BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1289|
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THIRD READING
Bill No: SB 1289
Author: Lara (D)
Amended: 5/31/16
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-2, 4/19/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SUBJECT: Law enforcement: immigration
SOURCE: Community Initiatives for Visiting Immigrants in
Confinement
Immigrant Legal Resource Center
DIGEST: This bill prohibits local law enforcement agencies and
local governments from contracting with for-profit entities to
detain immigrants on behalf of federal immigration authorities.
This bill requires that immigrant detention facilities adhere to
national immigration standards for the detention of immigrants.
This bill further requires that immigrants in detention be
provided other legal rights, as specified. This bill authorizes
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.
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ANALYSIS:
Existing law:
1) Provides that everyone has the right to seek and to enjoy in
other countries asylum from persecution.
2) Protects 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 social
group.
3) 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 Human Trafficking Visa (T-Visa).
4) 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.
5) Establishes that the care and custody of unaccompanied
minors is the responsibility of the Office of Refugee
Resettlement in the Department of Health and Human Services
instead of the Department of Homeland Security.
6) 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.
This bill:
1) Prohibits local governments or local law enforcement from
entering into or renewing a contract, or modifying a contract
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to extend the length of the contract, with a private
corporation, contractor or vendor to detain immigrants in
civil immigration proceedings for profit.
2) Provides that a city, county, city and county, or a local
law enforcement agency that chooses to enter into a contract,
renews a contract, or modifies a contract to extend the
length of the contract, to detain immigrants in civil
immigration proceedings, shall detain immigrants only
pursuant to a contract that requires the immigration
detention facility operator 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).
3) Makes clear that an immigration detention facility can
exceed 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).
4) Prohibits immigrant detention facilities, agents of
immigration detention facility operators, or those acting on
their behalf from depriving immigrant detainees: (a) access
to legal representatives; (b) access to translation or
interpreters; (c) medical care; (d) freedom from harm or
harassment; and (e) privacy.
5) Prohibits an immigration detention facility, an agent or
person acting on behalf of the immigration detention
facility, from depriving a detainee access to medical care,
including but not limited to, HIV medication and
transition-related health care, and further prohibits the
denial of medical care on the basis that an immigrant is
likely to be released or deported.
6) Requires an immigrant detention operator to do all of the
following when an immigrant detainee is transferred:
Ensure that all medical records of the detainee are
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promptly transferred to ICE at the time of transfer or
promptly provided to the facility to which the detainee is
transferred;
Ensure that all detainees receive all medications
needed while in transit;
Ensure that a detainee's treatment plan is received by
the medical personnel at the facility to which the
detainee is being transferred; and
Ensure that there is no delay, disruption, or denial
of medical treatment, after or before detainee transfer.
1) Prohibits 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 also requires that transgender
and gender non-conforming immigration detainees be given the
option to choose a housing placement consistent with their
gender identity.
2) Requires 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.
3) Authorizes 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
operator, or its agent or person acting on its behalf
violates rights created under this bill or 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).
4) Authorizes any individual who has been injured by a failure
to comply with the rights created under this bill to bring a
civil action for damages, including, but not limited to,
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damages under Section 52 of the Civil Code, injunctive and
other appropriate equitable relief, when an immigrant
detention facility operator, or its agent or person acting on
its behalf deprives an immigrant detainee of their rights
created under this bill or violates 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).
5) Requires 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 who has
been injured.
6) Provides 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.
7) Makes related legislative findings and declarations.
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, U-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.
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
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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 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 prohibits local law enforcement and local governments
from contracting with for-profit entities to detain immigrants
on behalf of federal immigration authorities and requires that
all immigrant detention facilities adhere to national
immigration standards for the detention of immigrants. This
bill creates legal rights for immigrants in detention, including
but not limited to, access to legal representatives, access to
translation or interpreters, medical care, freedom 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
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attorneys to bring suits against detention facilities for
violations of the national detention standards and other legal
rights created by this bill.
Comments
The author writes:
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.
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.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee, there are
potential fiscal impacts on the Attorney General, local
prosecutors, and local governments. There are potentially
significant workload increases (General Fund) should the
Attorney General choose to bring civil actions for injunctive
and other equitable relief, offset in part by civil penalty
revenues. To the extent the number and complexity of cases
brought forward is significant, costs could rise into the
hundreds of thousands of dollars annually. There are
potentially significant non-reimbursable local costs (Local
Funds) for local prosecutors to bring civil actions for
injunctive and other equitable relief, offset in part by civil
penalty revenues. There are also potentially significant losses
of future revenue (Local Funds) due to the inability of local
governments/agencies to contract with for-profit entities for
immigrant detention services. To the extent a local law
enforcement agency opts to detain immigrants in its facilities
through a direct contract with the federal government, the
agency could incur potentially significant non-reimbursable
costs (Local Funds) to ensure immigrant detainee rights as
prescribed are met. There are also unknown and potentially
major costs (private funds) for private contracts and vendors to
adhere to the specified standards and processes for detainee
transfers and rights to counsel, translators, interpreters, and
medical care as outlined in this bill.
SUPPORT: (Verified5/30/16)
Community Initiatives for Visiting Immigrants in Confinement
(co-source)
Immigrant Legal Resource Center (ILRC) (co-source)
Alliance for Boys and Men of Color
American Immigration Lawyers' Association
A New Way of Life Re-entry; Asian Law Alliance
Asian Pacific Islander Legal Outreach; Aspire
California Immigrant Policy Center
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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
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 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
Pangea Legal Services
PICO
Prison Law Office
San Diego Volunteer Lawyer Program
San Fernando Dream Team
San Joaquin Immigrant Youth Coalition
Services Immigrant Rights and Education Network
Silicon Valley Debug
Social Justice Collaborative
Transgender Law Center
TransLatin@
UC Irvine Law Clinic
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Vital Immigrant Defense Advocacy and Services Incorporated
One individual
OPPOSITION: (Verified5/30/16)
California State Sheriffs' Association
Prepared by:Margie Estrada / JUD. / (916) 651-4113
5/31/16 21:51:58
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