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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