 7 out of 10 of the over 67,900 individuals deported under S-Comm had no convictions or were accused only of minor offenses. Unfortunately, this means immigrant residents who are victims or witnesses to a crime now fear cooperating with police since any contact with law enforcement can result in separation from their families and deportation. This program is eroding trust between immigrant communities and local law enforcement. 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 CONTINUED AB 1081 Page 9 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. Forcing this problematic program on localities against their will creates an undue burden and jeopardizes local community policing strategies. Local jails internalize the entire cost of submitting to ICE holds triggered by the program, which ask local authorities to hold individuals in local jails for a longer period of time. S-Comm does not provide any reimbursement to localities for the cost of participating in the program. At a time when localities are strapped for cash they should not be spending vital resources on federal civil immigration enforcement. AB 1081 will rebuild the trust that S-Comm has undermined between immigrant communities and local police by establishing statewide standards for responding to burdensome ICE hold requests. This bill sets a clear standard for local governments to not submit to ICE's request to detain an individual unless the individual has a serious or violent felony conviction. AB 1081 also requires localities to develop a plan to prevent racial profiling and keep children, crime victims, or survivors of domestic violence from being wrongfully targeted. ARGUMENTS IN OPPOSITION : The California State Sheriffs' Association writes: Currently, state and local jurisdictions cannot opt out of Secure Communities. Enforcing America's immigration laws is a federal responsibility. ICE prioritizes the removal of those who pose a danger to national security or public safety, repeat violators who game the immigration system, those who fail to appear at immigration hearings, and fugitives who have already been ordered removed by an immigration judge. Because the administration is committed to using immigration enforcement resource sin the way most beneficial to public safety, the primary focus in on convicted criminals, with a priority on aggravated felons. CONTINUED AB 1081 Page 10 The latest amendments to the bill leave Sheriffs' in a tremendous position of liability. It states 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. It is not the responsibility of Sheriff's to determine citizenship of arrestees. Additional liability rests in the racial profiling language of the bill, which is a subjective topic. Lastly, most agencies have current policies and procedures on how to work with victims and witnesses or crime. This bill creates additional mandates and liability in this area. RJG:m 6/26/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED