BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       SB 1289|
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                                UNFINISHED BUSINESS 


          Bill No:  SB 1289
          Author:   Lara (D) 
          Amended:  8/19/16  
          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

           SENATE FLOOR:  24-14, 6/1/16
           AYES:  Allen, Beall, Block, De León, Hall, Hancock, Hernandez,  
            Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu,  
            McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth,  
            Wieckowski, Wolk
           NOES:  Anderson, Bates, Berryhill, Cannella, Fuller, Gaines,  
            Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak
           NO VOTE RECORDED:  Galgiani, Runner

           ASSEMBLY FLOOR:  51-28, 8/23/16 - See last page for vote

           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.   








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          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  
          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.


          Assembly Amendments (1) remove the private right of action and  
          attorney fees provisions; (2) remove the requirements related to  
          the immigrant detainee's transfer; (3) remove the legal  
          orientation program requirement; (4) establish that the  
          provision prohibiting local law enforcement agencies and local  
          governments from contracting with for-profit entities to detain  
          immigrants on behalf of federal immigration authorities becomes  
          operative on January 1, 2018; and (5) make other conforming and  
          nonsubstantive changes.


          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). 








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           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, as of January 1, 2018, 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 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  








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             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 (which would still include and  
             not be limited to, HIV medication and transition-related  
             health care, and would still need to be provided even if an  
             immigrant is likely to be released or deported); (d) freedom  
             from harm or harassment; and (e) privacy.


           5) 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.  


           6) 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  








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             Standards as corrected and clarified in February 2013, or ICE  
             Directive 11065.1 (Review of the Use of Segregation for ICE  
             Detainees). 


           7) 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.


           8) Subjects any facility that detains an immigrant pursuant to  
             a contract with a city, county, city and county, or a local  
             law enforcement agency to the California Public Records Act.


           9) Makes related legislative findings and declarations,  
             includes definitions.


          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  








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          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 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  








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          enforcement mechanism whereby the Attorney General, district  
          attorneys, and city attorneys may 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  








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            companies make billions in profits every year from  
            incarcerating mothers, fathers, children, and others in our  
            broken immigration system.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          According to the Assembly Appropriations Committee:


          1)Attorney General:  Potentially significant workload increase  
            (GF) should the Attorney General choose to bring civil actions  
            for injunctive and other equitable relief, offset in part by  
            civil penalty revenues. Additional workload would include the  
            cost of additional staffing to complete the drafting of  
            pleadings, discovery, and extensive legal research required  
            for these cases. To the extent the number and complexity of  
            cases brought forward is significant, costs could rise into  
            the hundreds of thousands of dollars annually.  


          2)Local prosecutors:  Potentially significant non-reimbursable  
            local costs (Local Funds) to bring civil actions for  
            injunctive and other equitable relief, offset in part by civil  
            penalty revenues.


          3)Local governments/agencies:  Potentially significant loss of  
            future revenue (Local Funds) due to the inability 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.


          4)Private contractors/vendors:  Unknown, potentially major costs  
            (private funds) to adhere to the specified standards and  
            processes for detainee transfers and rights to counsel,  








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            translators, interpreters, and medical care as outlined in the  
            bill.  


          SUPPORT:   (Verified8/21/16)


          Community Initiatives for Visiting Immigrants in Confinement  
          (co-source)
          Immigrant Legal Resource Center (co-source)
          A New Way of Life Re-entry
          Alliance for Boys and Men of Color 
          American Immigration Lawyers' Association 
          Asian Law Alliance
          Asian Pacific Islander Legal Outreach
          Aspire
          California Immigrant Policy Center 
          California Immigrant Youth Justice Alliance
          Catholic Charities of the East Bay
          Center for Gender and Refugee Studies
          Central American Resource Center of Northern California
          Central American Resource Center-Los Angeles
          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








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          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
          Vital Immigrant Defense Advocacy and Services Incorporated 
          One individual


          OPPOSITION:   (Verified8/21/16)


          California State Sheriffs' Association
          California State Association of Counties
          City of Adelanto


           ASSEMBLY FLOOR:  51-28, 8/23/16
           AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown,  
            Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper,  
            Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger  
            Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low,  
            McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Wood, Rendon
           NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,  
            Chávez, Dahle, Beth Gaines, Gallagher, Gray, Grove, Hadley,  
            Harper, Jones, Kim, Lackey, Linder, Mathis, Mayes, Melendez,  
            Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk








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           NO VOTE RECORDED: Maienschein



          Prepared by:Margie Estrada / JUD. / (916) 651-4113
          8/29/16 10:34:39


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