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 custody, unless, at the time that the individual becomes eligible for release from custody, certain conditions are met, including, among other things, that the individual has been convicted of specified crimes.
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
P3 1individuals involved in a dispute without pressing charges. Victims
2or witnesses to crimes may otherwise have recourse to lawful status
3(such as U-visas or T-visas) that detention resulting from the Secure
4Communities program obstructs.
5(e) It is the intent of the Legislature that this act shall not be
6construed as providing, expanding, or ratifying the legal authority
7for any state or local law enforcement agency to detain an
8individual on an immigration hold.
Chapter 17.1 (commencing with Section 7282) is added
10to Division 7 of Title 1 of the Government Code, to read:
For purposes of this chapter, the following terms have
16the following meanings:
17(a) “Conviction” shall have the same meaning as subdivision
18(d) of Section 667 of the Penal Code.
19(b) “Eligible for release from custody” means that the individual
20may be released from custody because one of the following
21conditions has occurred:
22(1) All criminal charges against the individual have been
23dropped or dismissed.
24(2) The individual has been acquitted of all criminal charges
25filed against him or her.
26(3) The individual has served all the time required for his or her
28(4) The individual has posted a bond.
29(5) The individual is otherwise eligible for release under state
30or local law, or local policy.
31(c) “Immigration hold” means an immigration detainer issued
32by an authorized immigration officer, pursuant to Section 287.7
33of Title 8 of the Code of Federal Regulations, that requests that
34the law enforcement official to maintain custody of the individual
35for a period not to exceed 48 hours, excluding Saturdays, Sundays,
36and holidays, and to advise the authorized immigration officer
37prior to the release of that individual.
38(d) “Law enforcement official” means any local agency or
39officer of a local agency authorized to enforce criminal statutes,
40regulations, or local ordinances or to operate jails or to maintain
P4 1custody of individuals in jails, and any person or local agency
2authorized to operate juvenile detention facilities or to maintain
3custody of individuals in juvenile detention facilities.
4(e) “Local agency” means any city, county, city and county,
5special district, or other political subdivision of the state.
6(f) “Serious felony” means any of the offenses listed in
7subdivision (c) of Section 1192.7 of the Penal Code and any offense
8committed in another state which, if committed in California,
9 would be punishable as a serious felony as defined by subdivision
10(c) of Section 1192.7 of the Penal Code.
11(g) “Violent felony” means any of the offenses listed in
12subdivision (c) of Section 667.5 of the Penal Code and any offense
13committed in another state which, if committed in California,
14would be punishable as a violent felony as defined by subdivision
15(c) of Section 667.5 of the Penal Code.
(a) A law enforcement official shall have discretion
17to cooperate with federal immigration officials by detaining an
18individual on the basis of an immigration hold after that individual
19becomes eligible for release from custody only if the continued
20detention of the individual on the basis of the immigration hold
21would not violate any federal, state, or local law, or any local
22policy, and only under any of the following circumstances:
23(1) The individual has been convicted of a serious or violent
24felony identified in subdivision (c) of Section 1192.7 of, or
25subdivision (c) of Section 667.5 of, the Penal Code.
26(2) The individual has been convicted of a felony punishable
27by imprisonment in the state prison.
28(3) The individual has been convicted within the past five years
29of a misdemeanor for a crime that is punishable as either a
30misdemeanor or a felony for, or has been convicted at any time of
31a felony for, any of the following offenses:
32(A) Assault, as specified in, but not limited to, Sections 217.1,
33220, 240, 241.1, 241.4, 241.7, 244, 244.5, 245, 245.2, 245.3, 245.5,
344500, and 4501 of the Penal Code.
35(B) Battery, as specified in, but not limited to, Sections 242,
36243.1, 243.3, 243.4, 243.6, 243.7, 243.9, 273.5, 347, 4501.1, and
374501.5 of the Penal Code.
38(C) Use of threats, as specified in, but not limited to,
3971, 76, 139, 140, 422, 601, and 11418.5 of the Penal Code.
P5 1(D) Sexual abuse, sexual exploitation, or crimes endangering
2children, as specified in, but not limited to, Sections 266, 266a,
3266b, 266c, 266d, 266f, 266g, 266h, 266i, 266j, 267, 269, 288,
4288.5, 311.1, 311.3, 311.4, 311.10, 311.11, and 647.6 of the Penal
6(E) Child abuse or endangerment, as specified in, but not limited
7to, Sections 270, 271, 271a, 273a, 273ab, 273d, 273.4, and 278 of
8the Penal Code.
9(F) Burglary, robbery, theft, fraud, forgery, or embezzlement,
10as specified in, but not limited to, Sections 211, 215, 459, 463,
11470, 476, 487, 496, 503, 518, 530.5, 532, and 550 of the Penal
13(G) Driving under the influence of alcohol or drugs, but only
14for a conviction that is a felony.
15(H) Obstruction of justice, as specified in, but not limited to,
16Sections 69, 95, 95.1, 136.1, and 148.10 of the Penal Code.
17(I) Bribery, as specified in, but not limited to, Sections 67, 67.5,
1868, 74, 85, 86, 92, 93, 137, 138, and 165 of the Penal Code.
19(J) Escape, as specified in, but not limited to, Sections 107, 109,
20110, 4530, 4530.5, 4532, 4533, 4534, 4535, and 4536 of the Penal
22(K) Unlawful possession or use of a weapon, firearm, explosive
23device, or weapon of mass destruction, as specified in, but not
24limited to, Sections 171b, 171c, 171d, 246, 246.3, 247, 417, 417.3,
25417.6, 417.8, 4574, 11418, 11418.1, 12021.5, 12022, 12022.2,
2612022.3, 12022.4, 12022.5, 12022.53, 12022.55, 18745, 18750,
27 18755 of, and subdivisions (c) and (d) of Section 26100 of
28 the Penal Code.
29(L) Possession of an unlawful deadly weapon, under the Deadly
30Weapons Recodification Act of 2010 (Part 6 (commencing with
31Section 16000) of the Penal Code).
32(M) An offense involving the felony possession, sale,
33distribution, manufacture, or trafficking of controlled substances.
34(N) Vandalism with
prior convictions, as specified in, but not
35limited to, Section 594.7 of the Penal Code.
36(O) Gang-related offenses, as specified in, but not limited to,
37Sections 186.22, 186.26, and 186.28 of the Penal Code.
38(P) An attempt, as defined in Section 664 of, or a conspiracy,
39as defined in Section 182 of, the Penal Code, to commit an offense
40specified in this section.
P6 1(Q) A crime resulting in death, or involving the personal
2infliction of great bodily injury, as specified in, but not limited to,
3subdivision (d) of Section 245.6 of, and Sections 187, 191.5, 192,
4192.5, 12022.7, 12022.8, and 12022.9 of, the Penal Code.
5(R) Possession or use of a firearm in the commission of an
7(S) An offense that would require the individual to register as
8a sex offender pursuant to Section 290, 290.002, or 290.006 of the
10(T) False imprisonment, slavery, and human trafficking, as
11specified in, but not limited to, Sections 181, 210.5, 236, 236.1,
12and 4503 of the Penal Code.
13(U) Criminal profiteering and money laundering, as specified
14in, but not limited to, Sections 186.2, 186.9, and 186.10 of the
16(V) Torture and mayhem, as specified in, but not limited to,
17Section 203 of the Penal Code.
18(W) A crime threatening the public safety, as specified in, but
19not limited to, Sections 219, 219.1, 219.2, 247.5, 404, 404.6, 405a,
20451, and 11413 of the Penal Code.
21(X) Elder and dependent adult abuse, as specified in, but not
22limited to, Section 368 of the Penal Code.
23(Y) A hate crime, as specified in, but not limited to, Section
24422.55 of the Penal Code.
25(Z) Stalking, as specified in, but not limited to, Section 646.9
26of the Penal Code.
27(AA) Soliciting the commission of a crime, as specified in, but
28not limited to, subdivision (c) of Section 286 of, and Sections 653j
29and 653.23 of, the Penal Code.
30(AB) An offense committed while on bail or released on his or
31her own recognizance, as specified in, but not limited to, Section
3212022.1 of the Penal Code.
33(AC) Rape, sodomy, oral copulation, or sexual penetration, as
34specified in, but not limited to, paragraphs (2) and (6) of
35subdivision (a) of Section 261 of, paragraphs (1) and (4) of
36subdivision (a) of Section 262 of, Section 264.1 of, subdivisions
37(c) and (d) of Section 286 of, subdivisions (c) and (d) of Section
38288a of, and subdivisions (a) and (j) of Section 289 of, the Penal
P7 1(AD) Kidnapping, as specified in, but not limited to, Sections
2207, 209, and 209.5 of the Penal Code.
3(AE) A violation of subdivision (c) of Section 20001 of the
individual is a current registrant on the California Sex
6and Arson Registry.
7(5) The individual is arrested and taken before a magistrate on
8a charge involving a serious or violent felony, as identified in
9subdivision (c) of Section 1192.7 or subdivision (c) of Section
10667.5 of the Penal Code, a felony punishable by imprisonment in
11state prison, or any felony listed in paragraph (2) or (3) other than
12domestic violence, and the magistrate makes a finding of probable
13cause as to that charge pursuant to Section 872 of the Penal Code.
22(b) If none of the conditions listed in subdivision (a) is satisfied,
23an individual shall not be detained on the basis of an immigration
24hold after the individual becomes eligible for release from custody.
The provisions of this act are severable. If any
26provision of this act or its application is held invalid, that invalidity
27shall not affect other provisions or applications that can be given
28effect without the invalid provision or application.