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.
SB 1289 (Lara)
PageB of?
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
SB 1289 (Lara)
PageC of?
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).
SB 1289 (Lara)
PageD of?
(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
SB 1289 (Lara)
PageE of?
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,
SB 1289 (Lara)
PageF of?
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.
SB 1289 (Lara)
PageG of?
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
SB 1289 (Lara)
PageH of?
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.)
SB 1289 (Lara)
PageI of?
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
SB 1289 (Lara)
PageJ of?
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
SB 1289 (Lara)
PageK of?
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.
SB 1289 (Lara)
PageL of?
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.
SB 1289 (Lara)
PageM of?
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
SB 1289 (Lara)
PageN of?
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
SB 1289 (Lara)
PageO of?
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
SB 1289 (Lara)
PageP of?
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
SB 1289 (Lara)
PageQ of?
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
SB 1289 (Lara)
PageR of?
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.
SB 1289 (Lara)
PageS of?
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.,
SB 1289 (Lara)
PageT of?
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
SB 1289 (Lara)
PageU of?
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.
**************