BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 4
                                                                  Page  1

          Date of Hearing:  April 9, 2013
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 4 (Ammiano) - As Introduced:  December 3, 2012
           
           
           SUMMARY  :  Prohibits a law enforcement official from detaining an  
          individual on the basis of a United States Immigration and  
          Customs Enforcement (ICE) hold after that individual becomes  
          eligible for release from criminal custody, unless certain  
          conditions are met.  Specifically,  this bill  :

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

             a)   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; and,

             b)   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.

          2)States that "conviction" shall have the same meaning as Penal  
            Code 667(d).

          3)States that "eligible for release from criminal custody" means  
            that the individual may be released from criminal custody  
            because one of the following conditions has occurred:

             a)   All criminal charges against the individual have been  
               dropped or dismissed;

             b)   The individual has been acquitted of all criminal  
               charges filed against him or her;

             c)   The individual has served all the time required for his  








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               or her sentence;

             d)   The individual has posted a bond; or,

             e)   The individual is otherwise eligible for release under  
               state or local law, or local policy.

          4)Defines "immigration hold" as an immigration detainer issued  
            by an authorized immigration officer, pursuant to Section  
            287.7 of Title 8 of the Code of Federal Regulations (CFR),  
            that requests that the law enforcement official to maintain  
            custody of the individual for a period not to exceed 48 hours,  
            excluding Saturdays, Sundays, and holidays, and to advise the  
            authorized immigration officer prior to the release of that  
            individual.

          5)Defines "law enforcement official" as any local agency or  
            officer of a local agency authorized to enforce criminal  
            statutes, regulations, or local ordinances or to operate jails  
            or to maintain custody of individuals in jails, and any person  
            or local agency authorized to operate juvenile detention  
            facilities or to maintain custody of individuals in juvenile  
            detention facilities.

          6)Defines "local agency" as any city, county, city and county,  
            special district, or other political subdivision of the state.

          7)States that "serious felony" means any of the offenses listed  
            in Penal Code 1192.7(c) and any offense committed in another  
            state which, if committed in California, would be punishable  
            as a serious felony as defined by Penal Code 1192.7(c).

          8)States that "violent felony" means any of the offenses listed  
            in Penal Code Section 667.5(c) and any offense committed in  
            another state which, if committed in California, would be  
            punishable as a violent felony as defined by Penal Code  
            Section 667.5(c).

          9)Makes the following legislative findings and declarations:

             a)   ICE's Secure Communities program shifts the burden of  
               federal civil immigration enforcement onto local law  
               enforcement.  To operate the Secure Communities program,  
               ICE relies on voluntary requests, known as ICE holds or  
               detainers, to local law enforcement to hold individuals in  








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               local jails for additional time beyond when they would be  
               eligible for release in a criminal matter.

             b)   State and local law enforcement agencies are not  
               reimbursed by the federal government for the full cost of  
               responding to a detainer, which can include, but is not  
               limited to, extended detention time and the administrative  
               costs of tracking and responding to detainers.

             c)   Unlike criminal detainers, which are supported by a  
               warrant and require probable cause, there is no requirement  
               for a warrant and no established standard of proof, such as  
               reasonable suspicion or probable cause, for issuing an ICE  
               detainer request.  Immigration detainers have erroneously  
               been placed on United States citizens as well as immigrants  
               who are not deportable.

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

          10)                 Provides legislative intent that this act  
            shall not be construed as providing, expanding, or ratifying  
            the legal authority for any state or local law enforcement  
            agency to detain an individual on an immigration hold.

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

           EXISTING FEDERAL LAW  : 









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          1)Provides that any authorized immigration officer may at any  
            time issue a Form I-247, Immigration Detainer-Notice of  
            Action, to any other federal, state, or local law enforcement  
            agency.  A 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 CFR Section  
            287.7(a).]

          2)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).]

          3)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 ICE  
            and the local police are documented in memorandum of  
            agreements (MOAs). [8 U.S.C. Section 1357(g).]

          4)States that the powers not delegated to the United States by  
            the Constitution, nor prohibited by it to the States, are  
            reserved to the States respectively, or to the people.  (U.S.  
            Const. 10th Amend.)

          5)Provides that no State shall make or enforce any law which  
            shall abridge the privileges or immunities of citizens of the  
            United States; nor shall any State deprive any person of life,  
            liberty, or property, without due process of law; nor deny to  
            any person within its jurisdiction the equal protection of the  
            laws.  (U.S. Const. 14th Amend.)

           EXISTING LAW  :

          1)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  








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            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.)

          2)Provides that a person may not be deprived of life, liberty,  
            or property without due process of law or denied equal  
            protection of the laws; provided, that nothing contained  
            herein or elsewhere in this Constitution imposes upon the  
            State of California or any public entity, board, or official  
            any obligations or responsibilities which exceed those imposed  
            by the Equal Protection Clause of the 14th Amendment to the  
            United States Constitution with respect to the use of pupil  
            school assignment or pupil transportation.  (Cal. Const., art.  
            I,  7.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "The  
            controversial federal 'Secure Communities' program, also known  
            as S-Comm, automatically checks the immigration background of  
            every individual at the point of arrest by sharing fingerprint  
            data with U.S. Immigration Customs and Enforcement (ICE).  If  
            there is a match in the flawed database ICE then sends a  
            detainer request asking localities to detain and individual  
            for extra time, at local expense, so they can be picked up for  
            deportation. 

          "The stated mission of the S-Comm program is to target serious  
            offenders, however in California 70% of the 72,694  
            Californians deported are people without criminal records,  
            including victims of domestic violence, or people charged with  
            lesser offenses, including misdemeanors.

          "Contrary to its goal S-Comm has actually harmed public safety  
            and seriously undercut community policing strategies.

          "Under S-Comm, victims of crime, including survivors of domestic  
            violence, are unwilling to risk separation from their families  
            and deportation by cooperating with local law enforcement.








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          "Due to these harmful effects of S-Comm, criticism of this  
            program is drastically expanding nationwide.  Should AB 4 be  
            signed into law, California would not be the first to enact  
            detainer reform.  Cook County Illinois, Milwaukee Wisconsin,  
            Washington DC, and Santa Clara County here in California have  
            all set parameters around responding to detainer requests. 

          "AB 4 will establish a statewide standard for responding to ICE  
            holds and will prevent the prolonged detention of people who  
            would otherwise be released from custody if it were not for  
            ICE's request.

          "This bill only allows individuals who have been convicted of a  
            serious or violent felony to be detained ensuring that  
            California's participation in S-Comm is consistent with ICE's  
            stated goals for the program." 

          2)Background on the Secure Communities Program  :  The Secure  
            Communities Program (S-Comm) was developed by DHS and ICE in  
            March 2008.  Under the program, participating local law  
            enforcement agencies would submit arrestees' fingerprints to  
            ICE and Federal Bureau of Investigation databases, the United  
            States Visitor and Immigrant Status Indicator Technology  
            Program (US-VISIT), and IDENT (Automated Biometric  
            Identification System).  The program allowed these federal  
            agencies to access the arrestee's documented criminal and  
            immigration history.  According to ICE statements and  
            materials, S-Comm is intended to target dangerous criminals  
            and those who pose threats to public safety. 

          Initially, S-Comm was described as a voluntary program which  
            required MOAs between ICE and individual states for its  
            operation in each jurisdiction.  The MOAs were only to be in  
            effect until either party decided to terminate the agreement.   
            Additionally, states and localities were initially told that  
            there would be an opportunity to opt-out of the program.   
            After localities attempted to opt-out of S-Comm, ICE declared  
            that MOAs are not required for the deployment of S-Comm and  
            that opting-out was not allowed.  [ICE Response to the Task  
            Force on Secure Communities Findings and Recommendations (Apr.  
            27, 2012), pp. 4-5; Aguilasocho, et al., Misplaced Priorities:  
             The Failure of Secure Communities in Los Angeles County (Jan.  
            2012)  
             AB 4
                                                                  Page  7

            win-ashar.pdf> (as of Apr. 3, 2013) p. 4-8.]

          Under S-Comm, ICE has stated that it prioritizes the removal of  
            individuals based on the following order:  (i) Level One  
            offenders with the highest priority are those convicted of  
            aggravated felonies as defined, or two or more felonies; (ii)  
            Level Two offenders are those convicted of any felony, or  
            three or more misdemeanors; and (iii) Level Three offenders  
            are those convicted of crimes punishable by less than one  
            year.  Additionally, ICE prioritizes the removal of  
            individuals who are not criminals, but who are repeat border  
            crossers, recently unlawful entrants, or fugitives form the  
            immigration court system. [ICE Response to the Task Force on  
            Secure Communities Findings and Recommendations, supra, pp.  
            6-7.]

          After S-Comm was implemented, data revealed that most of the  
            individuals detained were non-criminals or those who had  
            committed infractions or other minor crimes, not those that  
            had committed serious offenses.  The most recent national  
            statistics provided by ICE reveal that about 24% of all  
            undocumented immigrants who have been detained and removed as  
            a result of S-Comm fall into this prioritized category.  The  
            remaining 76% are undocumented immigrants who have been  
            convicted of minor offenses or who have never been convicted  
            of a criminal offense.  California has deported 93,571  
            undocumented immigrants using S-Comm from October 2008 to  
            February 2013.  Of the 93,571 deportations, about 24% or  
            22,431 were non-criminals.  The statistics also show that 44%  
            or 40,770 of the 93,571 deportations are classified as ICE  
            low-level offenders including misdemeanors.  (U.S. Immigration  
            and Customs Enforcement, Secure Communities IDENT/IAFIS  
            Interoperability Monthly Statistics October 27, 2008 through  
            Feb. 28, 2013.) 

          Additionally, localities reported  that S-Comm forced them to  
            internalize financial costs of detaining people in local jails  
            before they are transferred to ICE custody and that the  
            program created harm to community policing because of the fear  
            that any contact with police-even by a crime victim or witness  
            calling 911-could lead to deportation.  (Aguilasocho, et al.,  
            Misplaced Priorities:  The Failure of Secure Communities in  
            Los Angeles County, supra, p. 2.)

           3)Voluntariness of Immigration Detainers  :  Federal regulation 8  








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            CFR Section 287.7 contains language that is ambiguous as to  
            the voluntariness of immigration detainers.  In the first part  
            of the regulation, the language states that an immigration  
            detainer is characterized as a "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 CFR Section 287.7(a).]  However, the  
            regulation later states that the 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).]

          At least one court has held that a "detainer is not a criminal  
            warrant, but rather a voluntary request that the law  
            enforcement agency 'advise [DHS], prior to release of the  
            alien, in order for [DHS] to arrange to assume custody.'  The  
            detainer automatically expires at the end of the 48-hour  
            period."  [8 CFR Section 287.7; Buquer v. City of Indianapolis  
            (S.D. Ind. 2011) 797 F. Supp. 2d 905, 911.] 

          Recently, the California Attorney General (AG) has taken the  
            position that these requests are voluntary and that local law  
            enforcement agencies can make their own determinations on  
            whether to fulfill a request for an immigration hold.  In an  
            information bulletin to executives of state and local law  
            enforcement agencies, the AG stated that "[s]everal local law  
            enforcement agencies appear to treat immigration detainers,  
            sometimes called 'ICE holds,' as mandatory orders.  But  
            immigration holds are not compulsory.  Instead, they are  
            merely requests enforceable at the discretion of the agency  
            holding the individual arrestee. We reach this conclusion both  
            because the I-247 form is couched in non-mandatory language  
            and because the Tenth Amendment to the U.S. Constitution  
            reserves power to the states to conduct their affairs without  
            specific mandates from the federal government.  Under the  
            Secure Communities Program, the federal government neither  
            indemnifies nor reimburses local law enforcement agencies for  
            complying with immigration detainers."  (Citations omitted.)   
            [California Department of Justice, Responsibilities of Local  
            Law Enforcement Agencies under Secure Communities (Dec. 4,  
            2012), p. 2.]

           4)The Connection between Crime and Undocumented Immigrants  ?   
            According to research, immigrants, including undocumented  








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            immigrants, do not commit crimes at higher rates than  
            American-born residents.  In February 2008, the Public Policy  
            Institute of California (PPIC) released a study, "Crime,  
            Corrections, and California. What does Immigration Have to do  
            With It?"  PPIC is a private, non-profit organization  
            dedicated to informing and improving public policy in  
            California through independent, objective, non-partisan  
            research.  

          The study found that immigrants are far less likely than the  
            average United States native to commit crime in California.   
            For example, among men ages 18 to 40 (the age group most  
            likely to commit crime), United States-born inmates are 10  
            times more likely than the foreign-born inmates to be in jail  
            or prison.  Even among non-citizen men from Mexico ages 18 to  
            40 (a group disproportionately likely to have entered the  
            United States illegally), the authors find very low rates of  
            institutionalization.  (The entire study can be found at  
            .)

          Another study, which tracked violent crime in 180 Chicago  
            neighborhoods, concluded that first-generation immigrants,  
            including undocumented immigrants, were 45% less likely to  
            commit violent acts than third-generation Americans. The study  
            also revealed that living in neighborhoods of concentrated  
            immigration was associated with lower violence.  [Robert  
            Sampson, Rethinking Crime and Immigration, American  
            Sociological Association, (Winter 2008) Contexts, Vol. 7, No.  
            1, page 29.]  Findings from such reports suggest that  
            longstanding fears of immigration as a threat to public safety  
            are unjustified.

           5)AB 1081 Governor's Veto Message  :  "Undocumented immigrants  
            play a major role in California's economy, with many  
            performing low-wage jobs that others don't want. Comprehensive  
            immigration reform-including a path to citizenship-would  
            provide tremendous economic benefits and is long overdue.  
            Until we have immigration reform, federal agents shouldn't try  
            to coerce local law enforcement officers into detaining people  
            who've been picked up for minor offenses and pose no  
            reasonable threat to their community.

          "But I am unable to sign this bill as written. Under the bill,  
            local officers would be prohibited from complying with an  
            immigration detainer unless the person arrested was charged  








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            with, or has been previously convicted of, a serious or  
            violent felony. Unfortunately, the list of offenses codified  
            in the bill is fatally flawed because it omits many serious  
            crimes. For example, the bill would bar local cooperation even  
            when the person arrested has been convicted of certain crimes  
            involving child abuse, drug trafficking, selling weapons,  
            using children to sell drugs, or gangs. I believe it's unwise  
            to interfere with a sheriff's discretion to comply with a  
            detainer issued for people with these kinds of troubling  
            criminal records.

          "The significant flaws in this bill can be fixed, and I will  
            work with the Legislature to see that the bill is corrected  
            forthwith."

           6)Argument in Support  :  According to the  American Civil  
            Liberties Union  , "S-Comm is a controversial Immigration and  
            Customs Enforcement (ICE) program which has undercut community  
            policing strategies.  Since its implementation, S-Comm has led  
            to the deportation of over 92,000 California residents as of  
            January 2013 - more than any other state.  Contrary to the  
            program's stated goal of prioritizing serious felony offenses,  
                                       the vast majority of those deported, about 7 out of 10, are  
            categorized by ICE as either 'non-criminals' or individuals  
            with lesser offenses, including traffic violations.  Even U.S.  
            citizens, survivors of domestic violence, and immigrants  
            arrested only for selling street food without a permit have  
            been unfairly detained due to S-Comm.

          "Despite changes announced to the program, a report from the  
            University of California Irvine's Immigrant Rights Clinic  
            found that 'ICE's failure to adhere to its own stated  
            priorities is a feature rather than a reparable flaw' of  
            S-Comm.  Thus, immigrant victims and witnesses of crime may be  
            afraid to come forward to cooperate with law enforcement for  
            fear they could be detained for deportation by ICE.

          "The TRUST Act will set reasonable limits for local responses to  
            ICE's burdensome 'detainer' requests, the linchpin of the  
            failed S-Comm program.  These holds are voluntary under  
            federal regulations and federal statute.  Currently, local  
            jails bear the brunt of the costs of responding to these  
            requests.  This includes the cost of tracking and responding  
            to ICE detainers, and the additional time community members  
            are held beyond the point they would normally be  








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            released."(Footnotes omitted.)

           7)Argument in Opposition  :  The  California State Sheriffs'  
            Association  writes, "As noted by Governor Brown in his veto of  
            Assembly Bill 1081, this measure would require the release of  
            offenders into the community that have been convicted of many  
            serious crimes, including but not drug trafficking, child  
            abuse, domestic violence, and solicitation for murder.  In  
            addition, even if a person is in custody and has no apparent  
            record of prior state criminal offenses, it does not mean that  
            the person has not committed serious violations of federal law  
            or is not a threat to national security or public safety.   
            While the Department of Homeland Security has been criticized  
            in the past for not providing sufficient information with  
            respect to its detainer requests, it should not be presumed  
            that a detainer request involving someone without significant  
            prior criminal history should be ignored, especially now that  
            the Department of Homeland Security has updated the DHS Form  
            1-247."

           8)Related Legislation  :  

             a)   AB 351 (Donnelly) enacts the California Liberty  
               Preservation Act which prohibits state cooperation with  
               federal officials regarding the indefinite detention of  
               persons in California.  AB 351 will be heard by this  
               Committee today.

             b)   AB 524 (Mullin) provides that a threat to report the  
               immigration status or suspected immigration status of an  
               individual or the individual's family may induce fear  
               sufficient to constitute extortion.  AB 524 is pending  
               hearing by the Committee on Appropriations.

           9)Prior Legislation  :  AB 1081 (Ammiano), of the 2011-12  
            Legislative Session, was substantially similar to this bill.   
            AB 1081 was vetoed.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Civil Liberties Union of Northern California  
          (Co-Sponsor)
          California Immigrant Policy Center (Co-Sponsor)








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          Mexican American Legal Defense and Education Fund (Co-Sponsor)
          American Civil Liberties Union of Santa Cruz County
          American Friends Service Committee's US-Mexico Border Project
          Asian Americans for Civil Rights & Equality
          Asian Law Alliance 
          Black Alliance for Just Immigration
          California Catholic Conference, Inc.
          California Public Defenders Association
          Cal-Islanders Humanitarian Association
          Canal Alliance
          Central American Resource Center - Los Angeles
          Central American Resource Center - San Francisco
          Central Valley Partnership for Citizenship
          Centro Laboral de Graton
          Chinese for Affirmative Action
          Diocese of Orange
          Dream Team Los Angeles
          East Bay Interfaith Committee for Worker Justice
          East Bay Sanctuary Covenant
          Filipino Advocates for Justice
          Fresno Interdenominational Refugee Ministries
          Golden State Bail Agents Association
          Greater Long Beach Interfaith Community Organization
          Immigrant Legal resource Center
          Immigration Center for Women and Children
          Immigration Task Force of California Nevada Annual Conference
          Inland Congregations United for Change 
          Interfaith Coalition for Immigrant Rights 
          L.A. Gay and Lesbian Center
          Lutheran Office of Public Policy - California
          Mujeres Unidas y Activas
          National Association of Social Workers - California Chapter
          National Immigration Law Center
          Out4 Immigration
          PANGEA Legal Services
          Sacramento Areas Congregation Together
          San Diego LGBT Community Center
          Services, Immigrant Rights and Education Network
          Silicon Valley Community Foundation
          The Women's Foundation of California
          UAW Local 4123
          UAW Local 5810
          Unitarian Universalist Legislative Ministry Action Network
          Two private individuals









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           Opposition 
           
          California District Attorneys Association
          California State Sheriffs' Association
          Taxpayers for Improving Public Safety  


          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744