BILL ANALYSIS Ó
AB 2792
Page 1
(Without Reference to File)
CONCURRENCE IN SENATE AMENDMENTS
AB
2792 (Bonta)
As Amended August 19, 2016
Majority vote
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|ASSEMBLY: |44-29 |(May 23, 2016) |SENATE: | | (August 25, |
| | | | |26-10 |2016) |
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Original Committee Reference: PUB. S.
SUMMARY: Requires local law enforcement agencies, prior to an
interview between the United States Immigration and Customs
Enforcement (ICE) and an individual in custody, to provide the
individual a written consent form, as specified, that would
include information describing the purpose of the interview,
that it is voluntary, and that the individual may decline to be
interviewed. Requires local law enforcement agencies to provide
copies of specified documentation received from ICE to the
individual and to notify the individual regarding the intent of
the agency to comply with ICE requests.
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The Senate amendments:
1)Delete the requirement for a memorandum of understanding
between local law enforcement agencies and ICE in order for
local law enforcement agencies to participate in ICE
enforcement programs.
2)Specify that in advance of any interview between ICE and an
individual in local law enforcement custody regarding civil
immigration violations, the local law enforcement entity shall
provide the individual with a written consent form 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.
3)Require the written consent form to be available in English,
Spanish, Chinese, Tagalog, Vietnamese, and Korean, and
additional languages as specified.
4)State that upon receiving any ICE hold, notification, or
transfer request, the local law enforcement agency shall
provide a copy of the request to the individual and inform him
or her whether the law enforcement agency intends to comply
with the request.
5)Specify 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.
6)State that all records relating to ICE access provided by
local law enforcement agencies, including all communication
with ICE, shall be public records for purposes of the
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California Public Records Act, as specified.
7)Records relating to ICE access include, but are not limited
to, data maintained by the local law enforcement agency
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.
8)Require after January 1, 2018, the local governing body of any
county, city, or city and county in which a local law
enforcement agency has provided ICE access to an individual
during the last year to hold at least one community forum the
following year that is open to the public 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.
9)Require as part of the report, the local law enforcement
agency may 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.
10)Specify that "ICE access" includes all of the following:
a) Responding to an ICE hold, notification, or transfer
request;
b) 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;
c) Providing ICE non-publicly available information
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regarding release dates, home addresses, or work addresses,
whether through computer databases, jail logs, or
otherwise.
d) Allowing ICE to interview an individual; and
e) Providing ICE information regarding dates and times of
probation or parole check-ins.
11)Define additional terms for purposes of this bill.
12)Make technical, non-substantive changes.
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.
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.
3)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
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agreements (MOAs).
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.
EXISTING LAW:
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."
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;
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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.
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.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)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.
2)First-year community forum: Potential state-reimbursable
local 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.
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All subsequent community forums to be held based on
discretionary actions prospectively are estimated to result in
non-reimbursable local costs.
3)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 United States Code (USC)
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
fiscal year (FY) 2015, state and local agencies in California
received $57 million in SCAAP funding, and the FY 2016 state
and local agency JAG allocations totaled $29.3 million.
4)CSU/CCC/schools: Unknown future impact resulting from the
blanket prohibition from providing "ICE access" to an
individual, with no exceptions.
AS PASSED BY THE ASSEMBLY, this bill:
1)Authorized a local law enforcement agency to participate in a
federal Immigration and Customs Enforcement (ICE) immigration
enforcement program only if it enters into a memorandum of
understanding (MOU) with the governing body of the political
subdivision in which the law enforcement agency is located
that describes the terms and conditions pursuant to which the
agency will participate in the immigration enforcement
program.
2)Stated that the MOU must require compliance with the
Transparency and Responsibility Using State Tools (TRUST) Act.
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3)Stated that the MOU must prohibit 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 under the TRUST Act.
4)Specified that the MOU must contain a provision requiring
compliance with any local ordinance or policy that limits law
enforcement responses to ICE notifications, or detainer or
transfer requests.
5)Stated that the MOU must have a prohibition on executing an
ICE detainer or transfer request that does not indicate, in
writing, whether the request is supported by a judicial
warrant.
6)Required the MOU to have 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 of the presence of the individual in the custody
of local law enforcement through data sharing or otherwise,
the ability to interview the individual, and access to the
personal identifying information, including work or home
addresses, of the individual.
7)Specified that unless otherwise prohibited by a local
ordinance, law enforcement policy, or an MOU entered into
pursuant to this chapter, nothing in this bill 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 as specified.
8)Specified that the MOU must prohibit execution of an ICE
detainer or transfer request and a plan to ensure that ICE
does not have access to individuals protected from continued
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detention on the basis of an immigration hold.
9)Required the MOU and any records related to its development be
a public record for purposes of the California Public Records
Act.
10)Required the local governing body to hold at least three
community forums to provide information to the public about
the policy under consideration, and to receive and consider
public comment before entering into the MOU.
11)Authorized the MOU to take effect 30 days after ratification
by the governing body.
12) Specified that the MOU be valid for a period not exceeding
two years.
13)Defined "ICE immigration enforcement program" as "any program
through which ICE works with local law enforcement agencies to
detect, detain, transfer, or share information about
individuals who allegedly are noncitizens or who have
committed civil immigration violations, or to station ICE
agents in local jails."
14)Defined "detainer request" as "an 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."
15)Defined "notification request" as "an ICE request that a
local law enforcement agency inform ICE of the release date
and time of an individual in its custody."
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16)Defined "transfer request" as "an ICE request that a local
law enforcement agency facilitate the transfer of an
individual in its custody to ICE."
COMMENTS: According to the author, "Immigrant communities form
an integral part of our state's social fabric. When Immigration
and Customs Enforcement (ICE) coerces local law enforcement to
carry out deportations, family members are separated and
community trust destroyed, and undocumented witnesses and
victims are afraid to step forward or seek help.
"In 2013, Governor Brown signed AB 4 [(Ammiano), Chapter 570],
the TRUST Act, which protected community members from being
detained by local law enforcement under immigration holds
requested by ICE. Prior to the TRUST Act, ICE requested local
jails hold community members until they could be picked up for
deportation. From tamale vendors to domestic violence survivors
transferred to ICE for deportation, the holds caused significant
suffering and further weakened community-police relations as ICE
sought to have local police officers and sheriff's deputies help
it carry out mass deportation. After TRUST went into effect, a
federal court found all immigration holds unconstitutional, but
ICE has continued to circumvent the protections of TRUST by
requesting local law enforcement notify them of personal
information, such as release time and location.
"With AB 2792, the Transparent Review of Unjust Transfers and
Holds (TRUTH) Act, we close that loophole and build upon the
TRUST Act by. The TRUTH Act requires a transparent process,
including community engagement, prior to local law enforcement
participation in ICE deportation programs. Local law
enforcement must then reach an agreement with their city council
or county supervisors, dictating the terms and conditions of any
participation in such programs, including compliance with the
state's TRUST Act.
"The TRUTH Act requires critical transparency from ICE, ensures
local communities have a voice, and creates clear guidelines to
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guard against future abuses."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744
FN: 0004809