BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2792 Hearing Date: June 28, 2016
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|Author: |Bonta |
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|Version: |June 22, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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-- END -