BILL ANALYSIS Ó
SB 1289
Page 1
Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1289 (Lara) - As Amended May 31, 2016
As Proposed to be Amended
SENATE VOTE: 24-14
SUBJECT: LAW ENFORCEMENT: IMMIGRATION
KEY ISSUES:
1)BECAUSE OF THE LACK OF PUBLIC OVERSIGHT AND ACCOUNTABILITY IN
PRIVATE FACILitIES, SHOULD local governments and law
enforcement agencies be prohibITed from contracting with
companies that operate PRIVATE facilIties to detain immigrants
in civil immigration proceedings for profit?
2)IN LIGHT OF REPORTED ABUSE OF IMMIGRANTS DETAINED IN SUCH
FACILITIES, should immigration detention facilities in
california that are operated by for-profit companies be
required to uphold national minimum standards for the humane
treatment of detainees, enforceable by a private right of
action?
SB 1289
Page 2
SYNOPSIS
Federal immigration authorities, the U.S. Immigration & Customs
Enforcement (ICE) or the U.S. Marshals, 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 publicly-run facilities (i.e.
county jails) or to subcontract with for-profit operators of
private detention facilities instead. The author contends that
because these private detention facilities operate with little
to no public oversight and are not subject to public disclosure
laws, such as the Freedom of Information Act, they are
essentially accountable only to their shareholders and not the
people of the state of California. As a result, abuse and
inhumane treatment of detainees is reportedly tolerated and
persists in these facilities because the public has no
dependable mechanism for getting information about what is going
on behind closed doors. To corroborate these claims, the
Committee has received a number of reports and letters in
support of this bill from immigrant advocates, watchdog
organizations, and human rights advocates describing
investigations that have uncovered widespread incidents of abuse
and mistreatment of immigrants who are held in private detention
facilities in California.
This bill, sponsored by Community Initiatives for Visiting
Immigrants in Confinement (CIVIC), seeks to prohibit local
governments and law enforcement from contracting with private
companies that operate for-profit immigration detention
facilities, and requires these facilities to uphold national
standards for humane treatment of detainees, enforceable by a
private right of action. These national standards were
promulgated by ICE itself to govern conditions of confinement in
its detention facilitates established through contracts with
those facility operators, and are known as the Performance-Based
SB 1289
Page 3
National Detention Standards 2011 (aka "PBNDS 2011"). Among the
standards codified by this bill are provisions that prohibit
immigrant detainees from being deprived of access to an attorney
or other authorized legal representative; access to translation
or interpreters; medical care; freedom from harm or harassment;
and privacy. The bill also creates a number of other
protections and rights for immigrant detainees that would be
equally enforceable under the bill.
This bill is needed, proponents contend, to address the fact
that although the PBNDS 2011 standards may be agreed to under
contracts between ICE and facilities, the standards are
ultimately unenforceable because neither federal nor state law
requires adherence to them. Accordingly, this bill would
require that immigrant detention facilities adhere to the PBNDS
2011 standards and ICE Directive 11065.1, and other rights
granted by this bill, and would, for the first time, provide a
private right of action to allow an immigrant detainee who has
been deprived of his or her rights to bring a civil action for
damages. The Attorney General, district attorneys, and city
attorneys would also be empowered to enforce the bill on behalf
of the people. The bill is opposed by the CA State Association
of Counties, the Sheriffs Association, and the City of Adelanto,
a town in San Bernardino County that has a contract with the
operator of one of the largest private detention facilities in
the state. These opponents contend that the authority of
counties and sheriffs to contract with private detention
facilities should not be limited, and that there is already
sufficient oversight by accrediting agencies to make a private
right of action unnecessary. Proposed amendments to the bill
are technical and simply reorganize the bill into a single
section of the Civil Code.
SUMMARY: Prohibits local governments and law enforcement from
contracting with companies that operate for-profit immigration
detention facilities, and requires these facilities to uphold
national standards for humane treatment of detainees,
SB 1289
Page 4
enforceable by a private right of action. Specifically, this
bill:
1)Prohibits a city, county, city and county, or a local law
enforcement agency 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 in civil immigration proceedings for profit.
2)Provides 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).
3)Prohibits immigrant detention facilities, their agents, or
those acting on their behalf from depriving immigrant
detainees from: (a) access to an attorney or other authorized
legal representative; (b) access to translation or
interpreters; (c) medical care; (d) freedom from harm or
harassment; and (e) privacy. Clarifies that medical care,
includes but is 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.
4)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
SB 1289
Page 5
private and individual consultations with unrepresented
detainees to discuss their cases, and referrals to pro bono
legal services.
5)Requires immigrant detention facilities to do all of the
following when an immigrant detainee is transferred: (a)
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;
(b) ensure that all detainees receive all medications needed
while in transit; (c) ensure that a detainee's treatment plan
is received by the medical personnel at the facility to which
the detainee is being transferred; and (d) ensure that there
is no delay, disruption, or denial of medical treatment, after
or before detainee transfer.
6)Prohibits the involuntary placement of immigrant detainees in
segregated housing because of the detainee's actual or
perceived gender, gender identity, gender expression, or
sexual orientation.
7)Clarifies that 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).
8)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, or its agent
or person acting on its behalf deprives an immigrant detainee
of their rights created under this bill or rights under the
SB 1289
Page 6
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).
9)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 whose rights are
determined to be violated.
10)Authorizes any individual who has been deprived of his or her
rights to bring a civil action for damages, 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).
11)Allows a court to award the petitioner or plaintiff
reasonable attorney's fees and costs in addition to any
damages, injunction, or other equitable relief.
EXISTING STATE LAW:
1)Permits the board of supervisors of any county to contract on
behalf of the sheriff of that county, and the legislative body
of any city may contract on behalf of the chief of police of
that city, to provide supplemental law enforcement services to
specified entities under certain conditions, including to
SB 1289
Page 7
private individuals or private entities to preserve the peace
at special events or occurrences that happen on an occasional
basis. (Government Code 53069.8 (a).)
2)Requires the Board of State and Community Corrections to
establish minimum standards for local correctional facilities,
which standards shall include, but not be limited to, the
following areas: health and sanitary conditions, fire and life
safety, security, rehabilitation programs, recreation,
treatment of persons confined in local correctional
facilities, and personnel training. (Penal Code Section
6030.)
3)Pursuant to the Unruh Civil Rights Act, provides that all
persons within the jurisdiction of California are free and
equal no matter their national origin, citizenship, or
immigration status and are entitled to full and equal
accommodations, facilities, and privileges in all business
establishments of every kind. (Civil Code Section 51.)
EXISTING FEDERAL LAW:
1)Pursuant to 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).)
2)Pursuant to the Immigration and Naturalization Act, 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
SB 1289
Page 8
U.S.C. Sec. 1101 (a)(15)(T).)
3)Pursuant to case law, establishes 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.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill, sponsored by Community Initiatives for
Visiting Immigrants in Confinement (CIVIC), seeks to prohibit
local governments and law enforcement from contracting with
companies that operate for-profit immigration detention
facilities, and requires these facilities to uphold national
standards for humane treatment of detainees, enforceable by a
private right of action. According to the author:
ICE contracts with private companies to run detention
facilities to hold immigrants, including undocumented
people, asylum-seekers, long-time green card holders,
and others who are awaiting their immigration hearings.
There have been consistent reports of human rights
abuses in detention facilities, including physical and
sexual abuse, poor access to healthcare, little access
to legal counsel, and overuse of solitary confinement,
and even death.
SB 1289 will prohibit local governments from
contracting with private companies to detain immigrants
for profit. This bill will also require detention
facilities to meet the basic standards laid out by
SB 1289
Page 9
ICE's 2011 Performance-Based National Detention
Standards and authorize individuals to bring a civil
action against a facility in the event that their
rights are violated. SB 1289 will ensure that
immigrants' rights are protected and there is an
opportunity for them to seek redress when they have not
been upheld.
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, either U.S.
Immigration & Customs Enforcement (ICE) or the U.S. Marshals,
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.
According to figures provided by CIVIC, 62% of all ICE
immigration detention beds in the U.S. are operated by
for-profit prison corporations, up from 49% in 2009. They
contend that operators of these private detention facilities
make billions in profit each year from holding undocumented
persons, while the California county and city partners in these
intergovernmental service agreements experience little economic
gain. There are currently four for-profit detention facilities
in California:
SB 1289
Page 10
(1) ICE contracts with the City of Adelanto, who in turn
contracts with GEO Group to detain immigrants at the Adelanto
Detention Facility (Adelanto).
(2) ICE contracts with the City of McFarland, who in turn
contracts with GEO Group to detain immigrants at the Mesa
Verde Detention Facility (Bakersfield).
(3) ICE contract with the City of Holtville, who in turn
contracts with Management & Training Corp. (MTC) to detain
immigrants at the Imperial Regional Detention Facility.
(Calexico).
(4) U.S. Marshals contract with Corrections Corporation of
America (CCA) to detain immigrants at the Otay Detention
Facility (San Diego).
According to the author, these four privately run facilities
hold almost 85% of detainees statewide, approximately 3,700
people, with the rest held in county jail facilities that
contract with federal immigration authorities. Specifically,
ICE and the U.S. Marshals have intergovernmental service
agreements with four counties, for the detention of immigrants
at the Yuba County Jail (Marysville), Rio Consumnes Correctional
Center (Elk Grove), the West County Detention Facility
(Richmond), James Musick Facility (Irvine), Theo Lacy Facility
(Orange). Lastly, they contract with the City of Santa Ana to
detain immigrants at the Santa Ana City Jail.
SB 1289
Page 11
Altogether, CIVIC reports that these facilities hold a total of
approximately 6,276 immigrants per day in civil confinement.
CIVIC also reports that many of these facilities operate under a
perverse contractual incentive where they are guaranteed a
minimum number of detainees in their facility at all times, thus
ensuring their profits. For example, according to CIVIC, at the
Adelanto Detention Facility (ADF), ICE is guaranteed 975
detainees at all times with a per diem rate of $111 per bed per
day. The City of Adelante, in opposing this bill, shares data
showing that in 2015, GEO Group (the operator of the facility)
paid the city $300,000 in "fiscal mitigation payments" and
$50,000 as an annual administration fee, as well as $175,000 in
funding for one additional law enforcement officer. (Additional
monies received by GEO were in the form of property and sales
taxes.) The City reports that the number of beds has been
recently increased to 1940 beds, and that effective June 2016,
the annual fiscal mitigation payments and administrative fees
will increase to $1,013,600, over a 50% increase from last year
alone.
Private immigrant detention facilities operate with no mechanism
for public oversight. The author contends that because private
for-profit detention facilities operate with little to no
oversight, they are essentially accountable only to their
shareholders and not the people of the California. 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. For example, a 2013 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
SB 1289
Page 12
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.)
The private detention facilities similarly claim an exemption to
the California Public Records Act (CPRA) (Gov. Code Sec 6250 et
seq). CIVIC 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
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.
As a result, abuse and inhumane treatment of detainees is
reportedly tolerated and persists in these facilities because
the public has no dependable mechanism for getting information
about what is going on behind closed doors. Journalists and
SB 1289
Page 13
advocacy groups like CIVIC are occasionally able to document
problems and incidents of mistreatment at these facilities, but
only with the cooperation of the facilities themselves. The
public policy of California is certainly not to allow the abuse
of people who are detained by the government in facilities where
there is no transparency or oversight. In fact, California has
enacted many recent laws protecting the rights of immigrants,
and in this session alone this Committee has approved AB 2027
(Quirk), to assist immigrant victims of human trafficking apply
for a U-Visa by expediting the process of obtaining the
necessary certification of helpfulness, and AB 60 (Gonzales) to
establish stronger consumer protections for immigrants seeking
relief under prospective federal immigration reform and
executive action.
Thus, the Committee believes it is consistent with the public
policy of this state to not enable private companies to profit
from detaining immigrants in California under questionable
conditions, especially where there is so little public
transparency or accountability. Accordingly, this bill would
prohibit local governments and law enforcement from contracting
with companies that operate for-profit immigration detention
facilities to detain immigrants. The Committee notes that the
Legislature lacks authority to prohibit private immigrant
detention facility operators from contracting directly with ICE
or federal authorities to hold immigrants, and this bill does
not attempt to preclude those contracting practices.
Despite lack of transparency, advocates have documented patterns
of widespread abuse of immigrants held in private detention
facilities. The Committee has received a number of reports and
SB 1289
Page 14
letters in support of this bill from immigrant advocates,
watchdog organizations, and human rights advocates describing
widespread incidents of abuse and mistreatment of immigrants
held in private detention facilities in California, as well as
in facilities in other states operated by the same companies
that operate facilities in California. In its report "Abuse in
Adelanto: An Investigation into a California Town's Immigration
Jail," CIVIC details a number of disturbing examples of
prolonged detention, medical abuse and neglect, violations of
religious freedom, attempted suicides, and the negligent deaths
of detainees-all at the Adelanto facility alone. The National
Immigrant Justice Center reports that among LGBT individuals in
the 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;
available at: http://www.immigrantjustice.
org/stop-abuse-detained-lgbt-immigrants .)
Human Rights Watch writes that it has interviewed many
transgender women in immigration detention who report being
subjected to sexual assault and regular strip searches by male
guards, including at the Santa Ana City jail, and others who
report having been held in abusive conditions of indefinite
solitary confinement that are justified by prison authorities as
a measure for transgender detainees' protection. Finally, CIVIC
summarizes cases from several other states where the same
private detention center companies (namely, Geo Group, CCA, and
MTC) have faced lawsuits (and in some cases been held civilly
liable) for acts of sexual harassment, wrongful death, and
medical neglect, among other things.
SB 1289
Page 15
To address these issues, the bill prohibits immigrant detention
facilities, their agents, or those acting on their behalf from
depriving immigrant detainees from medical care, freedom from
harm or harassment, and privacy. The bill provides that medical
care includes 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. Among
other things, the bill requires immigrant detention facilities
to: (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. The bill also prohibits the
involuntary placement of immigrant detainees in segregated
housing because of the detainee's actual or perceived gender,
gender identity, gender expression, or sexual orientation.
Lack of access to legal representation and telephone
communication. Because immigration proceedings are civil
matters, not criminal, detainees have fewer rights afforded to
them than criminal defendants, including the right to an
attorney. CIVIC reports, for example, that of the 89 people
detained at ADF that it monitored over a six-month period, only
12.3 percent had legal representation-below the already low
national average of 16 percent (Abuse in Adelanto: An
Investigation into a California Town's Immigration Jail (October
2015); CIVIC and Detention Watch Network.) Because most
detainees go completely without legal representation, it is
essential that they have access to a law library or telephone
communications where they can communicate with advocates or
SB 1289
Page 16
family members outside the center who can arrange assistance.
Even where detainees at Adelanto had legal representation, CIVIC
reported the difficulties that these people experienced due to
obstructive actions taken by facility staff. The lack of access
to legal representation is even more tragic because many
detainees in custody may, in fact, qualify to remain in the
U.S., but are instead deported because they were never able to
obtain the assistance of legal counsel.
To address these issues, the bill 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. In addition, the bill specifically
prohibits immigrant detention facilities from depriving
immigrant detainees from access to an attorney or other
authorized legal representative, and access to translation or
interpreters.
Codifying the national standards for basic care in immigrant
detention facilities, promulgated by ICE for facilities it
contracts with. ICE has promulgated a series of national
standards laying out the requirements for basic care in
immigrant detention facilities, known as the Performance-Based
National Detention Standards 2011 as corrected and clarified in
February 2013 (Hereafter, 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,
SB 1289
Page 17
"Immigration Detention" Additional Actions Could Strengthen DHS
Efforts to Address Sexual Abuse, p. 12 (Nov. 2013), Available
at: http://www.gao.gov/assets/660/659145.pdf ) Immigration
detention facilities agree to follow these standards pursuant to
the Inter-governmental 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; available at http://www .
documentcloud.org/ documents/
2631228-Mesa-Verde-CA-IGSA-Contract.html.)
This bill is necessary, proponents contend, to address the fact
that although the PBNDS 2011 standards may be agreed to under
the contract, the standards are unenforceable because they are
not required to be adhered to under any federal or state law.
Furthermore, there is no recourse for detainees when the
detention facilities commit acts that violate these 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 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
SB 1289
Page 18
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
Invisible in Isolation: The Use of Segregation and Solitary
Confinement in Immigration Detention (Sept. 2012), Heartland
Alliance and Physicians for Human Rights.) Unfortunately, this
policy directive is equally unenforceable by immigrant
detainees, as there is no law requiring it to be followed.
Accordingly, this bill seeks to create enforceable rights for
immigrant detainees centered on the national standards described
above. The bill provides 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 PBNDS 2011
standards as well as ICE Directive 11065.1. The bill makes
clear that, as a policy matter, every immigrant detention
facility in California should be subject to the same national
standards for the detention of immigrants, including private
detention facilities contracted with local governments.
Mandating that private immigration detention facilities in
California meet national standards is intended to prevent and
reduce patterns of abuse that have been documented in these
SB 1289
Page 19
facilities.
This bill allows enforcement of treatment standards by an
immigrant detainee through a private right of action, or by
public prosecution. This bill would require that immigrant
detention facilities adhere to the PBNDS 2011 standards and ICE
Directive 11065.1, and other rights granted by this bill.
Importantly, the bill will, for the first time, provide an
enforcement mechanism to allow an immigrant detainee who has
been deprived of his or her rights 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 the detainee of their rights
created under this bill, or rights specified in the PBNDS 2011
standards or ICE Directive 11065.1. The bill further specifies
that an action brought under the bill is independent of any
other action, remedy, or procedure that may be available to an
individual under any other provision of law, thus preserving all
other remedies that may be available to the detainee.
This bill also allows enforcement by the Attorney General, any
district attorney, or city attorney to allow a civil action for
injunctive and other appropriate equitable relief to be brought
in the name of the people of the State of California, and also
allows the prosecutor to seek a civil penalty of $25,000, as
specified, when an immigrant detention facility deprives an
immigrant detainee of their rights created under this bill or
rights under the PBNDS 2011 standards or ICE Directive 11065.1.
SB 1289
Page 20
Proposed Author's Amendments. The author proposes a series of
technical amendments that correct inconsistent drafting,
reorganize the different sections of the bill, and combine
everything into a single section of the Civil Code. The
amendments are non-substantive and technical in nature.
ARGUMENTS IN OPPOSITION: This bill is opposed by the California
State Association of Counties (CSAC), who state:
CSAC opposes any legislation that would limit a
county's authority to contract with a facility that
detains offenders whether they are immigrants, felons,
or misdemeanants. Almost half of California's county
jails have some sort of capacity order limiting the
number of offenders they can hold before they must be
released because of overcrowding. SB 1289 ties local
law enforcement's hands and increases the possibility
of litigation. Currently, the City and County of San
Francisco and San Francisco Sheriff Ross Mirkarimi are
being sued by Kate Steinle's family in a wrongful death
lawsuit, for releasing Juan Francisco Lopez-Sanchez
from jail without notifying federal immigration
officials. While Mr. Lopez-Sanchez was a seven-time
convicted felon, there was no active warrant for him.
The San Francisco Sheriff's Department released him
stating that they had no "legal basis" to hold him.
SB 1289
Page 21
In response, the author notes that in the San Francisco case,
Lopez-Sanchez was not released from county jail because of
overcrowding conditions, but in fact because of local San
Francisco law that did not give the Sheriff legal authority to
continue to hold him.
The bill is also opposed by the California State Sheriffs'
Association, which states:
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 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.
SB 1289
Page 22
In response to the California State Sheriffs' Association's
assertion that the bill might 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.
With respect to the Sheriffs' opposition to creating a private
right of action to enforce the minimal standards of treatment,
the author responds:
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. [Citation omitted] There has to
SB 1289
Page 23
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.
REGISTERED SUPPORT / OPPOSITION:
Support
Community Initiatives for Visiting Immigrants in Confinement
(CIVIC) (sponsor)
Friends Committee on Legislation of California
Services, Immigrant Rights & Education Network
Human Rights Watch
Silicon Valley Debug
SB 1289
Page 24
The LGBT Center Orange County
Immigrant Youth Coalition
Public Counsel
Immigration Equality
CARECEN Norcal and Socal
TransLatin@
Justice Now
Congregations Building Communities
Centro Laboral de Graton
VIDAS
American Immigration Lawyers Association
Pangea Legal Services
California Immigrant Youth Justice Alliance
SB 1289
Page 25
Community United Against Violence
Catholic Charities of the East Bay
National Immigration Law Center
Asian Pacific Islander Legal Outreach
Lawyers Committee for Civil Rights
ASPIRE
Asian Law Alliance
Marin Interfaith Alliance
Interfaith Movement for Human Integrity
San Diego Volunteer Lawyer Program
Familia Trans Queer Liberation Movement
East Bay Sanctuary Covenant
Mount Diablo Unitarian Universalist Church
SB 1289
Page 26
Inland Empire Immigrant Youth Coalition
Legal Services for Prisoners with Children
Alliance for Boys and Men of Color
UCI Law Clinic
Immigrant Legal Resource Center
Motivating Individual Leadership for Public Advancement
Prison Law Office
PICO
Jewish Family Services Los Angeles
Transgender Law Center
San Joaquin Immigrant Youth Coalition
A New Way of Life Re-entry
Center for Gender and Refugee Studies
SB 1289
Page 27
Enlace
Coalition for Humane Immigrant Rights of Los Angeles
San Fernando Dream Team
Dolores Street Community Services
Causa Justa/Just Cause
LA LGBT Center
SEIU
Latino Coalition for a Healthy California
Californians for Safety and Justice
Our Family Coalition
Opposition
California Sheriffs Association
SB 1289
Page 28
California State Association of Counties
City of Adelanto
Analysis Prepared by:Anthony Lew / JUD. / (916)
319-2334