Amended in Senate June 22, 2016

Amended in Assembly April 7, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2792

Introduced by Assembly Member Bonta

(Principal coauthor: Assembly Member Alejo)

February 19, 2016

An act to add Chapter 17.2 (commencing with Section 7283) to Division 7 of Title 1 of the Government Code, relating to local government.

LEGISLATIVE COUNSEL’S DIGEST

AB 2792, as amended, Bonta. Local law enforcement agencies: federal 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 law, commonly known as the TRUST Act, 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.

This bill, the Transparent Review of Unjust Transfers and Holds (TRUTH) Act, would authorize a local law enforcement agency to participate in a United States 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 begin delete located end delete begin insert located, or the governing body adopts a binding policy directive, as specified, end insert that describes the terms and conditions pursuant to which the agency will participate in the immigration enforcement program. The bill would authorize the MOU begin insert or policy end insert to take effect 30 days after ratification by the governing body, and would authorize the MOU begin insert or policy end insert to be valid for a period not exceeding begin delete 2 end delete begin insert 3 end insert years. The bill would require the MOU begin insert or policy end insert 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 begin delete at least 3 community forums end delete begin insert a community forum or forums, as specified, end insert to provide information to the public about the policy under consideration, and to receive and consider public comment before entering into the begin delete MOU. end delete begin insert MOU or policy. end insert The bill would require the MOU begin insert or policy end insert 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 begin delete request and end delete begin insert request, end insert a plan to ensure that ICE does not have access to individuals protected from continued detention on the basis of an immigration begin delete hold. end delete begin insert hold, and a plan to ensure that any individual who is not protected from continued detention is served a copy of any ICE detainer, transfer, or notification request issued for him or her, as specified. end insert By requiring these local agencies to comply with these requirements, this bill would impose a state-mandated local program. begin insert The bill would also prohibit police and security departments of the end insert begin insert California State University, community colleges, schools, and school districts from participating in any ICE immigration enforcement program. end insert

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.

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

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.

This bill would make legislative findings to that effect.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

SECTION 1.  

This act shall be known, and may be cited, as the
Transparent Review of Unjust Transfers and Holds (TRUTH) Act.

SEC. 2.  

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

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

(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.

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

(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.

(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.

(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.

(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.

SEC. 3.  

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

 

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

 

7283.  

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

begin insert

(a) “Community forum” includes, but is not limited to, any
regular meeting of the local governing body that is open to the
public, where the public may provide comment, is in an accessible
location, and is noticed at least 30 days in advance.

end insert begin delete

(a)

end delete

begin insert (b) end insert  “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.

begin insert

(c) “Governing body” with respect to a county, means the
county board of supervisors.

end insert begin delete

(b)

end delete

begin insert (d) end insert  “ICE immigration enforcement program” means any program
begin delete through end delete begin insert or practice by end insert which the begin delete federal end delete begin insert United States end insert Immigration
and Customs Enforcement (ICE) agency works with local law
enforcement begin delete agencies end delete begin insert agencies, or police and security departments
of the University of California, California State University,
community colleges, schools, and school districts end insert 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, begin insert or to interview individuals
in local jails about alleged civil immigration violations, or to issue
or respond to detainer, notification, or transfer requests, end insert and
includes, but is not limited to, the Priority Enforcement Program,
the 287(g) Program, and the Criminal Alien Program.

begin delete

(c)

end delete

begin insert (e) end insert  “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.

begin delete

(d)

end delete

begin insert (f) end insert  “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.

begin insert

(g) “Small city” means a city with a population of 100,000 or
less, as determined by the annual city total population rankings
by the Demographic Research Unit of the Department of Finance.

end insert begin delete

(e)

end delete

begin insert (h) end insert  “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.

7293.1.  

(a) A local law enforcement agency may participate
in begin delete a federal Immigration and Customs Enforcement (ICE) end delete begin insert an ICE end insert
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) begin insert in the case of a local law enforcement
agency headed by an elected official, or the governing body adopts
a binding policy directive, in the case of a local law enforcement
agency headed by an employee of the political subdivision hired
and fired by the governing body, end insert that describes the terms and
conditions pursuant to which the local law enforcement agency
will participate in the immigration enforcement program. The
MOU begin insert or policy end insert shall only take effect 30 days after ratification of
the MOU begin insert or policy end insert by vote of the governing body of the political
subdivision in which the law enforcement agency is located.

(b) The MOU begin insert or policy end insert and any records related to the
development of the begin delete MOU, end delete begin insert MOU or policy, end insert 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 begin insert or policy end insert enacted under this chapter shall be valid
for a period not exceeding begin delete two end delete begin insert three end insert years. Renewal of an MOU
begin insert or policy end insert 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 begin insert or policy end insert
may be renewed for a period not exceeding begin delete two end delete begin insert three end insert years. An
MOU begin insert or policy end insert may remain in effect for a period not exceeding
six months following the two-year period if the renewal process
began at least three months before expiration of the initial begin delete two-year end delete
begin insert three-year end insert period.

(d) Before entering into an begin delete MOU, end delete begin insert MOU or policy, end insert 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 begin delete comment. end delete begin insert comment, except that the local
governing body of a small city shall be required to hold only one
forum. end insert 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 begin delete 5.) end delete begin insert 5). end insert

begin insert

(e) An MOU or policy enacted under this chapter shall be
incorporated into any contract for the operation of a
government-owned detention facility entered into by a local law
enforcement agency or the governing body of the political
subdivision in which the law enforcement agency is located.

end insert

7293.2.  

(a) An MOU begin insert or policy end insert 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.

begin delete

(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.

end delete begin delete

(5)

end delete

begin insert (4) end insert  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 in advance of
the public begin delete regarding the release date and time of an individual in
the custody of local law enforcement end delete begin insert that the individual is being
or will be released at a certain date and time end insert through data sharing
or otherwise, the ability to interview the individual, and access to
nonpublicly available personal identifying information, including
work or home addresses, of the individual.

begin insert

(5) A plan to ensure that any individual not protected from
continued detention under Section 7282.5 is served with a copy of
any ICE detainer, transfer, or notification request issued for him
or her and is provided a written consent form in advance of any
interview with ICE that explains the purpose of the interview, that
the interview is voluntary, and that he or she may decline to be
interviewed or may choose to be interviewed only with his or her
attorney present.

end insert

(b) Unless otherwise prohibited by a local ordinance, law
enforcement policy, or an MOU begin insert or policy end insert 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.

begin insert

begin insert 7293.3. end insert   

(a) Notwithstanding any other provision of this
chapter, police and security departments of the California State
University, California Community Colleges, schools, and school
districts shall not participate in any ICE immigration enforcement
program.

(b) The University of California is requested to comply with
this section.

end insert

SEC. 4.  

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:

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.

SEC. 5.  

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.