BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1289 (Lara)
          Version: April 11, 2016
          Hearing Date:  April 19, 2016
          Fiscal: Yes
          Urgency: No
          ME


                                        SUBJECT
                                           
                            Law enforcement:  immigration

                                      DESCRIPTION  

          This bill would prohibit local law enforcement agencies and  
          local governments from contracting with for-profit entities to  
          detain immigrants on behalf of federal immigration authorities.   
          This bill would require that immigrant detention facilities  
          adhere to national immigration standards for the detention of  
          immigrants.  This bill further would require that immigrants in  
          detention be provided other legal rights, as specified.  

          This bill would authorize a private right of action against  
          immigrant detention facilities and their agents for violations  
          of the national detention standards or violations of the other  
          rights created by this bill, and authorizes the Attorney  
          General, district attorneys, and city attorneys to bring suits  
          against detention facilities for violations of the national  
          detention standards or violations of other legal rights created  
          by this bill.  

                                      BACKGROUND  

          In California, and around the country, for-profit detention  
          facilities are increasingly relied upon to detain immigrants who  
          are oftentimes eligible for Asylum, Special Immigrant Juvenile  
          Status immigration relief, Victims of Crime Visas (U-Visas),  
          Victims of Human Trafficking Visas (T-Visas), or other forms of  
          immigration relief.  Additionally, a few local government and  
          local law enforcement entities choose to enter into agreements  
          with federal immigration authorities to detain immigrants in  
          their county or city jails on behalf of the federal immigration  
          authorities.  









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          For-profit detention facilities are accountable to their  
          shareholders and not the people of the State of California.   
          Oftentimes, immigrants in immigrant detention facilities are  
          escaping persecution in their countries of origin and in need of  
          special care due to their persecution or because they have  
          suffered arduous journeys as unaccompanied children.  Ensuring  
          that immigrants are provided with the services they need to heal  
          oftentimes is in contrast to corporate interests.  Because these  
          facilities are private, they routinely claim exemptions to the  
          California's Public Records Act and the federal Freedom of  
          Information Act.  Despite the lack of access to records through  
          these acts, there have been reports of inadequate medical care,  
          suicide attempts, sexual assault, and even deaths at for-profit  
          immigrant detention facilities.  Somewhat perversely, because  
          immigration detention is technically a civil form of  
          confinement, immigrants in immigrant detention facilities lack  
          many of the safeguards of the criminal justice system, including  
          access to counsel.  

          Local government and law enforcement entities that choose to  
          contract with immigration authorities to detain immigrants are  
          supposed to adhere to national immigration detention standards,  
          promulgated by Immigration Customs and Enforcement (ICE)  
          regardless of whether they detain the immigrants in their local  
          jails or contract their immigrant detention duties out to  
          private for-profit corporations.  But many detainees have  
          reported experiencing deplorable conditions at city and county  
          immigrant detention facilities in violation of the national  
          standards.  No meaningful enforcement mechanism currently exists  
          to hold immigration detention facilities accountable, whether  
          for-profit or run by local governmental agency, when they  
          violate immigrant detainee's rights.  Various reports indicate  
          that the rights of Lesbian, Gay, Bisexual, and Transgender  
          (LGBT) detained immigrants have been extensively violated at  
          both types of detention facilities.

          This bill would prohibit local law enforcement and local  
          governments from contracting with for-profit entities to detain  
          immigrants on behalf of federal immigration authorities and  
          would require that all immigrant detention facilities adhere to  
          national immigration standards for the detention of immigrants.   
          This bill would create legal rights for immigrants in detention,  
          including but not limited to, access to legal representatives,  
          access to translation or interpreters, medical care, freedom  









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          from harm or harassment, and privacy.  In order to ensure that  
          the national detention standards are complied with and that the  
          legal rights of the immigrant detainees are respected, this bill  
          includes an enforcement mechanism whereby abused immigrant  
          detainees can bring a civil action to stop the abuses and  
          recover damages resulting from the abuse.  Additionally, the  
          bill also authorizes the Attorney General, district attorneys,  
          and city attorneys to bring suits against detention facilities  
          for violations of the national detention standards and other  
          legal rights created by this bill.

                                CHANGES TO EXISTING LAW
           
           Existing international law  provides that everyone has the right  
          to seek and to enjoy in other countries asylum from persecution.  
           (UN General Assembly, Universal Declaration of Human Rights,  
          Dec. 10, 1948, 217A(III), Art. 14.)

           Existing federal law  , the Immigration and Naturalization Act,  
          protects all asylum seekers by prohibiting the federal  
          government from returning to their home countries people who  
          have fled persecution on account of race, religion, nationality,  
          political opinion, or membership in a particular social group.   
          (8 U.S.C. Sec. 1101(a)(42)(A).) 

           Existing federal law  provides that victims of certain crimes may  
          obtain immigration relief through a Victim of Crime Visa  
          (U-Visa) and victims of human trafficking may obtain immigration  
          relief through a Victim of Trafficking Visa (T-Visa).  (8 U.S.C.  
          Sec. 1101(a)(15)(U); 8 U.S.C. Sec. 1101(a)(15)(T).)

           Existing federal law  provides immigration relief that relies on  
          a State's interest in the welfare of children and provides for  
          Special Immigrant Juvenile Status where a state determines that  
          reunification with one or both of the immigrant's parents is not  
          viable due to abuse, neglect, abandonment, or similar basis  
          found under state law and that it would not be in the child's  
          best interest to return to their home country.  (8 U.S.C. Sec.  
          1101 (a)(27)(J).)

           Existing federal law  establishes that the care and custody of  
          unaccompanied minors is the responsibility of the Office of  
          Refugee Resettlement (ORR) in the Department of Health and Human  
          Services instead of the Department of Homeland Security (DHS).   









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          (Homeland Security Act of 2002; P.L. 107-296, Sec. 462)
            
           Existing case law  holds that immigrant detainees with mental  
          disabilities who are facing deportation and who are unable to  
          adequately represent themselves are entitled to qualified legal  
          representatives provided by the federal government for  
          representation during all phases of their immigration  
          proceedings, including appeals and custody hearings.   
          (Franco-Gonzalez v. Holder, CV 10-02211-DMG)

           This bill  would prohibit local governments or local law  
          enforcement from entering into or renewing a contract, or  
          modifying a contract to extend the length of the contract, with  
          a private corporation, contractor or vendor to detain immigrants  
          for profit, on behalf of the Department of Homeland Security,  
          Office of Refugee Resettlement, or the United States Marshals  
          Service. 

           This bill  would provide that when an immigrant detention  
          facility chooses to enter into a contract to detain immigrants  
          in civil immigration proceedings, it shall detain immigrants  
          only pursuant to a contract that requires the entity contracting  
          with DHS or other federal agency to adhere to the standards for  
          detaining those individuals described in the 2011 Operations  
          Manual Immigration and Customs Enforcement (ICE)  
          Performance-Based National Detention Standards as corrected and  
          clarified in February 2013 and ICE Directive 11065.1 (Review of  
          the Use of Segregation for ICE Detainees).  

           This bill  would make clear that an immigrant detention facility  
          can provide more rights than are required under the 2011  
          Operations Manual ICE Performance-Based National Detention  
          Standards as corrected and clarified in February 2013 or ICE  
          Directive 11065.1 (Review of the Use of Segregation for ICE  
          Detainees).  

           This bill  would prohibit immigrant detention facilities, their  
          agents, or those acting on their behalf from depriving immigrant  
          detainees with: (1) access to legal representatives; (2) access  
          to translation or interpreters; (3) medical care; (4) freedom  
          from harm or harassment; and (5) privacy.

           This bill  would prohibit an immigration detention facility,  
          agent or person acting on behalf of the facility, from depriving  









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          a detainee with access to medical care, including but not  
          limited to, HIV medication and transition-related health care,  
          and further prohibit the denial of medical care on the basis  
          that an immigrant is likely to be released or deported.

           This bill  would require immigrant detention facilities to do all  
          of the following when an immigrant detainee is transferred:  (1)  
          ensure that all medical records of the detainee are promptly  
          transferred to ICE at the time of transfer or promptly provided  
          to the facility to which the detainee is transferred; (2) ensure  
          that all detainees receive all medications needed while in  
          transit; (3) ensure that a detainee's treatment plan is received  
          by the medical personnel at the facility to which the detainee  
          is being transferred; and (4) ensure that there is no delay,  
          disruption, or denial of medical treatment, after or before  
          detainee transfer.

           This bill  would prohibit the involuntary placement of  
          immigration detainees in segregated housing because of the  
          detainee's actual or perceived gender, gender identity, gender  
          expression, or sexual orientation.

           This bill  would require immigrant detention facilities to have a  
          Legal Orientation Program, as specified, that includes an  
          orientation on immigration removal proceedings and forms of  
          relief, distribution of self-help materials, provision of  
          private and individual consultations with unrepresented  
          detainees to discuss their cases, and referrals to pro bono  
          legal services.

           This bill  would authorize the Attorney General, any district  
          attorney, or city attorney to bring a civil action for  
          injunctive and other appropriate equitable relief in the name of  
          the people of the State of California and seek a civil penalty  
          of $25,000, as specified, when an immigrant detention facility,  
          or its agent or person acting on its behalf deprives an  
          immigrant detainee of their rights created under this bill or  
          rights under the 2011 Operations Manual ICE Performance-Based  
          National Detention Standards as corrected and clarified in  
          February 2013, or ICE Directive 11065.1 (Review of the Use of  
          Segregation for ICE Detainees). 

           This bill  would authorize any individual who has been deprived  
          of his or her rights to bring a civil action for damages,  









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          including, but not limited to, damages under Section 52 of the  
          Civil Code, injunctive and other appropriate equitable relief,  
          when an immigrant detention facility, or its agent or person  
          acting on its behalf deprives an immigrant detainee of their  
          rights created under this bill or rights under the 2011  
          Operations Manual ICE Performance-Based National Detention  
          Standards as corrected and clarified in February 2013 or ICE  
          Directive 11065.1 (Review of the Use of Segregation for ICE  
          Detainees).
           This bill  would require that if a civil penalty is requested by  
          the Attorney General, a district attorney, or city attorney, the  
          civil penalty shall be assessed individually against each person  
          who is determined to have violated the legal rights of a  
          detained immigrant and awarded to each individual whose rights  
          are determined to be violated.

           This bill  would provide that the court may award the petitioner  
          or plaintiff reasonable attorney's fees and costs in addition to  
          any damages, injunction, or other equitable relief. 

           This bill  includes related legislative findings and  
          declarations.

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:

            In 2011 ICE developed the Operations Performance-Based  
            National Detention Standards, which lays out the basic  
            health and safety standards detainees should receive while  
            in detention.  However, these standards are not codified  
            and are unenforceable.  There have been widespread reports  
            of human right's abuses in detention facilities, including  
            physical and sexual abuse, poor access to healthcare,  
            little access to legal counsel, overuse of solitary  
            confinement, and even death.  LGBT detainees have reported  
            facing discrimination, harassment, and abuse due to their  
            sexual orientation.  In many of these instances, even the  
            Department of Homeland Security has found these deaths were  
            preventable.  Tragically, the incidents often go  
            unaddressed and victims have no recourse. 










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            Private, for-profit immigration detention facilities  
            present a host of problems.  The facilities are not subject  
            to the Freedom of Information Act and operate with little  
            to no oversight.  Many also operate under a perverse  
            incentive, where they are guaranteed a minimum number of  
            detainees in their facility at all times, ensuring their  
            profits.  For example in Adelanto Detention Facility in  
            Adelanto, California, ICE is guaranteed 975 detainees at  
            all times with a per diem rate of $111 per bed per day.   
            Perversely, if the number of beds increases over 975, the  
            per diem rate drops to $50 per day per bed.  The private  
            detention contracts are designed to incentivize filling the  
            most beds at all times, regardless of public safety or  
            their destructive effects on communities.  Indeed, private  
            companies make billions in profits every year from  
            incarcerating mothers, fathers, children, and others in our  
            broken immigration system.

          2.   California's recent history of empowering immigrants

           California is leading the nation in ensuring that immigrants are  
          treated with dignity and respect.  While Congress fails to pass  
          comprehensive immigration reform, California has exercised its  
          state power to protect immigrants who are caught in limbo due to  
          Washington's inaction.  Just last year, the legislature passed a  
          historic package of 10 bills to empower immigrants in  
          California-the "Immigrants Shape California" package.  All 10  
          bills were signed into law by Governor Jerry Brown, including:   
          AB 900 (Levine, Chapter 694, Statutes of 2015) to allow youth  
          aged 18-21 who have escaped violence and terror in Central  
          America to come under the protection of a guardianship that can  
          also help the youth obtain Special Immigrant Juvenile Status  
          immigration relief; SB 674 (De León, Chapter 721, Statutes of  
          2015) requiring law enforcement to complete certifications for a  
          victim of crime who was helpful to the criminal investigation so  
          that victims can apply for Victims of Crime immigration visas  
          (U-Visas); and AB 1343 (Thurmond, Chapter 705, Statutes of 2015)  
          requiring defense counsel in criminal proceedings to provide  
          accurate and affirmative advice and defense to immigrants to  
          avoid unintended immigration consequences, like detention,  
          deportation, and loss of citizenship eligibility. 

          The State of California also shows its support for immigrants by  
          funding legal services for unaccompanied minors and youth and  









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          legal services for immigrants to apply for naturalization,  
          U-Visas, Victims of Human Trafficking Visas (T-Visas), Deferred  
          Action for Parental Arrival (DAPA), Deferred Action for  
          Childhood Arrival (DACA), and other immigration remedies. 

          3.   Immigration detention is civil and immigrants are denied  
          appointed counsel

           Immigration detention is civil in nature and deportation unlike  
          in criminal proceedings is not punitive.  (Wong Wing v. United  
          States, (1896) 163 U.S. 228.)  Immigration and Customs  
          Enforcement (ICE) states that they detain people for no purpose  
          other than to secure their presence both for immigration  
          proceedings and their removal.  (U.S. Customs and Immigration  
          Service, Performance Based National Detention Standards (2011),  
          See  
          [as of April 9, 2016].)  "Unlike criminal incarceration,  
          immigration detention is not to be punitive?ICE is to confine  
          detainees for the administrative purpose of holding, processing,  
          and preparing them for removal." (United States Government  
          Accountability Office, "Immigration Detention" Additional  
          Actions Could Strengthen DHS Efforts to Address Sexual Abuse  
          (Nov. 2013), p.8, [as  
          of April 9, 2016].) 


          Immigrants in civil detention are not provided with the same  
          protections as individuals in the criminal justice system, such  
          as appointed legal counsel.  Even California immigrants with  
          mental disabilities were deprived of counsel until a federal  
          district judge in the Central District of California ordered  
          that detained immigrants with mental disabilities are entitled  
          to qualified legal representatives provided by the federal  
          government for representation during all phases of their  
          immigration proceedings, including appeals and custody hearings.  
           (Franco-Gonzalez v. Holder, No. CV 10-02211 DMG (DTBx), 2013 WL  
          3674492, *8 (C.D. Cal Apr. 23, 2013).)  

          A nationwide class action lawsuit was filed in the U.S. District  
          Court for the Western District of Washington in July 2014 on  
          behalf of thousands of children who are challenging the federal  
          government's failure to provide them with legal representation  
          in deportation hearings.  (J.E.F.M. v. Holder, CV-01026-TSZ.)   









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          These children argue that the failure of the United States  
          government to provide them with lawyers, even though they face  
          the threat of deportation to countries where they may face  
          persecution, violence, or even death, violates their basic  
          rights under international law and is a violation of their due  
          process rights under the Fifth Amendment of the United States  
          Constitution.  ("No person shall be?deprived of life, liberty,  
          or property without due process of law" U.S. Const. Amend 5).   
          Indeed, at least 83 deportees, including children, were reported  
          murdered upon their return to Central America since January  
          2014.  (Sibylla Brodzinsky & Ed Pilkington, US Government  
          Deporting Central American Migrants to Their Deaths (Oct. 12,  
          2015), The Guardian  
           [as of April 12, 2016].)  
          California's immigrant children are expecting the J.E.F.M. court  
          to decide whether they are to be considered part of the class in  
          the next few weeks.  Currently, over 13,800 children in  
          California are not represented by legal counsel in immigration  
          court, and a recent investigative report detailed that some  
          unaccompanied minors who fled violence in Central America are  
          being detained in California on behalf of the Office of Refugee  
          Resettlement for months and in some cases years.  (The  
          California Report, Hundreds of Migrant Teens Are Being Held  
          Indefinitely in Locked Detention (April 8-10, 2016) KQED  
           [as  
          of 4/9/16])  

          Without procedural protections, such as access to appointed  
          counsel, immigrants, including children, in immigration  
          detention facilities are arguably more vulnerable to abuse and  
          in need of additional protections and safeguards.  Mandating  
          that immigrant detention facilities adhere to national  
          immigration detention standards and affording immigrants a  
          private right of action against the detention facility when the  
          immigrant's legal rights are violated will lead to more  
          accountability and less abuse.   

          4.   Immigrant detention facilities in California

           Local governments and local law enforcement entities are not  
          required to detain immigrants on behalf of federal immigration  
          authorities.  The ones in California that decide to detain  
          immigrants do so by choice.  Federal immigration authorities  









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          enter into Intergovernmental Service Agreements (IGSAs) with  
          local governments or local law enforcement whereby the local  
          entity agrees to detain immigrants on behalf of the federal  
          government.  Local governments or local law enforcement can then  
          choose to detain the immigrants in their own facilities or  
          subcontract with for-profit detention facilities instead.  There  
          are currently four for-profit detention facilities in  
          California.  They are located in Adelanto, Calexico,  
          Bakersfield, and San Diego.  

          Ensuring that immigrants, who are oftentimes in need of special  
          care due to persecution in their country of escape or who have  
          suffered arduous journeys, are provided with the services they  
          need to thrive mentally and physically often conflicts with  
          corporate profit objectives.  For-profit detention facilities  
          are accountable to their shareholders and not the people of the  
          State of California.  For example, for-profit detention  
          facilities claim exemptions to the public disclosure  
          requirements under the Freedom of Information Act (FOIA) (5  
          U.S.C. Sec. 552) because they are private corporations, which  
          makes the potentially unlawful conduct occurring within the  
          facility hidden from discovery.  A 2012 article in Forbes noted  
          that "if serious questions arise about?the 16,500 federal  
          immigration detainees held in privately-operated facilities  
          under contracts with the U.S. Department of Homeland Security,  
          there's no legal remedy in place forcing those questions to be  
          answered." (Matt Stroud, Private Prisons Are Exempted From  
          Federal Disclosure Laws; Advocates Say that Should Change, (Feb.  
          7, 2013) Forbes,  
           [as of April 9, 2016].)  The private  
          detention facilities similarly claim an exemption to  
          California's State counterpart, the California Public Records  
          Act (CPRA) (Gov. Code Sec 6250 et seq).  Community Initiatives  
          for Visiting Immigrants in Confinement (CIVIC), a sponsor of  
          this bill, notes that despite numerous reports of inadequate  
          medical care, suicide attempts, sexual assault, and even deaths  
          at for profit immigrant detention facilities, it is difficult to  
          obtain information about these facilities.  CIVIC explains the  
          process for obtaining information about private for profit  
          immigrant detention facilities as follows:

            [A] person can FOIA the IGSA between ICE and the private  









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            prison.  When this occurs, ICE is required to ask the  
            corporation if they are OK with the government disclosing  
            it.  If the corporation is OK, then it will be disclosed.   
            However, it is completely in the discretion of the private  
            prison corporation whether any document pertaining to the  
            IGSA or any other aspect of the business is disclosed  
            through a FOIA request.

          The public policy of the State of California (See comment 2  
          above) is not in line with allowing corporations, who operate  
          with no public accountability and are exempted from public  
          disclosure laws, to profit from holding California's immigrants,  
          who are oftentimes eligible for immigration relief, in prison  
          like conditions while those immigrants have none of the due  
          process protections that are afforded to Californians held in  
          criminal detention.  This population of Californians is  
          exceptionally vulnerable to abuses due to language barriers and  
          inability to access counsel.  It is not the public policy of  
          this state to allow vulnerable Californians to be placed behind  
          closed doors in settings with no accountability to the public  
          for how they treat immigrant detainees.  Therefore, it is  
          consistent with the public policy of the state of California to  
          prohibit local governments and local law enforcement from  
          contracting with private for profit immigrant detention  
          facilities to fulfill the commitment local governments and local  
          law enforcement voluntarily make to the federal government to  
          hold immigrants in civil detention on behalf of the federal  
          government.


          5.   Reports of Abuses in Immigration Detention Facilities:
           
          Staff notes that there are numerous reports detailing abuses of  
          immigrant detainees in immigration detention facilities in  
          California.<1>

            a.   LGBT Abuse 

          ---------------------------
          <1> See e.g. American Civil Liberties Union, Detention Watch  
          Network, and Heartland Alliance's National Immigrant Justice  
          Center Fatal Neglect How Ice Ignores Death in Detention  
          (February 2016);  "Do You See How Much I'm Suffering Here?"  
          Abuse Against Transgender Women in US Immigration Detention,  
          (March 2016) Human Rights Watch.








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             Human Rights Watch notes in their letter of support that they  
            "have uncovered widespread abuse against transgender women in  
            immigration detention, including precisely the kind of abusive  
            misuse of solitary confinement SB 1289 seeks to prevent."  In  
            immigration detention, those belonging to the lesbian, gay,  
            bisexual, and transgender (LGBT) community are among the most  
            vulnerable and reported to be subject to denial of hormones  
            and other medications, forced into long stays in solitary  
            confinement, and subject to sexual assault, and other abuses.   
            (Matt Schiavenza, LGBT Activists Are Still Fighting (June 28,  
            2015)  
             [as of April 9, 2016]; "Do You  
            See How Much I'm Suffering Here?" Abuse Against Transgender  
            Women in US Immigration Detention, (March 2016) Human Rights  
            Watch.)  LGBT immigrants in detention are oftentimes seeking  
            asylum due to persecution in their country of origin and are  
            eligible for asylum because of being persecuted as LGBT.   
            Studies note that in the LGBT detained population there are  
            higher accounts of the use of solitary confinement, sexual  
            abuse, and poor medical care in immigration detention  
            facilities.  (See National Immigrant Justice Center, Stop  
            Abuse of Detained LGBT Immigrants,  
             [as of April 9, 2016].)  In their letter of support,  
            Human Rights Watch detailed abuses against transgender women  
            as follows:


               In our recent research on abuse against transgender  
               women in immigration detention, many of the women we  
               interviewed had been subjected to sexual assault and  
               ill-treatment in detention, and others had been held in  
               abusive conditions of indefinite solitary confinement  
               that are justified by prison authorities as a measure  
               for transgender detainees' protection. Many of the cases  
               of abuse of transgender women we documented occurred in  
               California. As part of its transgender detention policy,  
               ICE now detains a majority of transgender women in a  
               segregated unit at the Santa Ana City Jail, in Santa  
               Ana, California.












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               All of the transgender women who had been at Santa Ana  
               and were interviewed by Human Rights Watch said that  
               they were consistently subjected to strip searches by  
               male guards. Many of these women were repeatedly  
               sexually assaulted prior to fleeing their home countries  
               and described the experience of being required to strip  
               nude and undergo full cavity searches by male guards as  
               painfully reminiscent of prior sexual assaults?



               Several of the transgender women who had been at Santa  
               Ana and were interviewed by Human Rights Watch said they  
               had been subjected to arbitrary "lockdowns," raising  
               concerns that the facility is overusing lockdowns and  
               solitary confinement in ways that violate the rights of  
               the individuals held there and that potentially subject  
               vulnerable detainees to additional trauma. SB 1289 would  
               prohibit the regular use of solitary confinement for any  
               individuals because "he or she is a member of the  
               lesbian, gay, bisexual, transgender, or queer  
               communities."



               Several transgender women told Human Rights Watch that  
               they were unable to access their HIV medications for  
               periods ranging from two to three months after entering  
               detention, including one transgender woman who was held  
               in the segregated unit at Santa Ana. SB 1289 would  
               require that no "delay or disruption" to medical  
               treatment occur.


            b.   Pregnant women are held in detention facilities
           
            CIVIC, a sponsor of this bill, detailed abuse of a pregnant  
            woman in a for-profit detention facility in California as  
            follows:

               [The for profit detention facility] staff fully shackled  
               [the pregnant woman] while she was transported to a  
               hospital to receive urgent medical care related to her  
               pregnancy.  While in transit, she tripped on the  









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               shackles and fell on her stomach.  She suffered a  
               miscarriage the next day.  After a doctor confirmed she  
               had suffered a miscarriage, [the woman] did not receive  
               any follow-up gynecological care to ensure she had not  
               contracted an infection or continued hemorrhaging,  
               despite the fact that [the woman] was experiencing  
               ongoing bleeding and vaginal irritation.  This shackling  
               violated the [2011 Operations Manual ICE  
               Performance-Based National Detention Standards], which  
               bars the restraint of pregnant women absent  
               "extraordinary circumstances that render restraints  
               absolutely necessary." 

             c.    In an attempt to effectuate change in for-profit  
               immigrant detention facilities, immigrant detainees use  
               their bodies to protest through hunger strikes
           
            Reports document poor conditions and treatment in immigration  
            detention facilities, including deaths allegedly due to  
            substandard medical care.  (See e.g. Fatal Neglect How Ice  
            Ignores Death in Detention (February 2016) American Civil  
            Liberties Union, Detention Watch Network, and Heartland  
            Alliance's National Immigrant Justice Center; Abuse in  
            Adelanto: An Investigation into a California Town's  
            Immigration Jail, CIVIC & Detention Watch Network, p. 16.)   
            Frontline reported that immigrants held in immigration  
            detention facilities lack effective recourse if they are  
            victims of crime, including sexual abuse and assault, and  
            sometimes the government deports them before an investigation  
            is completed.  (Sarah Childress, Why Immigrant Detainees Still  
            Aren't Safe from Abuse (Nov. 20, 2013) Frontline  
             [As of April 9, 2016];  
            Catherine Rentz, How Much Sexual Abuse Gets "Lost in  
            Detention"? (October 19, 2011) Frontline  
             [As of April 17, 2016])
                  
             With no ability to fight against poor detention conditions,  
            detainees have turned to hunger strikes to protest poor  
            conditions in immigrant detention facilities.  Late last year,  
            it was reported that hundreds launched a hunger strike at the  
            private for-profit immigrant detention facility in Adelanto,  
            California.  (Katie Linthicum, Hundreds launch hunger strike  









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            at immigrant detention center in Adelanto, Calif. (Nov. 6,  
            2015) Los Angeles Times  
             [as of April 9, 2016].)  More than  
            300 men were reported to have stopped eating to protest  
            conditions including poor medical care.  Id. Hunger strikers  
            included an asylum seeker from Ghana who had been in  
            immigration detention for 11 months since he asked for asylum  
            at the border.  Id.  

          6.  Codifying minimum standards for immigrant detention  
            facilities to follow in the treatment of immigrants held in  
            civil detention on behalf of federal immigration authorities

           Immigration and Customs Enforcement (ICE) promulgated a series  
          of national standards laying out the requirements for basic care  
          in immigrant detention facilities.  The most recent are the  
          Performance-Based National Detention Standards 2011 (PBNDS  
          2011).  ICE uses national detention standards to govern  
          conditions of confinement in its detention facilitates  
          established through contracts with those facilities.  (United  
          States Government Accountability Office, "Immigration Detention"  
          Additional Actions Could Strengthen DHS Efforts to Address  
          Sexual Abuse, p. 12 (Nov. 2013),  
           [as of April 9,  
          2016].)  Immigration detention facilities already agree to  
          follow these standards pursuant to the Intergovernmental Service  
          Agreements (IGSAs) between the federal government and the local  
          governments, including when the local entities contract out with  
          for-profit corporations.  (See e.g. Mesa Verde IGSA pp. 4, 7, 19  
           [as of April 9, 2016].)  


          However, these standards are not required to be adhered to under  
          any federal or state law.  And, there is no recourse for  
          individuals when the facilities fail to follow the standards.   
          In support of SB 1289, Human Rights Watch explains:


            Many of [the abuses documented in California] violate the  
            2011 Performance-Based National Detention Standards (PBNDS)  
            promulgated by US Immigration and Customs Enforcement (ICE)  
            in 2011.  The PBNDS establish concrete standards on access  









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            to counsel, visitation, medical and mental health care,  
            solitary confinement, and sexual assault prevention.  
            Unfortunately, the measures are not legally binding and  
            have only been implemented at select facilities that have  
            voluntarily elected to modify their operating agreements  
            with ICE. Without a mechanism to ensure compliance with  
            these standards by all facilities, such as the one SB 1289  
            would provide, too many immigrant detainees suffer basic  
            rights abuses.


          An additional federal policy, ICE Directive 11065.1 (Review of  
          the Use of Segregation for ICE Detainees), was created to govern  
          the placement of immigrant detainees in solitary confinement.   
          The directive was created after a joint study by two human  
          rights organization revealed that immigrant detainees were  
          increasingly placed in solitary confinement due to mental  
          illness, sexual orientation, or not speaking English.  (See  
          Heartland Alliance and Physicians for Human Rights (Sept. 2012)  
          Invisible in Isolation:  The Use of Segregation and Solitary  
          Confinement in Immigration Detention.)  This policy directive is  
          equally unenforceable by immigrant detainees.  


          This bill makes it clear that every immigrant detention facility  
          in California must, at a minimum, meet the same objective  
          national standards for the detention of immigrants.  Mandating  
          that all immigrant facilities in California must meet the same  
          minimum standards will arguably lead to uniformity of treatment  
          of immigrant detainees across the state and will diminish abuse  
          in the immigrant detention facilities.  


          7.   Enforcement mechanism 



           This bill would require that immigrant detention facilities  
          adhere to the 2011 Operations Manual ICE Performance-Based  
          National Detention Standards as corrected and clarified in  
          February 2013, ICE Directive 11065.1 (Review of the Use of  
          Segregation for ICE Detainees), and other rights granted by this  
          bill.  This bill would provide an enforcement mechanism whereby  
          any immigrant detainee who has been deprived of their rights  









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          would be allowed to bring a civil action for damages, including,  
          but not limited to, damages under Civil Code Section 52,  
          injunctive and other appropriate equitable relief, when an  
          immigrant detention facility, or its agent or person acting on  
          its behalf deprives an immigrant detainee of their rights  
          created under this bill or rights under the 2011 Operations  
          Manual ICE Performance-Based National Detention Standards as  
          corrected and clarified in February 2013 or ICE Directive  
          11065.1 (Review of the Use of Segregation for ICE Detainees).   
          The bill further specifies that an action brought pursuant to  
          the bill is independent of any other action, remedy, or  
          procedure that may be available to an individual under any other  
          provision of law.  As such, this bill preserves all other  
          remedies that may be available to the aggrieved immigrant  
          detainee.

          This bill also provides an enforcement mechanism to the Attorney  
          General, any district attorney, or city attorney whereby they  
          may bring a civil action for injunctive and other appropriate  
          equitable relief in the name of the people of the State of  
          California and may also seek a civil penalty of $25,000, as  
          specified, when an immigrant detention facility, or its agent or  
          person acting on its behalf deprives an immigrant detainee of  
          their rights created under this bill or rights under the 2011  
          Operations Manual ICE Performance-Based National Detention  
          Standards as corrected and clarified in February 2013 or ICE  
          Directive 11065.1 (Review of the Use of Segregation for ICE  
          Detainees). 

          8.   Opposition Arguments

           The California State Sheriffs' Association writes the following  
          in opposition:

             When local correctional facilities house detained  
             immigrants, they do so in coordination with the federal  
             government, according to the laws and standards created by  
             federal authorities.  Additionally, state regulations  
             provide minimum standards for all public detention  
             facilities.  We believe SB 1289 inappropriately inserts  
             the state into matters that are appropriately governed by  
             federal authorities.  Given the fact that the federal  
             government has occupied the field of immigration  
             enforcement, it is certainly possible that this measure  









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             would be preempted by federal law.

             Additionally, by creating public and private rights of  
             action for alleged violations of the federal guidelines  
             and the bill's standards, SB 1289 exposes local  
             governments to state civil liability despite federal  
             oversight and enforcement.  We are also concerned that the  
             bill's provisions limiting for-profit contracting for  
             detention services could inadvertently jeopardize a local  
             government's ability to participate with federal partners.  
              This bill's ban on contracting with private entities  
             could also result in overcrowded local facilities being  
             left as the only viable option for immigrant detention.

          In response to the California State Sheriffs' Association's  
          opposition to immigrant detainees being able to enforce their  
          rights to be free from abuse, the author states:

            The standards in SB 1289 are already included in all  
            immigration detention contracts in California, but are  
            currently not being upheld in large part because there is  
            no consequence if facilities fall below these standards.   
            In fact, there have been many accounts documenting repeated  
            failures to adhere to these standards, resulting in poor  
            medical treatment and other substandard care.  (See e.g.,  
            Fatal Neglect, How ICE ignores Deaths in Detention (Feb.  
            2016) American Civil Liberties Union, Detention Watch  
            Network, and Heartland Alliance's National Immigrant  
            Justice Center;  Congressional letter to ICE about Adelanto  
            conditions, (July 14, 2015),  
            https://www.documentcloud.org/documents/2165708-adelanto-let 
            ter.html.)
            There has to be a consequence for facilities that do not  
            uphold the standards, otherwise abuse and neglect will  
            continue.  And, despite numerous reports of facilities  
            falling below the detention standards, historically there  
            has been little to no action even when facilities fall  
            below the federal standards.  Further, immigration  
            detention is civil in nature.  It is thus important that we  
            provide protections to this especially vulnerable  
            population, especially since these individuals are not  
            afforded some of the protections built into the criminal  
            justice system, such as the right to government-appointed  
            counsel.  









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          In response to the California State Sheriffs' Association's  
          assertion that "SB 1289 inappropriately inserts the state into  
          matters that are appropriately governed by federal  
          authorities?it is certainly possible that this measure would be  
          preempted by federal law," the author responds:

            Immigration is federally regulated.  However, this bill is  
            not about immigration enforcement, this is about ensuring  
            state standards for treating people humanely.  The state is  
            fully within its jurisdiction to assert higher standards of  
            care for detainees being held in our state.  Regardless,  
            the facilities in California are contracting with local  
            governments, which the state has purview over.

          Staff notes that local governments and local law enforcement  
          entities in California are choosing to enter into contracts with  
          federal immigration authorities.  They are not mandated to enter  
          into contracts to detain immigrants on behalf of federal  
          immigration authorities.  In fact, less than twenty local  
          government or local law enforcement entities out of the hundreds  
          of cities, counties, police departments, and Sheriffs offices  
          have made the choice to get paid by the federal government to  
          detain immigrants.  The state would not regulate the federal  
          government through any provision in this bill.  The state would  
          only regulate the local governments and local law enforcement  
          entities.  These are entities the state has clear authority to  
          regulate.

          In response to California State Sheriffs' Association's concern  
          that the bill's ban on contracting out with private for-profit  
          detention facilities "could also result in overcrowded local  
          facilities being left as the only viable option for immigrant  
          detention," the author responds:

            There are alternatives to detention that exist for  
            immigrants that are not being utilized because the private  
            for-profit detention facilities are guaranteed they will be  
            paid for certain numbers of detainees every day.  These  
            alternatives include releasing immigrants on bond or  
            through other alternatives to bond.  (See Mills Legal  
            Clinic Stanford Law School Immigrants' Rights Clinic and  
            Detention Watch Network (Aug. 2010) Community-based  
            Alternatives to Immigration Detention); Mark Noferi, Esq.,  









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            A Human Approach Can Work: The Effectiveness of  
            Alternatives to Detention for Asylum Seekers (July 2015)  
            American Immigration Council.)  Again, local government  
            entities and local law enforcement entities do not have to  
            participate in detaining immigrants in their county or city  
            jails.  In fact, if there is jail overcrowding, the county  
            or city or law enforcement entity should be using their  
            jail facilities to hold criminal detainees, not to choose  
            to make extra money holding immigrants in civil detention.   


          Staff again notes that detaining immigrants on behalf of the  
          federal immigration authorities is optional.  Local governments  
          can avoid any issues of exacerbated overcrowding at jail  
          facilities by choosing not to engage in civilly detaining  
          immigrants.  Moreover, any concerns regarding a local  
          government's liability due to a private right of action can  
          equally be eliminated if the entities choose not to contract to  
          detain immigrants.  However, the bill makes it clear that if  
          California's local governments or local law enforcement entities  
          make the choice to detain immigrants as civil immigration  
          detainees, the immigrants will be held under uniform humane  
          standards and will be afforded a mechanism to enforce their  
          legal rights.  


           Support  :  Alliance for Boys and Men of Color; American  
          Immigration Lawyers' Association (AILA); A New Way of Life  
                                                   Re-entry; Asian Law Alliance; Asian Pacific Islander Legal  
          Outreach; Aspire; California Immigrant Policy Center (CIPC);  
          California Immigrant Youth Justice Alliance; Catholic Charities  
          of the East Bay; Center for Gender and Refugee Studies; Central  
          American Resource Center-Los Angeles; Central American Resource  
          Center of Northern California; Central Laboral de Graton;  
          Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA);  
          Community United Against Violence; Congregations Building  
          Community; Dolores Street Community Services; East Bay Sanctuary  
          Covenant; Ella Baker Center for Human Rights; Enlace; Familia  
          Trans Queer Liberation Movement; Friends Committee on  
          Legislation; Human Rights Watch; Immigrant Youth Coalition;  
          Inland Empire Immigrant Youth Coalition; Interfaith Movement for  
          Human Integrity; Jewish Family Services of Los Angeles; Just  
          Cause/Causa Justa; Justice Now; Lawyers' Committee for Civil  
          Rights of the San Francisco Bay Area; Legal Services for  









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          Prisoners with Children; Los Angeles LGBT Center; Marin  
          Interfaith Alliance; Motivating Individual Leadership for Public  
          Advancement; Mount Diablo Unitarian Universalist Church;  
          National Immigration Law Center (NILC); Pangea Legal Services;  
          PICO; Prison Law Office; San Diego Volunteer Lawyer Program  
          (SDVLP); San Fernando Dream Team; San Joaquin Immigrant Youth  
          Coalition; Services Immigrant Rights and Education Network  
          (SIREN); Silicon Valley Debug; Social Justice Collaborative;  
          Transgender Law Center; TransLatin@; UC Irvine Law Clinic; Vital  
          Immigrant Defense Advocacy and Services Incorporated (VIDA); one  
          individual

           Opposition  :  California State Sheriffs' Association

                                        HISTORY
           
           Source  :  Immigrant Legal Resource Center (ILRC); Community  
          Initiatives for Visiting Immigrants in Confinement (CIVIC)

           Related Pending Legislation  :  None known

           Prior Legislation  :

          AB 900 (Levine, Chapter 694, Statutes of 2015) See Comment 2.

          SB 674 (de Leon, Chapter 721, Statutes of 2015) See Comment 2.

          AB 1343 (Thurmond, Chapter 705, Statutes of 2015) See Comment 2.

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