BILL ANALYSIS
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THIRD READING
Bill No: ACR 140
Author: Adams (R)
Amended: 5/10/10 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/22/10
AYES: Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,
Wright
ASSEMBLY FLOOR : 76-0, 5/13/10 (Consent) - See last page
for vote
SUBJECT : Undocumented foreign nationals: incarceration:
reimbursement
SOURCE : Author
DIGEST : This resolution urges the Governor to demand the
Bureau of Justice Assistance reimburse the State of
California for all costs of incarcerating undocumented
foreign nationals.
ANALYSIS : Existing law defines the term "alien" as "any
person not a citizen or national of the United States." (8
U.S.C. Section 1101(a)(3).)
Existing law specifies that the Attorney General (AG) may
not remove an alien who is sentenced to imprisonment until
the alien is released from imprisonment and states that
CONTINUED
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parole, supervised release, probation, or the possibility
of arrest or further imprisonment is not a reason to defer
removal. (8 U.S.C. Section 1231(a)(4).)
Existing law states that no cause or claim may be asserted
under 8 U.S.C. Section 1231(4) against any official of the
United States or of any state to compel the release,
removal, or consideration for release or removal of any
alien. (8 U.S.C. Section 1231(a)(4)(D).)
Existing law states that for purposes of this subsection,
"undocumented criminal alien" is defined as an alien who (8
U.S.C. Section1231(i)(3):
1.Has been convicted of a felony or of two misdemeanors.
2.Entered the United States without inspection at any time
or place other than as designated by the AG.
3.Was the subject of exclusion or deportation proceedings
at the time he or she was taken into custody by
California?
4.Was admitted as a nonimmigrant and at the time he or she
was taken into custody by California, has failed to
maintain the nonimmigrant status in which the alien was
admitted or to which it was changed, as specified, or to
comply with the conditions of any such status.
Existing law provides for the arrest and detention of an
alien pending a decision on whether the alien is to be
removed from the United States. (8 U.S.C. Section
1226(a).)
Existing law states that the AG shall take into custody
specified inadmissible and deportable aliens who have
committed specified crimes, when the alien is released,
without regard to whether the alien is released on parole,
supervised release or probation, and without regard to
whether the alien may be arrested or imprisoned again for
the same offense. (8 U.S.C. Section 1226(c)(1).)
Existing law allows the AG to release from custody criminal
aliens only under specific circumstances, and states that a
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decision to release such an alien shall take place in
accordance with a procedure that considers the severity of
the offense committed by the alien. (8 U.S.C. Section
1226(c)(2).)
Existing law states that the AG's discretionary judgment
regarding the custody of criminal aliens shall not be
subject to review and provides that no court may set aside
any action or decision by the AG regarding the detention or
release of any alien or the grant, revocation, or denial of
bond or parole. (8 U.S.C. Section 1226(e).)
Existing law creates specified exceptions for removal of
nonviolent offenders prior to completion of their sentence
of imprisonment. (8 U.S.C. Section 1231(a)(4)(B).)
Existing law states in the case of an alien in the custody
of a state, or a political subdivision of a state, if the
chief state official exercising authority with respect to
the incarceration of the alien determines that the alien is
confined for a non-violent offense (with specified
exceptions); the removal is in the best interest of the
state, and submits a written request to the AG that such
alien be so removed. (8 U.S.C. Section 1231(4)(A)(ii).)
Existing law states that no cause or claim may be asserted
under 8 U.S.C. Section 1231(4) against any official of the
United States or of any state to compel the release,
removal, or consideration for release or removal of any
alien. (8 U.S.C. Section 1231(a)(4)(D).)
Existing law provides that any alien who has been denied
admission to the United States, excluded, deported or
removed, or who has departed the United States while an
order of exclusion, deportation or removal is outstanding,
and thereafter enters or attempts to enter the United
States, or except as specified, is found in the United
States, shall be fined, imprisoned for two years or both.
(8 U.S.C. Section 1326(a).)
Existing law provides that the California Department of
Corrections and Rehabilitation (CDCR) shall establish
procedures to identify undocumented inmates and report
annually to the Legislature the number of persons
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identified as undocumented. (Penal Code Section 5025.)
Existing law provides that the CDCR should set up a
procedure for the notification of the embassy of a foreign
nation inmate and set up procedures to process applications
for transfer of foreign national inmates to their country
of citizenship. (Penal Code Section 5028.)
Existing law provides that under its Foreign Prisoner
Transfer Program, the Board of Prison Terms shall devise a
method of notifying each foreign born inmate in a prison or
reception center operated by the CDCR that he or she may be
eligible to serve his or her term of imprisonment in his or
her nation of citizenship as provided in federal treaties.
This Resolution declares all of the following:
1. Immigration policy and controlling the nation's borders
are clear, fundamental responsibilities of the federal
government.
2. The federal government has failed to discharge its
fundamental responsibilities, and, as a consequence,
high-impact states such as California face extraordinary
costs associated with incarcerating undocumented foreign
nationals.
3. The federal State Criminal Alien Assistance Program
(SCAAP), governed by the federal Immigration and
Nationality Act, requires the federal government to
reimburse the State of California and local governments
for the cost of incarcerating undocumented foreign
nationals.
4. SCAAP provides federal payments to states and localities
that incur costs for incarcerating criminals who were
born outside the United States or one of its territories
and have no reported or documented claim to United
States citizenship, who have at least one felony or two
misdemeanor convictions for violations of state or local
law, and who are incarcerated for at least four
consecutive days during the reporting period.
5. The United States Department of Justice (DOJ) through
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the federal BJA administers SCAAP, in conjunction with
the Bureau of Immigration and Customs Enforcement,
Department of Homeland Security.
6. The annual cost of incarcerating an inmate in state
prison is now $51,670, according to statistics from the
Legislative Analyst's Office (LAO).
7. For the last reporting period by the BJA, the State of
California received $118,030,160 in reimbursement for
32,806 eligible inmates, a return of $3,598 per inmate.
Much of the incarcerating costs are borne by counties
and cities, most of which traditionally operate with
slim budgets and staffing.
8. For the last reporting period by the BJA, counties and
cities in California received $43,717,418 in
reimbursement for 66,386 eligible inmates, a return of
$659 per inmate.
9. Despite the continued increasing costs associated with
the incarceration of undocumented foreign nationals, no
funds are provided for SCAAP for the purposes of
assisting states, in the President's 2010 budget
request.
10.The federal government has not met its national
immigration policy obligations or adequately compensated
the State of California or its local governments for the
costs of incarcerating undocumented foreign nationals in
its prisons and jails.
This resolution provides that it be resolved by the
Assembly of the State of California, the Senate thereof
concurring, that the Legislature hereby urges the Governor
to demand the BJA to reimburse the State of California for
all costs of incarcerating undocumented foreign nationals.
This resolution further provides it be resolved that the
Chief Clerk of the Assembly transmit copies of this
resolution to the President and Vice President of the
United States, to the Speaker of the House of
Representatives and to each Senator and Representative form
California in the Congress of the United States.
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Prior Legislation
ACR 24 (Blakeslee), Resolution Chapter 88, Statutes of
2008, is identical to this resolution.
AB 39 (Benoit), of the 2007-08 Legislative Session, would
have required the CDCR Secretary to demand in writing that
the United States AG take federal custody of any
undocumented inmate incarcerated in California's
correctional system. AB 39 failed passage in Assembly
Public Safety Committee.
FISCAL EFFECT : Fiscal Com.: No
SUPPORT : (Verified 6/23/10)
County of San Diego
ARGUMENTS IN SUPPORT : According to the author's office,
while it is widespread knowledge that the incarceration of
foreign nationals is the responsibility of the federal
government, the federally-funded State Criminal Alien
Assistance Program does not come close to covering state
and local costs of incarcerating these individuals.
According to the Legislative Analyst's Office, the annual
cost to the State of California to house an inmate is
$51,670. For the last reporting period by the BJA, the
State of California received $118,030,160 in reimbursement
for 32,806 eligible inmates, a return of $3,598 per inmate.
Counties and cities in California received $43,717,418 in
reimbursement for 66,386 eligible inmates, a return of $659
per inmate. This resolution urges the Governor to demand
that BJA reimburse the state of California for all costs of
incarcerating foreign nationals through SCAAP.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall,
Bill Berryhill, Tom Berryhill, Blakeslee, Block,
Blumenfield, Bradford, Brownley, Buchanan, Charles
Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De
La Torre, De Leon, DeVore, Emmerson, Eng, Evans, Feuer,
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Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines,
Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey,
Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries,
Jones, Knight, Lieu, Logue, Bonnie Lowenthal, Ma,
Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Silva, Smyth, Solorio, Audra Strickland,
Swanson, Torlakson, Torres, Torrico, Tran, Villines,
Yamada, John A. Perez
NO VOTE RECORDED: Caballero, Norby, Skinner, Vacancy
RJG:do 6/23/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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