BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 2792 (Bonta) - Local law enforcement agencies: federal immigration policy enforcement ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 3, 2016 |Policy Vote: PUB. S. 5 - 2 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 8, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 2792 would provide a local law enforcement agency with the discretion to provide "Immigration and Customs Enforcement (ICE) access," as defined, to an individual if specified conditions are met. This bill would prohibit the California State University, community colleges, schools, and school districts from providing ICE access to an individual, and would request the University of California to likewise comply with this prohibition. Fiscal Impact: Local law enforcement agencies : Potentially significant non-reimbursable local costs (Local Funds) to local law enforcement agencies for administrative and operational workload to adhere to the specified conditions in order to provide ICE access to individuals. New workload would include facilitating the public input process, compiling data reports, and responding to CPRA requests. First-year community forum : Potential state-reimbursable local AB 2792 (Bonta) Page 1 of ? agency costs (General Fund) to hold the first-year community forum based on activities provided during the past year to the extent a forum is required to be held in 2017. All subsequent community forums to be held based on discretionary actions prospectively are estimated to result in non-reimbursable local costs. Federal grant funding : Unknown impact on future federal Edward Byrne Justice Assistance Grant (JAG) Program and State Criminal Alien Assistance Program (SCAAP) grant awards. To the extent the prohibition from providing ICE with "non-publicly available information" includes information about an individual's immigration status could potentially result in non-compliance with 8 U.S.C. Section 1373, which prevents federal, state, and local government entities and officials from prohibiting or in any way restricting government entities from exchanging information concerning an individual's citizenship or immigration status with federal immigration officers. In FFY 2015, state and local agencies in California received $57 million in SCAAP funding, and the FFY 2016 state and local agency JAG allocations totaled $29.3 million. CSU/CCC/schools : Unknown future impact resulting from the blanket prohibition from providing "ICE access" to an individual, with no exceptions. Background: Under existing law, a law enforcement official has 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 any of the following circumstances: The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code. The individual has been convicted of a felony punishable by imprisonment in the state prison. The individual has been convicted within the past five years of a misdemeanor for a crime that is punishable as AB 2792 (Bonta) Page 2 of ? either a misdemeanor or a felony for, or has been convicted at any time of a felony for, any of specified offenses. The individual is a current registrant on the California Sex and Arson Registry. The individual is arrested and taken before a magistrate on a charge involving a serious or violent felony, as identified in subdivision (c) of Section 1192.7 or subdivision (c) of Section 667.5 of the Penal Code, a felony punishable by imprisonment in state prison, or any felony listed in paragraph (2) or (3) other than domestic violence, and the magistrate makes a finding of probable cause as to that charge pursuant to Section 872 of the Penal Code. The individual has been convicted of a federal crime that meets the definition of an aggravated felony as set forth in subparagraphs (A) to (P), inclusive, of paragraph (43) of subsection (a) of Section 101 of the federal Immigration and Nationality Act (8 U.S.C. Sec. 1101), or is identified by the United States Department of Homeland Security's ICE as the subject of an outstanding federal felony arrest warrant. If none of the conditions listed above is satisfied, an individual may not be detained on the basis of an immigration hold after the individual becomes eligible for release from custody. (Government Code § 7282.5.) This bill seeks to address transparency and accountability issues by ensuring that all ICE deportation programs that depend on interaction with local law enforcement agencies in California are subject to meaningful public oversight and specified minimum standards. Proposed Law: This bill would establish the Transparent Review of Unjust Transfers and Holds (TRUTH) Act. Specifically, this bill: AB 2792 (Bonta) Page 3 of ? Provides that a local law enforcement agency has the discretion to provide "ICE access" to an individual if all of the following conditions are met: o The agency would have discretion to detain the individual on the basis of an immigration hold request pursuant to Government Code § 7282.5. o The agency would not violate any local law or policy by providing access to the individual. o 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. Provides that 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. Provides that 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. Requires a local governing body of any county, city, or city and county in which a local law enforcement agency has AB 2792 (Bonta) Page 4 of ? provided ICE access to an individual during the last year to 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. For purposes of this chapter, the following terms have the following meanings: o "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. o "Hold request" means a federal 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. o "Governing body" with respect to a county, means the county board of supervisors. o "ICE access" means, for the purposes of civil immigration enforcement, including when an individual AB 2792 (Bonta) Page 5 of ? is stopped with or without their consent, arrested, detained, or otherwise under the control of the local law enforcement agency, all of the following: § Responding to an ICE hold, notification, or transfer request. § 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. § 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. § Allowing ICE to interview an individual. § Providing ICE information regarding dates and times of probation or parole check-ins. o "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 facilities; or to monitor compliance with probation or parole conditions. o "Notification request" means an Immigration and Customs Enforcement request that a local law enforcement agency inform ICE of the release date and AB 2792 (Bonta) Page 6 of ? time in advance of the public of an individual in its custody and includes, but is not limited to, DHS Form I-247N. o "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. Provides that 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. Notwithstanding any other provision of this chapter, prohibits police and security departments of the California State University, California Community Colleges, schools, and school districts from providing ICE access to any individual. Requests the University of California to comply with this section. Provides for uncodified legislative findings and declarations regarding the lack of transparency and accountability provided in recent federal immigration enforcement programs, as specified. Prior Legislation: AB 4 (Ammiano) Chapter 570/2013 prohibits a law enforcement official, as defined, from detaining an individual on the basis of a United States ICE hold after that individual becomes eligible for release from custody, unless, at the time AB 2792 (Bonta) Page 7 of ? 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. Staff Comments: This bill would authorize local law enforcement agencies to provide ICE access to an individual only if specified conditions are met, including that the agency would not violate any local law or policy by providing access to the individual. Under this bill, a local agency that has adopted a policy limiting the extent to which law enforcement and other government employees will assist the federal government on immigration matters (for example restricting assistance unless compelled by court order or state law) could prohibit a local law enforcement agency from providing "ICE access" to an individual, which would include "providing ICE non-publicly available information." To the extent non-publicly available information includes information regarding citizenship and immigration status of an individual, the impact on federal grant funding under the JAG and SCAAP could potentially be impacted. On July 7, 2016, the US DOJ issued a letter stating that the Office of Justice Programs determined that Section 1373 is an applicable federal law for the purposes of JAG and SCAAP funding, and included guidance for grantees with clear direction on the requirements of Section 1373: Title 8, USC, Section 1373 addresses the exchange of information regarding citizenship and immigration status among federal, state, and local government entities and officials. Subsection (a) prevents federal, state, and local government entities and officials from "prohibit[ing] or in any way restrict[ing]" government officials or entities from sending to, or receiving from, federal immigration officers information concerning an individual's citizenship or immigration status. Subsection (b) provides that no person or agency may "prohibit, or in any way restrict," a federal, state, or local government entity from (1) sending to, or requesting or receiving from, federal immigration officers information regarding an individual's immigration status, (2) maintaining such information, or (3) AB 2792 (Bonta) Page 8 of ? exchanging such information with any other federal, state, or local government entity. Recommended Amendments: To address the potential impact on federal grant funding, the author may wish to consider an amendment clarifying that "non-publicly available information" does not include information regarding citizenship and immigration status of an individual. To remove the potential state-reimbursable mandate imposed on local law enforcement agencies to hold a community forum in 2017 based on actions conducted prior to the bill's implementation, the author may wish to consider an amendment to delay the requirement to hold a forum until one year after the bill's implementation date. Staff also recommends a technical amendment in Section 4 of the bill to delete the reference on page 9, in line 30, to Section 2 and replace with a reference to Section 3. -- END --