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
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|Version: August 3, 2016 |Policy Vote: PUB. S. 5 - 2 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 8, 2016 |Consultant: Jolie Onodera |
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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
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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
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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:
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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
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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
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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
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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
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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)
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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.
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