BILL ANALYSIS Ó AB 4 Page 1 ASSEMBLY THIRD READING AB 4 (Ammiano) As Introduced December 3, 2012 Majority vote PUBLIC SAFETY 5-2 ----------------------------------------------------------------- |Ayes:|Ammiano, Jones-Sawyer, | | | | |Mitchell, Quirk, Skinner | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Melendez, Waldron | | | | | | | | ----------------------------------------------------------------- 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 Section 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: AB 4 Page 2 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 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 Section 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 Section 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 AB 4 Page 3 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 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 AB 4 Page 4 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 : 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. 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. 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). 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. 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 AB 4 Page 5 any person within its jurisdiction the equal protection of the laws. EXISTING LAW : 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 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.) FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS : 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. "Due to these harmful effects of S-Comm, criticism of this AB 4 Page 6 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." Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744 FN: 0000104