BILL ANALYSIS Ó
AB 2792
Page 1
Date of Hearing: April 12, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2792 (Bonta) - As Amended April 7, 2016
SUMMARY: Requires a memorandum of understanding (MOU), meeting
specific criteria, between the governing body of the appropriate
political subdivision and Immigration and Customs Enforcement
(ICE) in order for a local law enforcement agency to participate
in an immigration enforcement program. Specifically, this bill:
1)Authorizes 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.
2)States that the MOU must require compliance with the TRUST
Act.
3)States that the MOU must prohibit law enforcement responses to
ICE notification or transfer requests except in those
situations in which a law enforcement official would have
AB 2792
Page 2
discretion to detain an individual under the TRUST Act.
4)Specifies that the MOU must contain a provision requiring
compliance with any local ordinance or policy that limits law
enforcement responses to ICE notifications, or detainer or
transfer requests.
5)States that the MOU must have 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.
6)Requires the MOU to have a plan to ensure that ICE does not
have access to an individual protected from continued
detention under the TRUST Act, 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.
7)Specifies that unless otherwise prohibited by a local
ordinance, law enforcement policy, or an MOU entered into
pursuant to this chapter, nothing in this bill 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 as specified.
8)Specifies that the MOU must 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
AB 2792
Page 3
detention on the basis of an immigration hold.
9)Requires the MOU and any records related to its development be
a public record for purposes of the California Public Records
Act.
10)Requires the local governing body to hold at least three
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.
11)Authorizes the MOU to take effect 30 days after ratification
by the governing body.
12) Specifies that the MOU be valid for a period not exceeding
two years.
13)Defines "ICE immigration enforcement program" as "any program
through which ICE 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."
14)Defines "detainer request" as "an 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."
AB 2792
Page 4
15)Defines "notification request" as "an ICE request that a
local law enforcement agency inform ICE of the release date
and time of an individual in its custody."
16)Defines "transfer request" as "an ICE request that a local
law enforcement agency facilitate the transfer of an
individual in its custody to ICE."
EXISTING FEDERAL LAW:
1)Provides that any authorized immigration officer may at any
time issue 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. (8 CFR Section 287.7(a).)
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. (8 CFR Section 287.7(d).)
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). (8 U.S.C. Section 1357(g).)
4)Provides that no State shall make or enforce any law which
AB 2792
Page 5
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. (U.S. Const. 14th Amend.)
EXISTING LAW:
1)Defines "immigration hold" as "an immigration detainer issued
by an authorized immigration officer, pursuant to specified
regulations, 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." (Gov. Code, § 7282, subd. (c).)
2)States that a law enforcement official shall 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 the following
circumstances:
a) The individual has been convicted of a serious or
violent felony; (Gov. Code, § 7282.5, subd. (a), subd.
(1).)
b) The individual has been convicted of a felony punishable
by imprisonment in the state prison; (Gov. Code, § 7282.5,
subd. (a), subd. (2).)
c) The individual has been convicted within the past five
years of a misdemeanor for a crime that is punishable as
either a misdemeanor or a felony, or has been convicted at
any time of a specified felony; (Gov. Code, § 7282.5, subd.
(a), subd. (3).)
d) The individual is a current registrant on the California
Sex and Arson Registry; (Gov. Code, § 7282.5, subd. (a),
subd. (4).)
AB 2792
Page 6
e) The individual is arrested and taken before a magistrate
on a charge involving a serious or violent felony, a felony
punishable by imprisonment in state prison, or other
specified felonies, and the magistrate makes a finding of
probable cause as to that charge after a preliminary
hearing; and (Gov. Code, § 7282.5, subd. (a), subd. (5).)
f) The individual has been convicted of a federal crime
that meets the definition of an aggravated felony as
specified, or is identified by the United States Department
of Homeland Security's Immigration and Customs Enforcement
as the subject of an outstanding federal felony arrest
warrant. (Gov. Code, § 7282.5, subd. (a), subd. (6).)
3)States that if none of the conditions listed above is
satisfied, an individual shall not be detained on the basis of
an immigration hold after the individual becomes eligible for
release from custody. (Gov. Code, § 7282.5, subd. (b).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Immigrant
communities form an integral part of our state's social
fabric. When Immigration and Customs Enforcement (ICE) coerces
local law enforcement to carry out deportations, family
members are separated and community trust destroyed, and
undocumented witnesses and victims are afraid to step forward
or seek help.
"In 2013, Governor Brown signed AB 4, the TRUST Act, which
protected community members from being detained by local law
enforcement under immigration holds requested by ICE. Prior to
the TRUST Act, ICE requested local jails hold community
members until they could be picked up for deportation. From
tamale vendors to domestic violence survivors transferred to
ICE for deportation, the holds caused significant suffering
and further weakened community-police relations as ICE sought
to have local police officers and sheriff's deputies help it
AB 2792
Page 7
carry out mass deportation. After TRUST went into effect, a
federal court found all immigration holds unconstitutional,
but ICE has continued to circumvent the protections of TRUST
by requesting local law enforcement notify them of personal
information, such as release time and location.
"With AB 2792, the Transparent Review of Unjust Transfers and
Holds (TRUTH) Act, we close that loophole and build upon the
TRUST Act by. The TRUTH Act requires a transparent process,
including community engagement, prior to local law enforcement
participation in ICE deportation programs. Local law
enforcement must then reach an agreement with their city
council or county supervisors, dictating the terms and
conditions of any participation in such programs, including
compliance with the state's TRUST Act.
"The TRUTH Act requires critical transparency from ICE, ensures
local communities have a voice, and creates clear guidelines
to guard against future abuses."
2)Federal Immigration Programs: California's TRUST Act was
enacted in 2013. (AB 4 (Ammiano), Chapter 570, Statutes of
2013.) The TRUST Act limits immigration "hold" or detainer
requests, triggered by deportation programs like the program
formerly known as "Secure Communities" or S-Comm. The requests
caused immigrants to be detained for extra time for
deportation purposes.
On November 20, 2014, the Obama administration stopped S-Comm
and put in place a new program, the Priority Enforcement
Program (PEP). PEP is similar to S-Comm, in that it continues
to check the immigration status of all individuals by
reviewing fingerprints obtained by local police at the point
of booking. PEP begins at the state and local level when an
individual is arrested and booked by a law enforcement officer
for a criminal violation and his or her fingerprints are
submitted to the FBI for criminal history and warrant checks.
This same biometric data is also sent to U.S. Immigration and
Customs Enforcement (ICE) so that ICE can determine whether
the individual is a priority for removal, consistent with the
DHS enforcement priorities. Under PEP, ICE will seek the
transfer of a removable individual when that individual has
AB 2792
Page 8
been convicted of an offense listed under the DHS civil
immigration enforcement priorities, has intentionally
participated in an organized criminal gang to further the
illegal activity of the gang, or poses a danger to national
security.
( https://www.ice.gov/sites/default/files/documents/Fact%20sheet
/2015/pep_brochure.pdf )
Under PEP, ICE will only seek transfer of individuals in state
and local custody in specific, limited circumstances. ICE will
only issue a detainer where an individual fits within DHS's
narrower enforcement priorities and ICE has probable cause
that the individual is removable. In many cases, rather than
issue a detainer, ICE will instead request notification (at
least 48 hours, if possible) of when an individual is to be
released. ICE will use this time to determine whether there is
probable cause to conclude that the individual is removable.
(Id.)
Although PEP relies more on requests to local law enforcement to
notify ICE when an individual is released than hold requests,
concerns have been raised that the requests for notifications
of release have resulted in delays in release to allow ICE
time to detain the individual.
3)ICE Involvement Can Impede Cooperation Between Local Law
Enforcement and the Community: A study by the University of
Illinois - Chicago surveyed Latino immigrants in Cook
(Chicago), Harris (Houston), Los Angeles, and Maricopa
(Phoenix) counties on their perception of local law
enforcement when there's involvement in immigration
enforcement found the following:
a) 44 percent of Latinos surveyed reported they are less
likely to contact police officers if they have been the
victim of a crime because they fear that police officers
will use this interaction as an opportunity to inquire into
their immigration status or that of people they know;
b) 45 percent of Latinos stated that they are less likely
to voluntarily offer information about crimes, and 45
percent are less likely to report a crime because they are
AB 2792
Page 9
afraid the police will ask them or people they know about
their immigration status;
c) 70 percent of undocumented immigrants reported they are
less likely to contact law enforcement authorities if they
were victims of a crime;
d) Fear of police contact is not confined to immigrants.
For example, 28 percent of US-born Latinos said they are
less likely to contact police officers if they have been
the victim of a crime because they fear that police
officers will use this interaction as an opportunity to
inquire into their immigration status or that of people
they know; and
e) 38 percent of Latinos reported they feel like they are
under more suspicion now that local law enforcement
authorities have become involved in immigration
enforcement. This figure includes 26 percent of US-born
respondents, 40 percent of foreign-born respondents, and 58
percent of undocumented immigrant respondents. (Insecure
Communities: Latino Perceptions of Police Involvement in
Immigration Enforcement, University of Illinois at Chicago,
Nik, Theodore et al., (May 2013), available at
http://www.policylink.org/sites/default/files/INSECURE_COMMU
NITIES_REPORT_FINAL.PDF)
4)Argument in Support: According to The Mexican American Legal
Defense and Educational Fund, "Passage of California's TRUST
Act (AB 4 -Ammiano) in 2013 was instrumental in preventing the
separation of thousands of families. This law limits
immigration 'hold' or detainer requests, triggered by deeply
controversial deportation programs like the program formerly
known as 'Secure Communities' or S-Comm. These ICE hold
requests, found unconstitutional by a federal court in 2014,
caused immigrants to be detained for extra time, at local
expense, merely for deportation purposes.
"On November 20, 2014, the Department of Homeland Security
acknowledged the failure of the S-Comm Program and announced a
reboot of the program. However, ICE's reboot - named the
Priority Enforcement Program or PEP - contains the same
AB 2792
Page 10
fundamental flaws. Like S-Comm, PEP has been shrouded in
secrecy since its beginning with little information available
to the public about which jurisdictions it is active in and
how it is operating in these jurisdictions.
"Like its predecessor S-Comm, PEP continues to check the
immigration status of all individuals by reviewing
fingerprints taken by local police at the point of arrest,
prior to the individual receiving any due process. In addition
to continuing to rely on ICE hold requests, PEP also relies on
notification requests, which are requests to local law
enforcement to notify ICE when an individual is released. The
end result of responding to a notification request is the same
as with an ICE hold. ICE requests notification of release time
so that they can detain the person at the point of release,
leading to unconstitutional detentions at local jails and
separating Californian families.
"In addition to continuing to rely on ICE hold requests, PEP
also relies on notification requests, which are requests to
local law enforcement to notify ICE when an individual is
released. The end result of responding to a notification
request is the same as with an ICE hold. ICE requests
notification of release time so that they can detain the
person at the point of release, leading to unconstitutional
detentions at local jails and separating Californian families.
Aside from ICE notification requests, since passage of the
TRUST Act, ICE has utilized other troubling tactics to burden
local law enforcement with deportations. This includes
racially profiling individuals for interrogations in jail
about their immigration status, while denying them access to
counsel. ICE is also reviewing inmate logs and searching jail
computers to gather addresses and telephone numbers to conduct
raids, traumatizing family members and invoking fear in
immigrant communities.
"The TRUTH Act would bring transparency to participation in
federal immigration enforcement by requiring the local
government and local law enforcement agency to enter into a
Memorandum of Understanding before participating in ICE
programs. The bill requires public meetings vetting such an
agreement, as well as a public vote by the local government,
AB 2792
Page 11
allowing for the public's voice to be heard. The TRUTH Act
also prevents separation of immigrant families by requiring
local governments to abide by the protections of the TRUST Act
for ICE notification requests."
5)Argument in Opposition: According to The California State
Sheriffs' Association, "AB 2792 unduly burdens law enforcement
by requiring an agency to enter into a memorandum of
understanding (MOU) with its governing body if the law
enforcement agency intends to cooperate with federal
authorities on issues related to immigration, particularly
detention and notification. As long as law enforcement
actions comport with local, state, and federal law, agencies
should not be limited by this MOU process. Additionally, a
proposed MOU would be the subject of at least three different
public forums and the MOU would have to be renewed every two
years. We oppose this unwieldy process as it will impede law
enforcement's ability to keep our communities safe by
requiring agencies to negotiate unnecessary hurdles to simply
work with our federal partners.
"Additionally, this bill attempts to preclude law enforcement
from responding to federal requests for notification when a
jail houses someone who might be the subject of an immigration
hold. State law, the TRUST Act, already governs when and how
a local entity may detain a person subject to an immigration
hold. That said, we believe it is inappropriate for the state
to tell a local agency that it cannot respond to a reque3st
for information from the federal government unless the local
entity has the authority itself to detain the individual.
These are two entirely separate situations, yet AB 2792
inappropriately melds them."
6)Prior Legislation:
a) AB 4 (Ammiano), Chapter 570, Statutes of 2013, 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,
AB 2792
Page 12
that the individual has been convicted of specified crimes.
b) AB 524 (Mullin), Chapter 572, Statutes of 2013, provides
that a threat to report the immigration status or suspected
immigration status of an individual or the individual's
family may induce fear sufficient to constitute extortion.
REGISTERED SUPPORT / OPPOSITION:
Support
California Immigrant Policy Center (Co-sponsor)
Asian Americans Advancing Justice - Asian Law Caucus
(Co-sponsor)
National Day Laborer Organizing Network (Co-sponsor)
American Civil Liberties Union of California (Co-sponsor)
Immigrant Legal Resource Center (Co-sponsor)
Mexican American Legal Defense and Educational Fund (Co-sponsor)
National Day Laborer Organizing Network (Co-sponsor)
Alliance San Diego
American Friends Service Committee
Asian Pacific Islander Legal Outreach
ASPIRE
California Attorneys for Criminal Justice
California Immigrant Youth Justice Alliance
California Public Defenders Association
California Rural Legal Assistance Foundation
Central American Resource Center
Centro Legal de la Raza
Coalition for Humane Immigrant Rights of Los Angeles
Community Health for Asian Americans
Community Initiatives for Visiting Immigrants in Confinement
Community United Against Violence
Congregations Building Community
Dolores Street Community Services
Dream Team Los Angeles
East Bay Immigrant Youth Coalition
East Bay Organizing Committee
Filipino Advocates for Justice
Immigration Action Group
AB 2792
Page 13
Immigrant Youth Coalition
Inland Coalition for Immigrant Justice
Inland Empire Immigrant Youth Coalition
Inland Empire Rapid Response Network
Instituto de Educacion Popular del Sur de California
Interfaith Movement for Human Integrity
Lawyers Committee for Civil Rights of the San Francisco Bay
Area.
Legal Services for Prisoners with Children
Los Angeles Immigrant Youth Coalition
Mujeres Unidas y Activas
Mixteco/Indigena Community Organizing Project
National Immigration Law Center
North Bay Immigrant Youth Union
Orange County Immigrant Youth United
Pangea Legal Services
PICO California
Pomona Economic Opportunity Center (PEOC)
Prison Policy Initiative
RAIZ
Sacramento Immigration Alliance
San Diego Immigrant Rights Consortium
San Fernando Valley Dream Team
San Fernando Valley Immigrant Youth Coalition
San Joaquin Immigrant Youth Collective
Southeast Asia Resource Action Center
Street Level Health Project
Supervisor Sheila Kuehl, Board of Supervisors County of Los
Angeles
Thai Community Development Center
Vital Immigrant Defense Advocacy & Services, Inc.
Opposition
The California State Sheriffs' Association
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744
AB 2792
Page 14