Amended in Senate June 24, 2013

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 frombegin delete criminalend delete custody, unless, at the time that the individual becomes eligible for release frombegin delete criminalend delete custody, certain conditions arebegin delete met. 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 lawend deletebegin insert met, end insertbegin insertincluding, among other things, that the individual has been convicted of specified crimesend 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 States citizens,
20as well as immigrants who are not deportable.

P3    1(d) The Secure Communities program and immigration detainers
2harm community policing efforts because immigrant residents who
3are victims of or witnesses to crime, including domestic violence,
4are less likely to report crime or cooperate with law enforcement
5when any contact with law enforcement could result in deportation.
6The program can result in a person being held and transferred into
7immigration detention without regard to whether the arrest is the
8result of a mistake, or merely a routine practice of questioning
9individuals involved in a dispute without pressing charges. Victims
10or witnesses to crimes may otherwise have recourse to lawful status
11(such as U-visas or T-visas) that detention resulting from the Secure
12Communities program obstructs.

13(e) It is the intent of the Legislature that this act shall not be
14construed as providing, expanding, or ratifying the legal authority
15for any state or local law enforcement agency to detain an
16individual on an immigration hold.

17

SEC. 2.  

Chapter 17.1 (commencing with Section 7282) is added
18to Division 7 of Title 1 of the Government Code, to read:

19 

20Chapter  17.1. Standards for Responding to United
21States Immigration and Customs Enforcement Holds
22

 

23

7282.  

For purposes of this chapter, the following terms have
24the following meanings:

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

27(b) “Eligible for release frombegin delete criminalend delete custody” means that the
28individual may be released frombegin delete criminalend delete custody because one of
29the following conditions has occurred:

30(1) All criminal charges against the individual have been
31dropped or dismissed.

32(2) The individual has been acquitted of all criminal charges
33filed against him or her.

34(3) The individual has served all the time required for his or her
35sentence.

36(4) The individual has posted a bond.

37(5) The individual is otherwise eligible for release under state
38or local law, or local policy.

39(c) “Immigration hold” means an immigration detainer issued
40by an authorized immigration officer, pursuant to Section 287.7
P4    1of Title 8 of the Code of Federal Regulations, that requests that
2the law enforcement official to maintain custody of the individual
3for a period not to exceed 48 hours, excluding Saturdays, Sundays,
4and holidays, and to advise the authorized immigration officer
5prior to the release of that individual.

begin delete

6(d) “Administrative warrant” means an immigration warrant
7issued by ICE, or a successor or similar federal agency charged
8with enforcement of civil immigration laws, used as a noncriminal,
9civil warrant for immigration purposes.

end delete
begin delete

6 10(e)

end delete

11begin insert(d)end insert “Law enforcement official” means any local agency or
12officer of a local agency authorized to enforce criminal statutes,
13regulations, or local ordinances or to operate jails or to maintain
14custody of individuals in jails, and any person or local agency
15authorized to operate juvenile detention facilities or to maintain
16custody of individuals in juvenile detention facilities.

begin delete

13 17(f)

end delete

18begin insert(e)end insert “Local agency” means any city, county, city and county,
19special district, or other political subdivision of the state.

begin delete

16 20(g)

end delete

21begin insert(f)end insert “Serious felony” means any of the offenses listed in
22subdivision (c) of Section 1192.7 of the Penal Code and any offense
23committed in another state which, if committed in California,
24 would be punishable as a serious felony as defined by subdivision
25(c) of Section 1192.7 of the Penal Code.

begin delete

22 26(h)

end delete

27begin insert(g)end insert “Violent felony” means any of the offenses listed in
28subdivision (c) of Section 667.5 of the Penal Code and any offense
29committed in another state which, if committed in California,
30would be punishable as a violent felony as defined by subdivision
31(c) of Section 667.5 of the Penal Code.

begin delete
32

7282.5.  

(a) A law enforcement official has the discretion to
33detain an individual on the basis of an immigration hold after that
34individual becomes eligible for release from criminal custody,
35only if both of the following conditions are satisfied:

36(1) The individual has been convicted of a serious or violent
37felony that, if committed in California on January 1, 2013, would
38result in a sentence to state prison, according to a criminal
39background check or documentation provided to the law
P5    1enforcement official by United States Immigration and Customs
2Enforcement.

3(2) The continued detention of the individual on the basis of the
4immigration hold would not violate any federal, state, or local law,
5or any local policy.

6(b) If either of the conditions set forth in subdivision (a) is not
7satisfied, an individual shall not be detained on the basis of an
8immigration hold after that individual becomes eligible for release
9from criminal custody.

10(c) An immigration detainer or suspected or actual immigration
11status shall not be a basis to deny any pretrial or postconviction
12services and programs, rights, opportunities, or benefits to
13individuals in county custody, including alternatives to
14incarceration, rehabilitation, drug treatment, educational and
15vocational programs, early release, probation, bail, and release on
16their own recognizance.

17(d) A law enforcement official shall not arrest, detain, or
18continue to detain a person based on an administrative warrant
19entered into the Federal Bureau of Investigation’s National Crime
20Information Center database or a successor or similar database
21maintained by the United States, when the administrative warrant
22is based solely on a violation of civil immigration law.

end delete
begin insert
23

begin insert7282.5.end insert  

(a) A law enforcement official shall have discretion
24to cooperate with federal immigration officials by detaining an
25individual on the basis of an immigration hold after that individual
26becomes eligible for release from custody only if the continued
27detention of the individual on the basis of the immigration hold
28would not violate any federal, state, or local law, or any local
29policy, and only under any of the following circumstances:

30(1) The individual has been convicted of a serious or violent
31felony identified in subdivision (c) of Section 1192.7 of, or
32subdivision (c) of Section 667.5 of, the Penal Code.

33(2) The individual has been convicted of a felony punishable by
34 imprisonment in the state prison.

35(3) The individual has been convicted within the past five years
36of a misdemeanor for a crime that is punishable as either a
37misdemeanor or a felony for, or has been convicted at any time of
38a felony for, any of the following offenses:

P6    1(A) Assault, as specified in, but not limited to, Sections 217.1,
2220, 240, 241.1, 241.4, 241.7, 244, 244.5, 245, 245.2, 245.3, 245.5,
34500, and 4501 of the Penal Code.

4(B) Battery, as specified in, but not limited to, Sections 242,
5243.1, 243.3, 243.4, 243.6, 243.7, 243.9, 273.5, 347, 4501.1, and
64501.5 of the Penal Code.

7(C) Use of threats, as specified in, but not limited to, Sections
871, 76, 139, 140, 422, 601, and 11418.5 of the Penal Code.

9(D) Sexual abuse, sexual exploitation, or crimes endangering
10children, as specified in, but not limited to, Sections 266, 266a,
11266b, 266c, 266d, 266f, 266g, 266h, 266i, 266j, 267, 269, 288,
12288.5, 311.1, 311.3, 311.4, 311.10, 311.11, and 647.6 of the Penal
13Code.

14(E) Child abuse or endangerment, as specified in, but not limited
15to, Sections 270, 271, 271a, 273a, 273ab, 273d, 273.4, and 278
16of the Penal Code.

17(F) Burglary, robbery, theft, fraud, forgery, or embezzlement,
18as specified in, but not limited to, Sections 211, 215, 459, 463,
19470, 476, 487, 496, 503, 518, 530.5, 532, and 550 of the Penal
20Code.

21(G) Driving under the influence of alcohol or drugs, but only
22for a conviction that is a felony.

23(H) Obstruction of justice, as specified in, but not limited to,
24Sections 69, 95, 95.1, 136.1, and 148.10 of the Penal Code.

25(I) Bribery, as specified in, but not limited to, Sections 67, 67.5,
2668, 74, 85, 86, 92, 93, 137, 138, and 165 of the Penal Code.

27(J) Escape, as specified in, but not limited to, Sections 107, 109,
28110, 4530, 4530.5, 4532, 4533, 4534, 4535, and 4536 of the Penal
29Code.

30(K) Unlawful possession or use of a weapon, firearm, explosive
31device, or weapon of mass destruction, as specified in, but not
32limited to, Sections 171b, 171c, 171d, 246, 246.3, 247, 417, 417.3,
33417.6, 417.8, 4574, 11418, 11418.1, 12021.5, 12022, 12022.2,
3412022.3, 12022.4, 12022.5, 12022.53, 12022.55, 18745, 18750,
3518755 of, and subdivisions (c) and (d) of Section 26100 of the
36Penal Code.

37(L) Possession of an unlawful deadly weapon, under the Deadly
38Weapons Recodification Act of 2010 (Part 6 (commencing with
39Section 16000) of the Penal Code).

P7    1(M) An offense involving the felony possession, sale, distribution,
2manufacture, or trafficking of controlled substances.

3(N) Vandalism with prior convictions, as specified in, but not
4limited to, Section 594.7 of the Penal Code.

5(O) Gang-related offenses, as specified in, but not limited to,
6Sections 186.22, 186.26, and 186.28 of the Penal Code.

7(P) An attempt, as defined in Section 664 of, or a conspiracy,
8as defined in Section 182 of, the Penal Code, to commit an offense
9specified in this section.

10(Q) A crime resulting in death, or involving the personal
11infliction of great bodily injury, as specified in, but not limited to,
12subdivision (d) of Section 245.6 of, and Sections 187, 191.5, 192,
13192.5, 12022.7, 12022.8, and 12022.9 of, the Penal Code.

14(R) Possession or use of a firearm in the commission of an
15offense.

16(S) An offense that would require the individual to register as
17a sex offender pursuant to Section 290, 290.002, or 290.006 of the
18Penal Code.

19(T) False imprisonment, slavery, and human trafficking, as
20specified in, but not limited to, Sections 181, 210.5, 236, 236.1,
21and 4503 of the Penal Code.

22(U) Criminal profiteering and money laundering, as specified
23in, but not limited to, Sections 186.2, 186.9, and 186.10 of the
24Penal Code.

25(V) Torture and mayhem, as specified in, but not limited to,
26Section 203 of the Penal Code.

27(W) A crime threatening the public safety, as specified in, but
28not limited to, Sections 219, 219.1, 219.2, 247.5, 404, 404.6, 405a,
29451, and 11413 of the Penal Code.

30(X) Elder and dependent adult abuse, as specified in, but not
31limited to, Section 368 of the Penal Code.

32(Y) A hate crime, as specified in, but not limited to, Section
33422.55 of the Penal Code.

34(Z) Stalking, as specified in, but not limited to, Section 646.9
35of the Penal Code.

36(AA) Soliciting the commission of a crime, as specified in, but
37not limited to, subdivision (c) of Section 286 of, and Sections 653j
38and 653.23 of, the Penal Code.

P8    1(AB) An offense committed while on bail or released on his or
2her own recognizance, as specified in, but not limited to, Section
312022.1 of the Penal Code.

4(AC) Rape, sodomy, oral copulation, or sexual penetration, as
5specified in, but not limited to, paragraphs (2) and (6) of
6subdivision (a) of Section 261 of, paragraphs (1) and (4) of
7subdivision (a) of Section 262 of, Section 264.1 of, subdivisions
8(c) and (d) of Section 286 of, subdivisions (c) and (d) of Section
9288a of, and subdivisions (a) and (j) of Section 289 of, the Penal
10Code.

11(AD) Kidnapping, as specified in, but not limited to, Sections
12207, 209, and 209.5 of the Penal Code.

13(AE) A violation of subdivision (c) of Section 20001 of the
14Vehicle Code.

15(4) The individual is a current registrant on the California Sex
16and Arson Registry.

17(5) The individual is arrested and taken before a magistrate on
18a charge involving a serious or violent felony, as identified in
19subdivision (c) of Section 1192.7 or subdivision (c) of Section
20667.5 of the Penal Code, a felony punishable by imprisonment in
21state prison, or any felony listed in paragraph (2) or (3) other than
22domestic violence, and the magistrate makes a finding of probable
23cause as to that charge pursuant to Section 872 of the Penal Code.

24(b) If none of the conditions listed in subdivision (a) is satisfied,
25an individual shall not be detained on the basis of an immigration
26hold after the individual becomes eligible for release from custody.

end insert
27

SEC. 3.  

The provisions of this act are severable. If any
28provision of this act or its application is held invalid, that invalidity
29shall not affect other provisions or applications that can be given
30effect without the invalid provision or application.



O

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