BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2792| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2792 Author: Bonta (D), et al. Amended: 8/15/16 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/28/16 AYES: Hancock, Glazer, Leno, Liu, Monning NOES: Anderson, Stone SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16 AYES: Lara, Beall, Hill, McGuire, Mendoza NOES: Bates, Nielsen ASSEMBLY FLOOR: 44-29, 5/23/16 - See last page for vote SUBJECT: Local law enforcement agencies: federal immigration policy enforcement: ICE access SOURCE: ACLU of California Asian Americans Advancing Justice California Immigrant Policy Center Immigrant Legal Resource Center MALDEF National Day Laborer Organizing Network DIGEST: This bill authorizes a local law enforcement agency to provide federal Immigration and Customs Enforcement (ICE) with access to an individual only if specified conditions are met. ANALYSIS: AB 2792 Page 2 Existing federal law: 1)Provides that any authorized immigration officer may at any time issue Immigration Detainer-Notice 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).) 2)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).) 3)Authorizes the Secretary of DHS 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).) 4)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 state law: AB 2792 Page 3 1)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).) 2)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 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 DHS's ICE as the subject of an outstanding federal felony arrest warrant. AB 2792 Page 4 (Government Code, § 7282.5(a)) 3)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: 1)Provides that a local law enforcement agency shall have the discretion to provide ICE access to an individual if the following conditions are met. a) The agency would have the discretion to detain the individual on the basis of an immigration hold. b) The agency would not violate any local law or policy by providing access to the individual. c) 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 be interviewed with his or her attorney present. 1)States that if the local law enforcement agency provides ICE with a 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. 2)Provides that all records relating to the ICE access provided by local law enforcement agencies, including all communications with ICE about that access shall be public reecords for the purpose of the California Public Records Act AB 2792 Page 5 (CPRA), except that where otherwise permitted under the CPRA personal identifying information may be redacted. 3)States that beginning January 1, 2018, the local governing body of a local governing body of a city, county or city and county in which a local law enforcement agency has provided ICE with access to an individual during the last year shall hold at least one community forum open to the public to provide information to the public about ICE's access to individuals and at the meeting report specified information to the public. 4)Defines specified terms for the purpose of this bill. Background 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. AB 2792 Page 6 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 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Senate Appropriations Committee: 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 AB 2792 Page 7 facilitating the public input process, compiling data reports, and responding to CPRA requests. 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. SUPPORT: (Verified8/11/16) ACLU of California (co-source) Asian Americans Advancing Justice (co-source) California Immigrant Policy Center (co-source) Immigrant Legal Resource Center (co-source) MALDEF (co-source) National Day Laborer Organizing Network (co-source) 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 AB 2792 Page 8 Centro Legal de la Raza Community Health for Asian Americans Community Initiatives for 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 Khmer Girls in Action 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 AB 2792 Page 9 OPPOSITION: (Verified8/11/16) California Police Chiefs Association California State Sheriffs' Association ASSEMBLY FLOOR: 44-29, 5/23/16 AYES: Alejo, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Dababneh, Daly, Dodd, Cristina Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Cooley, Dahle, Beth Gaines, Gallagher, Gatto, Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Steinorth, Wagner, Waldron, Wilk NO VOTE RECORDED: Arambula, Cooper, Eggman, Frazier, Gray, Irwin, Patterson Prepared by:Mary Kennedy / PUB. S. / 8/15/16 20:22:30 **** END ****