Amended in Senate June 14, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 4


Introduced by Assembly Member Ammiano

(Principal coauthors: Assembly Members Alejo and V. Manuel Pérez)

(Principal coauthor: Senator De León)

(Coauthor: Assembly Member Skinner)

December 3, 2012


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 4, 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, at the time that the individual becomes eligible for release from criminal custody, certain conditions are met.begin insert This bill would prohibit an immigration detainer or suspected or actual immigration status from being the basis for denial of certain pretrial or postconviction services and programs, rights, opportunities, or benefits to individuals in county custody. The bill also would prohibit a law enforcement official from arresting, detaining, or continuing to detain a person based on an administrative warrant entered into the Federal Bureau of Investigation’s National Crime Information Center database or a successor or similar database, when the administrative warrant is based solely on a violation of civil immigration law.end insert

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

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

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 Statesbegin delete citizensend delete
20begin insert citizens, end insert as 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.
P3    1The program can result in a person being held and transferred into
2immigration detention without regard to whether the arrest is the
3result of a mistake, or merely a routine practice of questioning
4individuals involved in a dispute without pressing charges. Victims
5or witnesses to crimes may otherwise have recourse to lawful status
6(such as U-visas or T-visas) that detention resulting from the Secure
7Communities program obstructs.

8(e) It is the intent of the Legislature that this act shall not be
9construed as providing, expanding, or ratifying the legal authority
10for any state or local law enforcement agency to detain an
11individual on an immigration hold.

12

SEC. 2.  

Chapter 17.1 (commencing with Section 7282) is added
13to Division 7 of Title 1 of the Government Code, to read:

14 

15Chapter  17.1. Standards for Responding to United
16States Immigration and Customs Enforcement Holds
17

 

18

7282.  

For purposes of this chapter, the following terms have
19the following meanings:

20(a) “Conviction” shall have the same meaning as subdivision
21(d) of Section 667 of the Penal Code.

22(b) “Eligible for release from criminal custody” means that the
23individual may be released from criminal custody because one of
24the following conditions has occurred:

25(1) All criminal charges against the individual have been
26dropped or dismissed.

27(2) The individual has been acquitted of all criminal charges
28filed against him or her.

29(3) The individual has served all the time required for his or her
30sentence.

31(4) The individual has posted a bond.

32(5) The individual is otherwise eligible for release under state
33or local law, or local policy.

34(c) “Immigration hold” means an immigration detainer issued
35by an authorized immigration officer, pursuant to Section 287.7
36of Title 8 of the Code of Federal Regulations, that requests that
37the law enforcement official to maintain custody of the individual
38for a period not to exceed 48 hours, excluding Saturdays, Sundays,
39and holidays, and to advise the authorized immigration officer
40prior to the release of that individual.

begin insert

P4    1(d) “Administrative warrant” means an immigration warrant
2issued by ICE, or a successor or similar federal agency charged
3with enforcement of civil immigration laws, used as a noncriminal,
4civil warrant for immigration purposes.

end insert
begin delete

5(d)

end delete

6begin insert(e)end insert “Law enforcement official” means any local agency or
7officer of a local agency authorized to enforce criminal statutes,
8regulations, or local ordinances or to operate jails or to maintain
9custody of individuals in jails, and any person or local agency
10authorized to operate juvenile detention facilities or to maintain
11custody of individuals in juvenile detention facilities.

begin delete

12(e)

end delete

13begin insert(f)end insert “Local agency” means any city, county, city and county,
14special district, or other political subdivision of the state.

begin delete

15(f)

end delete

16begin insert(g)end insert “Serious felony” means any of the offenses listed in
17subdivision (c) of Section 1192.7 of the Penal Code and any offense
18committed in another state which, if committed in California,
19 would be punishable as a serious felony as defined by subdivision
20(c) of Section 1192.7 of the Penal Code.

begin delete

21(g)

end delete

22begin insert(h)end insert “Violent felony” means any of the offenses listed in
23subdivision (c) of Section 667.5 of the Penal Code and any offense
24committed in another state which, if committed in California,
25would be punishable as a violent felony as defined by subdivision
26(c) of Section 667.5 of the Penal Code.

27

7282.5.  

(a) A law enforcement official has the discretion to
28detain an individual on the basis of an immigration hold after that
29individual becomes eligible for release from criminal custody,
30only if both of the following conditions are satisfied:

31(1) The individual has been convicted of a serious or violent
32felonybegin insert that, if committed in California on January 1, 2013, would
33result in a sentence to state prison,end insert
according to a criminal
34background check or documentation provided to the law
35enforcement official by United States Immigration and Customs
36Enforcement.

37(2) The continued detention of the individual on the basis of the
38immigration hold would not violate any federal, state, or local law,
39or any local policy.

P5    1(b) If either of the conditions set forth in subdivision (a) is not
2satisfied, an individual shall not be detained on the basis of an
3immigration hold after that individual becomes eligible for release
4from criminal custody.

begin insert

5(c) An immigration detainer or suspected or actual immigration
6status shall not be a basis to deny any pretrial or postconviction
7services and programs, rights, opportunities, or benefits to
8individuals in county custody, including alternatives to
9incarceration, rehabilitation, drug treatment, educational and
10vocational programs, early release, probation, bail, and release
11on their own recognizance.

end insert
begin insert

12(d) A law enforcement official shall not arrest, detain, or
13continue to detain a person based on an administrative warrant
14entered into the Federal Bureau of Investigation’s National Crime
15Information Center database or a successor or similar database
16maintained by the United States, when the administrative warrant
17is based solely on a violation of civil immigration law.

end insert
18

SEC. 3.  

The provisions of this act are severable. If any
19provision of this act or its application is held invalid, that invalidity
20shall not affect other provisions or applications that can be given
21effect without the invalid provision or application.



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