BILL ANALYSIS                                                                                                                                                                                                    



                                                                      



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                                 THIRD READING


          Bill No:  AB 1081
          Author:   Ammiano (D)
          Amended:  8/15/12 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

           SENATE FLOOR  :  21-13, 7/5/12
          AYES:  Alquist, Calderon, Corbett, Correa, De Len, 
            DeSaulnier, Evans, Hancock, Hernandez, Kehoe, Leno, Lieu, 
            Liu, Lowenthal, Negrete McLeod, Padilla, Price, 
            Steinberg, Vargas, Wolk, Wright
          NOES:  Anderson, Berryhill, Cannella, Dutton, Fuller, 
            Gaines, Harman, Huff, La Malfa, Rubio, Strickland, 
            Walters, Wyland
          NO VOTE RECORDED:  Blakeslee, Emmerson, Pavley, Runner, 
            Simitian, Yee
           
          ASSEMBLY FLOOR  :  Not relevant


           SUBJECT  :    State government:  federal immigration policy 
          enforcement


                                                           CONTINUED






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           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 has the discretion to detain an 
          individual on the basis of an immigration hold after that 
          individual becomes eligible for release from criminal 
          custody, as specified.

           Senate Floor Amendments  of 8/15/12 (1) modify the 
          legislative findings and declarations; (2) allow law 
          enforcement agencies discretion to detain persons for more 
          than 48 hours on the basis of an immigration detainer where 
          that person is currently charged with a serious or violent 
          felony; (3) delete the requirement for local governments to 
          adopt a plan to prevent detention of U.S. citizens, racial 
          profiling, and discouraging crimes from being reported; (4) 
          delete state juvenile justice facilities from the 
          requirements of the bill; and (5) add a coauthor.

           NOTE:  This bill passed the Senate (21-13) on 7/5/12 and 
                 was returned to the Senate for these amendments.

           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 







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          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 
          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 a law enforcement official on the 
          basis of an immigration hold after that individual becomes 
          eligible for release from criminal custody has the 







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          discretion to detain an individual if 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 if either of the above conditions 
          are not satisfied, an individual shall not be detained on 
          the basis of an immigration hold after that individual 
          becomes eligible for release from criminal custody.

          This bill makes uncodified legislative findings and 
          declarations. 

          This bill provides that the provisions of this bill are 
          severable.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  No

           SUPPORT  :   (Verified  8/16/12)

          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 







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          California Bail Agents Association 
          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 
          Cities of Berkeley, Cudahy, and 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 
          Friends Committee on Legislation of California 







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          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 
          People Organizing to Demand Environmental and Economic 







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            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 
          Young Workers United 







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          Youth United for Community Action

           OPPOSITION  :    (Verified  8/16/12)

          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 
            also failed to provide accountability and transparency.  







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            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:

            We must oppose AB 1081 as amended on August 15, 2012, 
            which would leave Sheriffs' in a tremendous position of 
            liability.  The new amendments state that a] law 
            enforcement official has the discretion to detain an 
            individual  ONLY  under the following criteria: (1) The 
            individual has been convicted of a serious or violent 
            felony, felony according to a criminal background check 
            or documentation provided to the law enforcement official 
            by United State Immigration and Customs Enforcement (ICE) 
            or is currently in custody for a charge of a serious or 
            violent felony by a district attorney.  Or, (2) The 
            continued detention of the individual on the basis of the 
            immigration hold would not violate any federal, state, or 







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            local law, or any local policy.

            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.

            The bill leaves 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:n  11/13/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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