Amended in Senate August 3, 2016

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)

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(Principal coauthor: Senator Leno)

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(Coauthor: Assembly Member Lopez)

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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 begin delete enforcement. end delete begin insert enforcement: ICE access. end insert

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 begin delete 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 located, or the governing body adopts a binding policy directive, as specified, that describes the terms and conditions pursuant to which the agency will participate in the immigration enforcement program. The bill would authorize the MOU or policy to take effect 30 days after ratification by the governing body, and would authorize the MOU or policy to be valid for a period not exceeding 3 years. end delete begin insert provide the United States Immigration and Customs Enforcement (ICE) with access to an individual if certain conditions are met, as provided. end insert The bill would require begin insert that end insert the begin delete MOU or policy and any end delete records related to begin delete its development end delete begin insert ICE access end insert be public records for purposes of the California Public Records Act. The bill would require the local governing body to hold a community forum or forums, as specified, to provide information to the public about the policy under consideration, and to receive and consider public comment before entering into the MOU or policy. The bill would require the MOU or begin delete policy 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, a plan to ensure that ICE does not have access to individuals protected from continued detention on the basis of an immigration 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 delete begin insert ICE access, which shall include a report by the local law enforcement agency about its policies and practices regarding ICE access to individuals. end insert By requiring these local agencies to comply with these requirements, this bill would impose a state-mandated local program. The bill would also prohibit police and security departments of the California State University, community colleges, schools, and school districts from begin delete participating in any ICE immigration enforcement program. end delete begin insert providing ICE access to any individual. 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:

(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.

(b)  begin delete “Detainer end delete begin insert “Hold end insert 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.

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

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

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(d) “ICE access” means, for the purposes of civil immigration
enforcement, including when an individual is stopped with or
without their consent, arrested, detained, or otherwise under the
control of the local law enforcement agency, all of the following:

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(1) Responding to an ICE hold, notification, or transfer request.

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(2) Providing notification to ICE in advance of the public that
an individual is being or will be released at a certain date and
time through data sharing or otherwise.

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(3) Providing ICE non-publicly available information or access
to non-publicly available computer databases and jail logs
containing release dates, home addresses, or work addresses.

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(4) Allowing ICE to interview an individual.

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(5) Providing ICE information regarding dates and times of
probation or parole check-ins.

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(e) “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 begin delete facilities. end delete begin insert facilities; or to monitor compliance with
probation or parole conditions. end insert

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

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(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 delete begin delete

(h)

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begin insert (g) 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.

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7293.1.  

(a) A local law enforcement agency may participate
in an 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) 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, that
describes the terms and conditions pursuant to which the local law
enforcement agency will participate in the immigration
enforcement program. The MOU or policy shall only take effect
30 days after ratification of the MOU or policy by vote of the
governing body of the political subdivision in which the law
enforcement agency is located.

(b) The MOU or policy and any records related to the
development of the MOU or policy, 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 or policy enacted under this chapter shall be valid
for a period not exceeding three years. Renewal of an MOU or
policy 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 or policy may be
renewed for a period not exceeding three years. An MOU or policy
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 three-year period.

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

(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.

7293.2.  

(a) An MOU or policy 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 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 that the individual is being or will be released at a certain
date and time 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.

(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.

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

7293.3.  

(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.

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begin insert 7283.1. end insert   

(a) A local law enforcement agency shall have the
discretion to provide ICE access to an individual if all of the
following conditions are met:

(1) The agency would have discretion to detain the individual
on the basis of an immigration hold request pursuant to Section
7282.5.

(2) The agency would not violate any local law or policy by
providing access to the individual.

(3) The individual has been served with a copy of any ICE hold,
transfer, or notification request issued for him or her and has been
provided with 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.

(b) If a local law enforcement agency provides ICE with
notification that an individual is being, or will be, released on a
certain date, the local law enforcement agency shall promptly
provide the same notification in writing to the individual and to
his or her attorney or to one additional person who the individual
shall be permitted to designate.

(c) All records relating to ICE access provided by local law
enforcement agencies, including all communication with ICE about
that access shall be public records for purposes of the California
Public Records Act, except that, where otherwise permitted under
the Public Records Act, personal identifying information may be
redacted prior to public disclosure.

(d) The local governing body of any county, city, or city and
county in which a local law enforcement agency has provided ICE
access to an individual during the last year shall hold at least one
community forum every year that is open to the public, in an
accessible location, and with at least 30 days’ notice to provide
information to the public about ICE’s access to individuals and
to receive and consider public comment. At the community forum,
the local law enforcement agency shall report to the local
governing body about its policies and practices regarding ICE
access to individuals and its compliance with this chapter. As part
of this report, the local law enforcement agency shall provide the
governing body with any and all data it maintains regarding the
number and demographic characteristics of individuals to whom
the agency has provided ICE access, the date ICE access was
provided, and whether the ICE access was provided through a
hold, transfer, or notification request or through other means.

end insert begin insert

begin insert 7283.2. end insert   

Nothing in this chapter shall be construed to provide,
expand, or ratify the legal authority of any state or local law
enforcement agency to detain an individual based upon an ICE
hold request.

end insert begin insert

begin insert 7283.3. 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 provide ICE access to any individual.

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

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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.