BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 4
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          ASSEMBLY THIRD READING
          AB 4 (Ammiano)
          As Introduced  December 3, 2012
          Majority vote 

           PUBLIC SAFETY       5-2                                         
           
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          |Ayes:|Ammiano, Jones-Sawyer,    |     |                          |
          |     |Mitchell, Quirk, Skinner  |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Melendez, Waldron         |     |                          |
          |     |                          |     |                          |
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           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:








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             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  








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            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  








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            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  








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            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  








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          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 


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