Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2792

Introduced by Assembly Member Bonta

February 19, 2016

An act to begin delete amend Section 7282 of end delete begin insert add Chapter 17.2 (commencing with Section 7283) to Division 7 of Title 1 of end insert the Government Code, relating to begin delete state end delete begin insert local end insert government.

LEGISLATIVE COUNSEL’S DIGEST

AB 2792, as amended, Bonta. begin delete Federal end delete begin insert Local law enforcement agencies: federal end insert immigration policy enforcement.

Existing federal law authorizes issuance of an immigration detainer that serves to advise another law enforcement agency that the federal department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. Existing federal law provides that the detainer is a request that the agency advise the department, prior to release of the alien, in order for the department to arrange to assume custody in situations when gaining immediate physical custody is either impracticable or impossible.

Existing begin delete law end delete begin insert law, commonly know as the TRUST Act, end insert prohibits a law enforcement official, as defined, from detaining an individual on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from custody, unless, at the time that the individual becomes eligible for release from custody, certain conditions are met, including, among other things, that the individual has been convicted of specified crimes. Existing law defines specified terms for purposes of these provisions.

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This bill would authorize a local law enforcement agency to participate in a federal Immigration and Customs Enforcement (ICE) immigration enforcement program only if it enters into a memorandum of understanding (MOU) with the governing body of the political subdivision in which the law enforcement agency is located that describes the terms and conditions pursuant to which the agency will participate in the immigration enforcement program. The bill would authorize the MOU to take effect 30 days after ratification by the governing body, and would authorize the MOU to be valid for a period not exceeding 2 years. The bill would require the MOU and any records related to its development be public records for purposes of the California Public Records Act. The bill would require the local governing body to hold at least 3 community forums to provide information to the public about the policy under consideration, and to receive and consider public comment before entering into the MOU. The bill would require the MOU to require compliance with the TRUST Act, prohibit law enforcement responses to ICE notification or transfer requests except in those situations in which a law enforcement official would have discretion to detain an individual, requiring compliance with local ordinances or policies that limits law enforcement responses to ICE notifications, or detainer or transfer requests, prohibit execution of an ICE detainer or transfer request and a plan to ensure that ICE does not have access to individuals protected from continued detention on the basis of an immigration hold. By requiring these local agencies to comply with these requirements this bill would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

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This bill would make legislative findings to that effect.

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This bill would make nonsubstantive changes to those provisions.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert (a) end insert begin insert   end insert begin insert Transparency and accountability are essential
minimum requirements for any collaboration between state and
federal agencies. end insert

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(b) Recent immigration enforcement programs sponsored by
the federal Immigration and Customs Enforcement agency (ICE)
have suffered from a lack of transparency and accountability.

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(c) For example, a federal judge found that ICE “went out of
[its] way to mislead the public about Secure Communities,” a
deportation program in which ICE collaborated with local law
enforcement agencies to identify people for deportation.

end insert begin insert

(d) The Legislature further found that Secure Communities
harmed community policing and shifted the burden of federal
immigration enforcement onto local law enforcement agencies.

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(e) Although ICE has terminated the Secure Communities
program, it continues to promote a number of similar programs,
including the Priority Enforcement Program, the 287(g) Program,
and the Criminal Alien Program.

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(f) The Priority Enforcement Program has many similarities to
Secure Communities, including the checking of fingerprints for
immigration purposes at the point of arrest; the continued use of
immigration detainers, which have been found by the courts to
pose constitutional concerns; and the reliance on local law
enforcement to assist in immigration enforcement.

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(g) Just as with Secure Communities, numerous questions have
been raised about whether ICE has been transparent and
accountable with respect to its current deportation programs.

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(h) This bill seeks to address the lack of transparency and
accountability by ensuring that all ICE deportation programs that
depend on entanglement with local law enforcement agencies in
California are subject to meaningful public oversight and meet
certain minimum standards.

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begin insert SEC. 2. end insert   

end insert

begin insert Chapter 17.2 (commencing with Section 7283) is added
to Division 7 of Title 1 of the end insert begin insert Government Code end insert begin insert , to read: end insert

begin insert

 

Chapter   begin insert 17.2. end insert Standards for Participation in United
States Immigration and Customs Enforcement Programs

 

begin insert 7283. end insert   

For purposes of this chapter, the following terms have
the following meanings:

(a) “Detainer request” means a federal Immigration and
Customs Enforcement (ICE) request that a local law enforcement
agency maintain custody of an individual currently in its custody
beyond the time he or she would otherwise be eligible for release
in order to facilitate transfer to ICE and includes, but is not limited
to, Department of Homeland Security (DHS) Form I-247D.

(b) “ICE immigration enforcement program” means any
program through which the federal Immigration and Customs
Enforcement (ICE) agency works with local law enforcement
agencies to detect, detain, transfer, or share information about
individuals who allegedly are noncitizens or who have committed
civil immigration violations, or to station ICE agents in local jails,
and includes, but is not limited to, the Priority Enforcement
Program, the 287(g) Program, and the Criminal Alien Program.

(c) “Local law enforcement agency” means any agency of a
city, county, city and county, special district, or other political
subdivision of the state that is authorized to enforce criminal
statutes, regulations, or local ordinances; or to operate jails or
to maintain custody of individuals in jails; or to operate juvenile
detention facilities or to maintain custody of individuals in juvenile
detention facilities.

(d) “Notification request” means an Immigration and Customs
Enforcement request that a local law enforcement agency inform
ICE of the release date and time of an individual in its custody
and includes, but is not limited to, DHS Form I-247N.

(e) “Transfer request” means an Immigration and Customs
Enforcement request that a local law enforcement agency facilitate
the transfer of an individual in its custody to ICE, and includes,
but is not limited to, DHS Form I-247X.

begin insert 7293.1. end insert   

(a) A local law enforcement agency may participate
in a federal Immigration and Customs Enforcement (ICE)
immigration enforcement program only if the law enforcement
agency and the governing body of the political subdivision in which
the law enforcement agency is located enter into a memorandum
of understanding (MOU) that describes the terms and conditions
pursuant to which the local law enforcement agency will
participate in the immigration enforcement program. The MOU
shall only take effect 30 days after ratification of the MOU by vote
of the governing body of the political subdivision in which the law
enforcement agency is located.

(b) The MOU and any records related to the development of
the MOU, including, but not limited to, records of communication
with ICE, shall be public records for purposes of the California
Public Records Act (Chapter 3.5 (commencing with Section 6250)
of Division 7 of Title 1).

(c) An MOU enacted under this chapter shall be valid for a
period not exceeding two years. Renewal of an MOU requires
compliance with all of the provision of this chapter, including the
public input process described in subdivision (d) and an evaluation
of whether the conditions described in subdivision (e) have been
fully implemented. An MOU may be renewed for a period not
exceeding two years. An MOU may remain in effect for a period
of not exceeding six months following the two-year period if the
renewal process began at least three months before expiration of
the initial two-year period.

(d) Before entering into an MOU, the local governing body
shall hold at least three community forums that are open to the
public on different days, in accessible locations, and with at least
30 days notice to the public to provide information to the public
about the policy under consideration and to receive and consider
public comment. The community forums shall be held pursuant to
the Ralph M. Brown Act (Chapter 9 (commencing with Section
54950) of Part 1 of Division 2 of Title 5.

begin insert 7293.2. end insert   

(a) An MOU entered into pursuant to this chapter
shall include all of the following:

(1) A provision requiring compliance with Sections 7282 and
7282.5, commonly known as the TRUST Act.

(2) A prohibition on law enforcement responses to ICE
notification or transfer requests except in those situations in which
a law enforcement official would have discretion to detain an
individual on the basis of an immigration hold pursuant to Section
7282.5.

(3) A provision requiring compliance with any local ordinance
or policy that limits law enforcement responses to ICE
notifications, or detainer or transfer requests.

(4) A prohibition on executing an ICE detainer or transfer
request that does not indicate, in writing, whether the request is
supported by a judicial warrant.

(5) A plan to ensure that ICE does not have access to an
individual protected from continued detention under Section
7282.5, including, but not limited to, notification of the presence
of the individual in the custody of local law enforcement through
data sharing or otherwise, the ability to interview the individual,
and access to the personal identifying information, including work
or home addresses, of the individual.

(b) Unless otherwise prohibited by a local ordinance, law
enforcement policy, or an MOU entered into pursuant to this
chapter, nothing in this chapter shall prohibit a local law
enforcement agency from responding to an ICE notification or
transfer request if a law enforcement official would have discretion
to detain an individual on the basis of an immigration hold
pursuant to Section 7282.5.

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begin insert SEC. 3. end insert   

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The Legislature finds and declares that Section 2 of
this act, which adds Chapter 17.2 (commencing with Section 7283)
to Division 7 of Title 1 of the Government Code, furthers, within
the meaning of paragraph (7) of subdivision (b) of Section 3 of
Article I of the California Constitution, the purposes of that
constitutional section as it relates to the right of public access to
the meetings of local public bodies or the writings of local public
officials and local agencies. Pursuant to paragraph (7) of
subdivision (b) of Section 3 of Article I of the California
Constitution, the Legislature makes the following findings:

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By requiring public meetings relating to the manner in which
local law enforcement entities cooperate with federal authorities
in enforcing federal immigration laws and making related
documents open to public inspection this act furthers the purposes
of paragraph (7) of subdivision (b) of Section 3 of Article I of the
California Constitution.

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begin insert SEC. 4. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district under this act would result from a legislative mandate that
is within the scope of paragraph (7) of subdivision (b) of Section
3 of Article I of the California Constitution.

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SECTION 1.  

Section 7282 of the Government Code is amended
to read:

7282.  

For purposes of this chapter, the following terms have
the following meanings:

(a) “Conviction” shall have the same meaning as subdivision
(d) of Section 667 of the Penal Code.

(b) “Eligible for release from custody” means that the individual
may be released from custody because one of the following
conditions has occurred:

(1) All criminal charges against the individual have been
dropped or dismissed.

(2) The individual has been acquitted of all criminal charges
filed against him or her.

(3) The individual has served all the time required for his or her
sentence.

(4) The individual has posted a bond.

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

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

(d) “Law enforcement official” means 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.

(e) “Local agency” means any city, county, city and county,
special district, or other political subdivision of the state.

(f) “Serious felony” means any offense listed in subdivision (c)
of Section 1192.7 of the Penal Code and any offense committed
in another state that, if committed in California, would be
punishable as a serious felony as defined by subdivision (c) of
Section 1192.7 of the Penal Code.

(g) “Violent felony” means any offense listed in subdivision (c)
of Section 667.5 of the Penal Code and any offense committed in
another state that, if committed in California, would be punishable
as a violent felony as defined by subdivision (c) of Section 667.5
of the Penal Code.

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