AB 4, as introduced, 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, at the time that the individual becomes eligible for release from criminal custody, certain conditions are met.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
The Legislature finds and declares all of the
3(a) The United States Immigration and Customs Enforcement’s
4(ICE) Secure Communities program shifts the burden of federal
5civil immigration enforcement onto local law enforcement. To
6operate the Secure Communities program, ICE relies on voluntary
7requests, known as ICE holds or detainers, to local law enforcement
8to hold individuals in local jails for additional time beyond when
9they would be eligible for release in a criminal matter.
10(b) State and local law enforcement agencies are not reimbursed
11by the federal government for the full cost of responding to a
12detainer, which can include, but is not limited to, extended
13detention time and the administrative costs of tracking and
14responding to detainers.
15(c) Unlike criminal detainers, which are supported by a warrant
16and require probable cause, there is no requirement for a warrant
17and no established standard of proof, such as reasonable suspicion
18or probable cause, for issuing an ICE detainer request. Immigration
19detainers have erroneously been placed on United States citizens
20as well as immigrants who are not deportable.
21(d) The Secure Communities program and immigration detainers
22harm community policing efforts because immigrant residents who
23are victims of or witnesses to crime, including domestic violence,
24are less likely to report crime or cooperate with law enforcement
25when any contact with law enforcement could result in deportation.
26The program can result in a person being held and transferred into
27immigration detention without regard to whether the arrest is the
28result of a mistake, or merely a routine practice of questioning
29individuals involved in a dispute without pressing charges. Victims
30or witnesses to crimes may otherwise have recourse to lawful status
31(such as U-visas or T-visas) that detention resulting from the Secure
32Communities program obstructs.
P3 1(e) It is the intent of the Legislature that this act shall not be
2construed as providing, expanding, or ratifying the legal authority
3for any state or local law enforcement agency to detain an
4individual on an immigration hold.
Chapter 17.1 (commencing with Section 7282) is added
6to Division 7 of Title 1 of the Government Code, to read:
For purposes of this chapter, the following terms have
12the following meanings:
13(a) “Conviction” shall have the same meaning as subdivision
14(d) of Section 667 of the Penal Code.
15(b) “Eligible for release from criminal custody” means that the
16individual may be released from criminal custody because one of
17the following conditions has occurred:
18(1) All criminal charges against the individual have been
19dropped or dismissed.
20(2) The individual has been acquitted of all criminal charges
21filed against him or her.
22(3) The individual has served all the time required for his or her
24(4) The individual has posted a bond.
25(5) The individual is otherwise eligible for release under state
26or local law, or local policy.
27(c) “Immigration hold” means an immigration detainer issued
28by an authorized immigration officer, pursuant to Section 287.7
29of Title 8 of the Code of Federal Regulations, that requests that
30the law enforcement official to maintain custody of the individual
31for a period not to exceed 48 hours, excluding Saturdays, Sundays,
32and holidays, and to advise the authorized immigration officer
33prior to the release of that individual.
34(d) “Law enforcement official” means any local agency or
35 officer of a local agency authorized to enforce criminal statutes,
36regulations, or local ordinances or to operate jails or to maintain
37custody of individuals in jails, and any person or local agency
38authorized to operate juvenile detention facilities or to maintain
39custody of individuals in juvenile detention facilities.
P4 1(e) “Local agency” means any city, county, city and county,
2special district, or other political subdivision of the state.
3(f) “Serious felony” means any of the offenses listed in
4subdivision (c) of Section 1192.7 of the Penal Code and any offense
5committed in another state which, if committed in California,
6would be punishable as a serious felony as defined by subdivision
7(c) of Section 1192.7 of the Penal Code.
8(g) “Violent felony” means any of the offenses listed in
9subdivision (c) of Section 667.5 of the Penal Code and any offense
10committed in another state which, if committed in California,
11would be punishable as a violent felony as defined by subdivision
12(c) of Section 667.5 of the Penal Code.
(a) A law enforcement official has the discretion to
14detain an individual on the basis of an immigration hold after that
15individual becomes eligible for release from criminal custody,
16only if both of the following conditions are satisfied:
17(1) The individual has been convicted of a serious or violent
18felony according to a criminal background check or documentation
19provided to the law enforcement official by United States
20Immigration and Customs Enforcement.
21(2) The continued detention of the individual on the basis of the
22immigration hold would not violate any federal, state, or local law,
23or any local policy.
24(b) If either of the conditions set forth in subdivision (a) is not
25satisfied, an individual shall not be detained on the basis of an
26immigration hold after that individual becomes eligible for release
27from criminal custody.
The provisions of this act are severable. If any
29provision of this act or its application is held invalid, that invalidity
30shall not affect other provisions or applications that can be given
31effect without the invalid provision or application.