BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

                                                                     4
                                                                      
                                                                      
          AB 4 (Ammiano)                                              
          As Amended June 24, 2013 
          Hearing date:  July 2, 2013
          Penal Code
          SM:mc

                                 IMMIGRATION DETAINERS  

                                       HISTORY

          Source:  American Civil Liberties Union; Asian Law Caucus;  
                   California Immigrant Policy Center; Mexican American  
                   Legal Defense and Education Fund; National Day Laborer  
                   Organizing Network 

          Prior Legislation: AB 1081 (Ammiano) - 2011-2012, vetoed

          Support: American Civil Liberties Union of Santa Cruz County;  
                   American Federation of State, County and Municipal  
                   Employees (AFSCME); American Friends Service  
                   Committee's US-Mexico Border Project; Asian Americans  
                   for Civil Rights & Equality; Asian Law Alliance; Bill  
                   of Rights Defense Committee; Black Alliance for Just  
                   Immigration; California Attorneys for Criminal Justice;  
                   California Catholic Conference, Inc.; California  
                   Communities United Institute; California Immigrant  
                   Policy Center; California Partnership to End Domestic  
                   Violence; 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; Centro Legal de la Raza; Chinese for  




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                   Affirmative Action; Coalition for Humane Immigrant  
                   Rights of Los Angeles; Council on American-Islamic  
                   Relations; Diocese of Orange; Dream Team Los Angeles;  
                   East Bay Interfaith Committee for Worker Justice; East  
                   Bay Sanctuary Covenant; Filipino Advocates for Justice;  
                   Fresno Immigrant Youth in Action; 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 of the United Methodist Church; Interfaith  
                   Coalition for Immigrant Rights; Jewish Community  
                   Relations Council of San Francisco; 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; People's Democratic  
                   Club of Santa Cruz County; PICO California; Reform, CA;  
                   San Francisco Immigrant Rights Commission; Santa Cruz  
                   County Board of Supervisors; Services, Immigrant Rights  
                   and Education Network; Silicon Valley Community  
                   Foundation; UAW Local 4123; UAW Local 5810; Unitarian  
                   Universalist Legislative Ministry Action Network;  
                   United Food and Commercial Workers Union, Local 5; The  
                   Women's  Foundation of California; Friends Committee on  
                   Legislation of California; Two private individuals  
                   (prior to June 24, 2013, amendments)

          Opposition:California District Attorneys Association; California  
                   State Sheriffs' Association; Taxpayers for Improving  
                   Public Safety; Los Angeles County District Attorney

          Assembly Floor Vote:  Ayes  44 - Noes  22


                                         KEY ISSUE
           




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          SHOULD LAW ENFORCEMENT OFFICIALS HAVE DISCRETION TO DETAIN AN  
          INDIVIDUAL ON THE BASIS OF AN IMMIGRATION HOLD AFTER THAT  
          INDIVIDUAL BECOMES ELIGIBLE FOR RELEASE FROM CUSTODY ONLY IF  
          THAT CONTINUED DETENTION WOULD NOT VIOLATE ANY FEDERAL, STATE,  
          OR LOCAL LAW, OR ANY LOCAL POLICY, AND ONLY IF THE PERSON HAS A  
          PRIOR CONVICTION FOR A SPECIFIED FELONY, A CONVICTION FOR A  
          SPECIFIED MISDEMEANOR WITHIN THE LAST FIVE YEARS, IS A CURRENT  
          REGISTRANT ON THE CALIFORNIA SEX AND ARSON REGISTRY, OR HAS A  
          PENDING FELONY CHARGE AND HAS BEEN HELD TO ANSWER ON THAT CHARGE  
          BY A MAGISTRATE?



                                       PURPOSE

          The purpose of this bill is to (1) make uncodified legislative  
          findings and declarations; and (2) provide that a law  
          enforcement official would have discretion to cooperate with  
          federal immigration officials by detaining an individual on the  
          basis of an immigration hold after that individual becomes  
          eligible for release from custody only if 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, and only if the person has a prior conviction for a  
          specified felony, a conviction for a specified misdemeanor  
          within the last five years, is a current registrant on the  
          California Sex and Arson Registry, or has a pending felony  
          charge and has been held to answer on that charge by a  
          magistrate.

           Existing federal law  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  




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          assume custody, in situations when gaining immediate physical  
          custody is either impracticable or impossible.  (8 Code of  
          Federal Regulations § 287.7(a).) 

           Existing federal law  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 Code of Federal Regulations §  
          287.7(d).)
           
          Existing federal law  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  
          MOAs.  (8 U.S.C. § 1357(g).)

           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 § 1171.5.)

           This bill  would provide that a law enforcement official would  
          have discretion to cooperate with federal immigration officials  
          by detaining an individual on the basis of an immigration hold  
          after that individual becomes eligible for release from custody  
          only if 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, and only under any of the  
          following circumstances:




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                 The individual has been convicted of a serious or  
               violent felony, as specified.
                 The individual has been convicted of any felony which is  
               punishable by imprisonment in state prison.
                 The individual has been convicted within the last five  
               years of a misdemeanor for a crime that is punishable as a  
               felony or misdemeanor.
                 The individual has been convicted at any time for any  
               one of a list of specified felonies.
                 The individual is a current registrant on the California  
               Sex and Arson Registry.
                 The individual has been arrested for any specified  
               felony, and a magistrate has made a finding that there is  
               probable cause to hold the person to answer for that  
               charge.

          If none of these conditions are satisfied, an individual may not  
          be detained on the basis of an immigration hold after that  
          person becomes eligible for release from custody.

           This bill  makes the following uncodified findings and  
          declarations:

                     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.
                     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.
                     Unlike criminal detainers, which are supported by a  
                 warrant and require probable cause, there is no  




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                 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.
                     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.
                     It is the intent of the Legislature 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.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  




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          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  




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          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.




                                      COMMENTS

          1.  Need for This Bill

           According to the author:

               While the U.S. Immigration and Customs Enforcement's  
               (ICE) stated mission for S-Comm is to target serious  
               offenses, the program casts far too wide a net.  ICE's  
               own data shows that in California about 7 out of 10 of  
               the over 93,500 Californians deported as of February  
               2013 under S-Comm had no convictions or only minor  
               offenses.  Unfortunately, this means immigrant  
               residents who are victims or witnesses to a crime now  
               fear cooperating with police since any contact with  
               law enforcement can result in separation from their  
               families and deportation.  Even U.S. citizens,  
               survivors of domestic violence, and immigrants  




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               arrested only for selling street food without a permit  
               have been unfairly detained for extra time at local  
               expense due to S-Comm.

          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)  
           (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  




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          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 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  




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          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.)





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          4.  Crime and Undocumented Immigrants  

          According to research, immigrants, including undocumented  
          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.  S-Comm's Potential Adverse Effects on Public Safety  
          
          One concern raised about the implementation of S-Comm is that  
          using local law enforcement agencies for immigration enforcement  
          may cause victims and witnesses to crime to be afraid to report  
          criminal activity for fear of themselves or a loved one being  




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          deported as a result.  (See, Immigration Initiative May Put  
          Domestic Violence Victims At Risk, (March 3, 2011), California  
          Watch,  
          http://californiawatch.org/dailyreport/immigration-initiative-may 
          -put-domestic-violence-victims-risk-8993.)  

          In 2011, former San Francisco Sheriff Hennessey wrote:

               The use of fingerprints to initiate immigration  
               scrutiny is of particular concern to victims of  
               domestic violence.  In a recent case in San Francisco,  
               a woman called 911 to report domestic violence, but  
               the police arrested both her and her partner.   
               Although no charges were ever filed against the woman,  
               she is now fighting deportation.  There should be no  
               penalty for a victim of a crime to call the police.   
               (Secure Communities Destroys Public Trust, Michael  
               Hennessey, San Francisco Chronicle, (May 1, 2011),  
               http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/0 
               5/01/INB81J8OCL.DTL#ixzz1OGDTs6gK)

          On November 2, 2010, the Sacramento Bee reported:


               Every day, 2-year-old Kimberly Vrabo peeks around her  
               apartment complex for her mom.  If she hears police  
               sirens, she runs inside.



               Kimberly's mother, Maria Magdalena Perez-Rivera, got  
               into a fight with her boyfriend, Vicente Tellez, on a  
               Saturday night.



               The next morning, Perez-Rivera's sister called Lodi  
               police.  Two days later, the undocumented couple were  
               deported to Mexico, leaving behind Kimberly and the  




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               couple's 3-month-old son Anthony Tellez. 



               Their swift removal has shattered the family.  And  
               Sacramento's Mexican Consul General Carlos González  
               Gutiérrez and UC Davis Law School Dean Kevin Johnson  
               question whether justice has truly been served.

                                    * * * * * * *


               Instead of giving them a chance to talk to a judge and  
               present their case for some type of legal relief to  
               resolve the issue, two days later the ICE van picks  
               them up and they are sent to Mexico," said González  
               Gutiérrez.  The tragedy is that there are two little  
               kids who remain with the grandmother.


                                    * * * * * * *


               This deportation scenario is all too common.  It  
               illustrates the potential pitfalls of local police  
               cooperating with immigration authorities," said  
               Johnson.  "Immigrant women in particular are going to  
               underreport domestic violence, and generally,  
               immigrant communities are going to be less likely to  
               cooperate with police for fear of being deported.   
               (Deported Mexicans Leave Two Small Kids in Lodi,  
               (November 2, 2010) Sacramento Bee,   
               http://www.sacbee.com/2010/11/02/3151148/deported-mexic 
               ans-leave-two-small.html#ixzz1OK7n0NA8.)

          

          6.  S-Comm Creates Potential for Pretextual Stops and Racial  
          Profiling  




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          Due to the fact that, under the S-Comm program, no criminal  
          conviction is required before the person's fingerprints are sent  
          to ICE, local law enforcement, another concern is that this may  
          encourage some officers to stop people who appear to be foreign  
          nationals without a legal basis for the stop, which poses Fourth  
          Amendment concerns.  An officer may not detain a motorist  
          without a showing of reasonable suspicion.  This objective  
          basis, or reasonable suspicion, must consist of specific,  
          articulable facts which, together with objective and rational  
          inferences, form the basis for suspecting that the particular  
          person detained is engaged in criminal activity.  (U.S. v.  
          Brignoni-Ponce, (1975) 422 U.S. 873, 884.)  Ethnic appearance is  
          not an appropriate factor in the reasonable suspicion analysis.   
          (U.S. v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122,  
          1132-1135.)

          To protect these Fourth Amendment guarantees, items or  
          statements obtained during an unlawful stop or seizure are  
          generally inadmissible as evidence in a criminal proceeding.   
          (See Mapp v. Ohio (1961) 367 U.S. 643, 657, Penal Code §  
          1538.5.)  For individuals arrested and detained under S-Comm,  
          even if the arrestee was unlawfully arrested or the charges are  
          later dropped, the arrestee will still likely be placed on an  
          ICE detainer for deportation proceedings because their  
          fingerprints are shared with ICE and the FBI upon arrest only,  
          not a conviction.  This removes the deterrent that is meant to  
          discourage any police officers who might be so inclined from  
          making unlawful stops based on racial profiling or perceived  
          immigration status because ICE will take them into custody once  
          the criminal case is concluded, even if all charges are dropped.  
           Data from ICE confirms that at least one jurisdiction which has  
          been criticized for racial profiling, Maricopa County, Arizona,  
          has an extraordinarily high rate of fingerprint submissions  
          under the S-Comm program: 821,175 submissions as of March 31,  
          2012, amounting to 79% of all submissions from the entire state  
          of Arizona.  (U.S. Immigration and Customs Enforcement, Secure  
          Communities IDENT/IAFIS Interoperability Monthly Statistics  
          October 27, 2008 through March 31, 2012.)




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          7.  AB 1081 Governor's Veto Message  

          Last year the Legislature approved AB 1081 (Ammiano), which also  
          addressed honoring ICE holds under S-Comm.  Governor Brown  
          vetoed AB 1081 stating:

               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 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.










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

          8.  What This Bill Would Do  

          This bill would provide that a law enforcement official would  
          have discretion to cooperate with federal immigration officials  
          by detaining an individual on the basis of an immigration hold  
          after that individual becomes eligible for release from custody  
          only if 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, and only under any of the  
          following circumstances:

                 the individual has been convicted of a serious or  
               violent felony, as specified;
                 the individual has been convicted of any felony which is  
               punishable by imprisonment in state prison;
                 the individual has been convicted within the last five  
               years of a misdemeanor for a crime that is punishable as a  
               felony or misdemeanor;
                 the individual has been convicted at any time for any  
               one of a list of specified felonies.
                 the individual is a current registrant on the California  
               Sex and Arson Registry; and
                 the individual has been arrested for any specified  
               felony, and a magistrate has made a finding that there is  
               probable cause to hold the person to answer for that  
               charge.

          If none of these conditions are satisfied, an individual may not  
          be detained on the basis of an immigration hold after that  
          person becomes eligible for release from custody.

          9.  Argument in Support  

          The California Partnership to End Domestic Violence states:





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               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 90,000 California  
               residents as of December 2012 - more than any other  
               state.  Contrary to this program's stated goal of  
               prioritizing serious felony offenses, the vast  
               majority of those deported, about 69%, 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 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 that they  
               could be detained for deportation by ICE.

               The TRUST Act [AB 4]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 cost 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 released.

               We believe California can do better.  Passage of this  
               bill would go in long way toward restoring trust  
               between local law enforcement and the diverse  
               immigrant communities we serve.











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          10.  Argument in Opposition  

          The California District Attorneys Association states:

               We are concerned that this bill could result in the  
               inappropriate and untimely release of potentially  
               dangerous offenders.  There are numerous crimes that  
               do not meet the statutory definition of serious felony  
               or violent felony that are nonetheless serious and/or  
               violent.  Additionally, this infirmity appears to be  
               the basis for Governor Brown's veto of last year's  
               A.B. 1081, a nearly identical bill, and it is unclear  
               what has changed in the meantime.

               Additionally, we fear this bill would frustrate local  
               cooperation with federal officials who maintain  
               exclusive province over the enforcement of immigration  
               law.  It appears that this bill would permit a local  
               policy to trump federal law, and it is not clear how  
               such a provision would pass constitutional muster.


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