BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2792       Hearing Date:    June 28, 2016    
          
           ----------------------------------------------------------------- 
          |Author:    |Bonta                                                |
          |-----------+-----------------------------------------------------|
          |Version:   |June 22, 2016                                        |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|MK                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


           Subject:  Local Law Enforcement Agencies:  Federal Immigration  
 
                                 Policy Enforcement



          HISTORY
          
          Source:   ACLU of California
                    Asian Americans Advancing Justice
                    California Immigrant Policy Center 
                    Immigrant Legal Resource Center
                    MALDEF
                    National Day Laborer Organizing Network


          Prior Legislation:                           AB 4 (Ammiano) -  
          Chapter 570, Stats. 2013
                         AB 524 (Mullin) - Chapter 572, Stats. 2013

          Support:  African Advocacy Network; Alliance San Diego; American  
                    Friends Service Committee; Asian Pacific Islander  
                    Legal Outreach; Asian Students Promoting Immigrant  
                    Rights through Education;  California Attorneys for  
                    Criminal Justice; California Immigrant Youth Justice  
                    Alliance; California Partnership to End Domestic  
                    Violence; California Public Defenders Association;  
                    CARECEN-LA; Centro Legal de la Raza; Community Health  
                    for Asian Americans; Community Initiatives for  







          AB 2792  (Bonta )                                          Page  
          2 of ?
          
          
                    Visiting Immigrants in Confinement; Community United  
                    Against Violence; Congregations Building Community;  
                    Courage Campaign; Dolores Street Community Services;  
                    Dream Team Los Angeles; East Bay Immigrant Youth  
                    Coalition; East Bay Organizing Committee; Ella Baker  
                    Center; Filipino Advocates for Justice; Immigrant  
                    Youth Coalition; Immigration Action Group; Inland  
                    Coalition for Immigrant Justice; Inland Empire  
                    Immigrant Youth Coalition; Inland Empire Rapid  
                    Response Network; Institute of Popular Education of  
                    Southern California; Interfaith Coalition for  
                    Immigrant Rights; Lawyers Committee for Civil Rights;  
                    Legal Services for Prisoners with Children; Los  
                    Angeles County Supervisor, District 3, Sheila Kuehl;  
                    Los Angeles Immigrant Youth Coalition;  
                    Mixteco/Indigena Community Organizing Project; Mujeres  
                    Unidas y Activas; National Immigration Law Center;  
                    National Lawyers Guild Los Angeles Chapter; North Bay  
                    Immigrant Youth Union; Orange County Immigrant Youth  
                    United; Pangea Legal Services; PICO California; Pomona  
                    Economic Opportunity Center; Prison Policy Initiative;  
                    RAIZ; Sacramento Immigration Alliance; San Diego  
                    Immigrant rights Consortium; San Fernando Dream Team;  
                    San Fernando Valley Immigrant Youth Coalition; San  
                    Joaquin Immigrant Youth Collective; SEIU; Street Level  
                    Health Project; Thai Community Development Center;  
                    Vital Immigrant Defense Advocacy and Services

          Opposition:California State Sheriffs' Association; California  
          Police Chiefs Association

          Assembly Floor Vote:                 44 - 29


          PURPOSE
          
          The purpose of this bill is to authorize a local law enforcement  
          agency to participate in a federal Immigration and Customers  
          Enforcement (ICE) immigration enforcement program only if it  
          enters into an MOU with the governing body or the governing body  
          adopts a policy.
          
          Existing federal law provides that any authorized immigration  
          officer may at any time issue Immigration Detainer-Notice of  








          AB 2792  (Bonta )                                          Page  
          3 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).) 

          Existing federal law 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).) 

          Existing federal law 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).)   

          Existing federal law 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. (U.S. Const. 14th Amend.) 

          Existing law 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." (Government Code, § 7282 (c).)

          Existing law 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  








          AB 2792  (Bonta )                                          Page  
          4 of ?
          
          
          local law, or any local policy, and only under the following  
          circumstances: 

             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. (Government Code, § 7282.5(a))

          Existing law 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. (Government Code, § 7282.5 (b).)

          This bill provides that a local law enforcement agency may  
          participate in an ICE immigration enforcement program only if  
          the law enforcement agency and the governing body of a 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 (Policy) in the case of a local law enforcement agency  
          headed by an employee of the political subdivision hired and  
          fired by the governing board that describes the terms and  
          conditions pursuant to which 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  








          AB 2792  (Bonta )                                          Page  
          5 of ?
          
          
          MOU or policy by vote of the governing body of the political  
          subdivision in which the law enforcement agency is located.

          This bill provides that the MOU or policy and any records  
          related to the development of the MOU including, but not limited  
          to, records communication with ICE, shall be public records for  
          the purposes of the California Public Records Act.

          This bill provides 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  
          and an evaluation.

          This bill provides that an MOU or policy may be renewed for a  
          period not exceeding three years.

          This bill provides that an MOU or policy may remain in effect  
          for a period not exceeding six months following the three year  
          period if the renewal process began at least three months before  
          the expiration of the initial three year period.

          This bill provides that before entering into an MOU or policy  
          the local governing body shall hold at least three community  
          forums that are open to the public and with at least 30 days  
          notice, except that the local governing body of a small city  
          shall be required to hold only one such forum.

          This bill provides that an MOU or policy enacted under this  
          chapter shall 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.

          This bill provides that a MOU or policy entered into under this  
          bill shall include all of the following:
                 A provision requiring compliance with the TRUST Act.
                 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 the TRUST Act.
                 A provision requiring compliance with any local  
               ordinance or policy that limits law enforcement responses  








          AB 2792  (Bonta )                                          Page  
          6 of ?
          
          
               to ICE notifications, or detainer or transfer requests.
                 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 in  
               advance of the public that the individual is being or will  
               be released on a certain date and time through data sharing  
               or otherwise, the ability to interview the individual, and  
               access nonpublicly available personal identifying  
               information, including work or home addresses of the  
               individual.
                 A plan to ensure that any individual not protected from  
               continued detention under the TRUST Act 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.

          This bill provides that unless otherwise prohibited by a local  
          ordinance, law enforcement policy or an MOU or policy, nothing  
          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 under the TRUST Act.

          This bill defines specified terms for the purpose of this bill.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  








          AB 2792  (Bonta )                                          Page  
          7 of ?
          
          
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and








          AB 2792  (Bonta )                                          Page  
          8 of ?
          
          
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for This Bill
          
          According to the author:

               California's TRUST Act- AB 4 (Ammiano) of 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. The 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 Obama administration  
               acknowledged the failure of S-Comm and announced a  
               reboot of the program. However, ICE's reboot - named  
               the Priority Enforcement Program or PEP - contains the  
               same fundamental flaws. In fact, identical to S-Comm,  
               PEP continues to check the immigration status of all  
               individuals by reviewing fingerprints obtained by local  
               police at the point of booking, without any due process  
               whatsoever.

               While PEP relies more on requests to local law  
               enforcement to notify ICE when an individual is  
               released,  the end result is the same.  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. PEP, just like its  
               predecessor, is overburdening local law enforcement's  
               resources and further undercutting the confidence that  
               the TRUST Act had started to build between the  
               community and law enforcement. 

               Aside from ICE notification requests, since passage of  








          AB 2792  (Bonta )                                          Page  
          9 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 home  
               raids or courthouse raids, traumatizing family members  
               and invoking fear in immigrant communities
                
                The recent case of a San Francisco father who sought  
               police's help in locating his stolen car, only to end  
               up detained by ICE for more than 50 days, illustrates  
               how ICE's new tactics hurt families and further damage  
               confidence in law enforcement.

          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 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/2 








          AB 2792  (Bonta )                                          Page  
          10 of ?
          
          
          015/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.  MOU or Policy Required

          In order to participate in an ICE immigration enforcement  
          action, this bill would require a law enforcement agency to  
          either to have an MOU or a policy adopted by the local governing  
          body that describes the terms and conditions to which the local  
          agency will participate in the ICE program.  This bill also  
          prescribes some of the things that must be included in the MOU  
          or policy.  The MOU or policy will need to be renewed every  
          three years.

          4.  Support
          
          MALDEF one of the sponsors of this bill states in support:
                                                
               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. 









          AB 2792  (Bonta )                                          Page  
          11 of ?
          
          
               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 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  








          AB 2792  (Bonta )                                          Page  
          12 of ?
          
          
               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, 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.  Opposition
          
          The California Sate Sheriffs' Association opposes this bill  
          stating:

               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  
               unwieldly 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  
               request for information from the federal government  
               unless the local entity has the authority itself to  
               detain the individual.









          AB 2792  (Bonta )                                          Page  
          13 of ?
          
          

                                      -- END -