BILL ANALYSIS Ó
AB 4
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CONCURRENCE IN SENATE AMENDMENTS
AB 4 (Ammiano)
As Amended September 4, 2013
Majority vote
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|ASSEMBLY: |44-22|(May 16, 2013) |SENATE: |25-11|(September 9, |
| | | | | |2013) |
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Original Committee Reference: PUB. S.
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, unless the individual has been convicted
of or charged with specified crimes.
The Senate amendments :
1)Make ineligible for release individuals convicted of the
following crimes:
a) A prior conviction of a serious or violent felony;
b) A prior conviction of a felony punishable by
imprisonment in state prison;
c) A prior misdemeanor conviction of a specified "wobbler"
offense within the past five years; or,
d) A prior conviction of other specified felonies.
2)Make ineligible for release individuals who are current
registrants on the California Sex and Arson Registry.
3)Make ineligible for release individuals charged with a serious
or violent felony, a felony punishable by imprisonment in
state prison, or any of the other listed felonies other than
domestic violence, and the magistrate makes a finding of
probable cause as to that charge.
4)Make ineligible for release an individual who has been
convicted of a federal crime that meets the definition of an
aggravated felony, as specified, or is identified by ICE as
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the subject of an outstanding federal felony arrest warrant.
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
any person within its jurisdiction the equal protection of the
laws.
EXISTING STATE 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
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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.)
AS PASSED BY THE ASSEMBLY , this bill:
1)Provided 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)Stated that "conviction" shall have the same meaning as Penal
Code Section 667(d).
3)Stated 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
or her sentence;
d) The individual has posted a bond; or,
e) The individual is otherwise eligible for release under
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state or local law, or local policy.
4)Defined "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)Defined "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)Defined "local agency" as any city, county, city and county,
special district, or other political subdivision of the state.
7)Stated 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)Stated 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)Stated 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.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : According to the author, "The controversial federal
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'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
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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