BILL ANALYSIS Ó
AB 2792
Page 1
ASSEMBLY THIRD READING
AB
2792 (Bonta)
As Amended April 7, 2016
Majority vote
------------------------------------------------------------------
|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |5-2 |Jones-Sawyer, Lopez, |Melendez, Lackey |
| | |Low, Quirk, Santiago | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |13-5 |Gonzalez, Bloom, |Bigelow, Gallagher, |
| | |Bonilla, Bonta, |Jones, Obernolte, |
| | |Calderon, Daly, |Wagner |
| | |Eggman, Eduardo | |
| | |Garcia, Holden, | |
| | |Quirk, Santiago, | |
| | |Weber, Wood | |
| | | | |
| | | | |
------------------------------------------------------------------
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
AB 2792
Page 2
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
Transparency and Responsibility Using State Tools (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
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
AB 2792
Page 3
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
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
AB 2792
Page 4
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."
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.
2)States that upon a determination by the DHS to issue a
detainer for an alien not otherwise detained by a criminal
AB 2792
Page 5
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)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 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."
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:
AB 2792
Page 6
a) The individual has been convicted of a serious or
violent felony;
b) The individual has been convicted of a felony punishable
by imprisonment in the state prison;
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;
d) The individual is a current registrant on the California
Sex and Arson Registry;
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
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.
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.
FISCAL EFFECT: According to the Assembly Appropriations
AB 2792
Page 7
Committee, unknown nonreimbursable costs to local agencies to
comply with the public forum requirements and request for public
records if the local law enforcement agency opts to participate
in a federal ICE immigration enforcement program.
COMMENTS: 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 [(Ammiano), Chapter 570],
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 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
AB 2792
Page 8
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."
Analysis Prepared by:
David Billingsley/ PUB. S. / (916) 319-3744 FN:
0002809