BILL ANALYSIS
AB 1275
Page 1
Date of Hearing: April 21, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1275 (Anderson) - As Introduced: February 27, 2009
SUMMARY : Mandates an arresting authority to report to the
United States (U.S.) Immigration and Customs Enforcement (ICE)
the presence of an arrestee when both of the following occur:
1)The arrestee is arrested for driving under the influence (DUI)
or DUI causing bodily injury.
2)The arrestee fails to provide the arresting authority with
appropriate documentation demonstrating his or her legal
presence in the U.S.
EXISTING LAW :
1)States that it is unlawful for any person who is under the
influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage or drug, to drive
a vehicle. [Vehicle Code Section 23152(a).]
2)Provides that it is unlawful for any person who has 0.08% or
more, by weight, of alcohol in his or her blood to drive a
vehicle. [Vehicle Code Section 23152(b).]
3)Punishes a first violation of DUI by imprisonment in the
county jail for not less than 96 hours, at least 48 of which
shall be continuous, nor more than six months, and by a fine
of not less than $390 nor more than $1,000. [Vehicle Code
Section 23536(a).]
4)Mandates that if a person is convicted of a DUI violation and
the offense occurred with 10 years of a separate violation of
specified offenses, the person shall be punished by
imprisonment in the county jail for not less than 90 days nor
more than one year and a fine of not less than $390 nor more
than $1,000. [Vehicle Code Section 23540(a).]
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5)States that it is unlawful for any person, while DUI of any
alcoholic beverage or drug, or under the combined influence of
any alcoholic beverage and drug, to drive a vehicle and
concurrently do any act forbidden by law, or neglect any duty
imposed by law in driving the vehicle, which act or neglect
proximately causes bodily injury to any person other than the
driver. [Vehicle Code Section 23153(a).]
6)Makes it unlawful for any person, while having 0.08% or more,
by weight, of alcohol in his or her blood to drive a vehicle
and concurrently do any act forbidden by law, or neglect any
duty imposed by law in driving the vehicle, which act or
neglect proximately causes bodily injury to any person other
than the driver. [Vehicle Code Section 23153(b).]
7)Provides that any person convicted of a first offense of DUI
with bodily injury, that person shall be punished by
imprisonment in the state prison, or in a county jail, for not
less than 90 days nor more than one year, and by a fine of not
less than $390 nor more than $1,000. (Vehicle Code Section
23554.)
8)Defines the term "alien" as any person not a citizen or
national of the U.S. [8 U.S.C. Section 1101(a)(3).]
9)Defines "undocumented criminal alien" as an alien who [8
U.S.C. Section 1231(i)(3)]:
a) Has been convicted of a felony or two misdemeanors, and,
b) Entered the U.S. without inspection at any time or place
other than as designated by the U.S. Attorney General (AG);
i) Was the subject of exclusion or deportation
proceedings at the time he or she was taken into custody
by California; or,
ii) Was admitted as a non-immigrant and at the time he
or she was taken into custody by California had failed to
maintain the non-immigrant status in which the alien was
admitted or to which it was changed, as specified, or to
comply with the conditions or any such status.
10)Deems inadmissible, any alien convicted of acts which
constitute the essential elements of a crime involving moral
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turpitude or a violation of any law or regulation of a State
related to a controlled substance. [8 U.S.C. Section
1182(2)(A).]
11)Lists the criminal offenses for which an alien is deportable:
a) Crimes of moral turpitude committed within five years of
admission to the U.S., or 10 years in the case of an alien
provided lawful permanent resident status; crimes for which
a sentence of one year or longer may be imposed. [8 U.S.C.
Section 1227(A)(i)(I)(II).]
b) Two or more crimes involving moral turpitude, regardless
of whether the alien was confined therefore, committed any
time after admission. [8 U.S.C. Section 1227(2)(A)(ii).]
c) Aggravated felony committed at any time. [8 U.S.C.
Section 1227(2)(A)(iii).]
d) High-speed flight. [8 U.S.C. Section 1227(2)(A)(iv).]
e) Failure to register as a sex offender. [8 U.S.C.
Section 1227(2)(A)(v).]
f) Conviction of any violation of controlled substance
laws, other than a single offense involving possession for
one's own use of 30 grams or less of marijuana. [8 U.S.C.
Section 1227(2)(B)(i).]
g) Certain firearms offenses. [8 U.S.C. Section
1227(2)(C).]
h) Domestic violence, stalking, violation of protective
order, crimes against children, including child abuse,
child neglect, and child abandonment. [8 U.S.C. Section
1227(2)(E)(i).]
i) Failure to register and falsification of documents. [8
U.S.C. Section 1227(3).]
j) Security, terrorist activities, and foreign policy
basis. [8 U.S.C. Section 1227(4).]
aa) Voting in violation of any federal, state or local
constitutional provision, statute, or ordinance. [8 U.S.C.
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Section 1227(6)(A).]
12)Defines "crime of violence" under federal law as an offense
that has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another, or any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force
against the person or property of another may be used inn the
course of committing the offense. (18 U.S.C. Section 16.)
13)Punishes any alien who has been denied admission to the U.S.,
excluded, deported or removed, or who has departed the U.S.
while an order of exclusion, deportation or removal is
outstanding, and thereafter enters or attempts to enter the
U.S., or except as specified, is found in the U.S., shall be
fined, imprisoned for two years or both. [8 U.S.C. Section
1326(a).]
14)States that any alien whose removal was subsequent to a
conviction of three or more misdemeanors involving drugs,
crimes against the person, or both, or a felony, other than an
aggravated felony, who has been denied admission to the U.S.,
excluded, deported or removed, or who has departed the U.S.
while an order of exclusion, deportation or removal is
outstanding, and thereafter enters or attempts to enter the
U.S., or except as specified, is found in the U.S., shall be
fined, imprisoned for not more than ten years, or both. [8
U.S.C. Section 1326(b)(1).]
15)States that any alien whose removal was subsequent to a
conviction of an aggravated felony, and who has been denied
admission to the U.S., excluded, deported or removed, or who
has departed the U.S. while an order of exclusion, deportation
or removal is outstanding, and thereafter enters or attempts
to enter the U.S., or except as specified, is found in the
U.S., shall be fined, imprisoned for not more 20 years, or
both. [8 U.S.C. Section 1326(b)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Clearly,
drunken driving offenses continue to create more victims and
destroy more lives. The grim statistics speak for themselves.
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Yet, with overcrowded prisons and the threat of recidivism,
it is time to consider other options to deal with the problem.
Assembly Bill 1275 recognizes our state's responsibilities,
and presents a proactive way for the state to refer offenders
to the appropriate agency and reduce the impact of recidivism
upon our correctional facilities and the people in our
communities."
2)Background : According to information provided by the author,
"Assembly Bill 1275 is a public safety bill that would relieve
California's overcrowded prison facilities by maximizing
existing options for handling those caught driving under the
influence of alcohol or drugs.
"According to the Department of Motor Vehicle's 2009 Annual
Report of the California DUI Management Information System,
'Over 13 years, recidivism rates increased as the number of
prior offenses increased. The proportion of third offenders
reoffending was 40%, while 32% of second offenders and 26% of
first offenders reoffended.'
"Also reported:
a) "Alcohol-involved traffic fatalities for eight years,
have for eight been a rising trend.
b) "Drug-involved fatalities . . . reflect an increase of
almost 200% in the past decade, from 253 in 1997 to 749 in
2007.
c) "DUI arrests increased by 3.4% in 2007, following an
increase of 9.4% in 2006.
d) "The DUI arrest rate rose by 1.6% in 2007.
e) "15.5% of all 2006 DUI arrests were associated with a
reported traffic crash.
f) "Among convicted DUI offenders arrested in 2006, 73.5%
were first offenders and 26.5% were repeat offenders (one
or more prior convictions within the previous 10 years).
g) "The median blood alcohol concentration (BAC) of a
convicted DUI offender, as reported by law enforcement on
Administrative Per Se (APS) forms, was 0.15% in 2006, same
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as last year, yet almost double the California illegal per
se BAC limit of 0.08%.
h) "DUI arrests increased by 3.4% in 2007, following an
increase of 9.4% in 2006, the DUI arrest rate per 100
licensed drivers was 0.9 in 2007, up from 0.8 in 2000-2006.
i) "Many counties showed an increase in DUI arrests in
2007.
j) "Drug-involved fatalities show a noticeable growing
trend in the past decade, increasing by almost 200%, from
253 in 1997 to 749 in 2007.
aa) "11.5% of traffic crash injuries in 2007 were
alcohol-involved.
bb) "The proportion of HBD drivers involved in fatal/injury
crashes under age of 21 increased from 10.3% in 1996 to
12.2% in 2006.
cc) "15.5% of all 2006 DUI arrests were associated with a
reported traffic crash, compared to 15.8% in 2005. 6.3% of
DUI arrests were associated with crashes involving injuries
or fatalities.
"Legislative Counsel explains how the federal government
shoulders some of the burden for tackling crimes involving
controlled substances. 'Existing law requires an arresting
agency to notify the appropriate federal agency if the
arresting agency has reason to believe that a person arrested
for the possession, transportation, sale, or giving away of
specified controlled substances may not be a citizen of the
United States.' Specifically, state law requires the
arresting agency to do this for any of these numerous
violations:
a) "Possession of narcotics.
b) "Sale/intent to sell narcotics.
c) "Sale/intent to sell cocaine based narcotics.
d) "Transport/import/administer controlled substances.
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e) "Solicit/employ/encourage a minor to sell controlled
substances.
f) "Sell/transport/administer a material in lieu of a
controlled substance.
g) "Possession of marijuana.
h) "Possession of marijuana.
i) "Sale of marijuana.
j) "Import/transport of marijuana.
aa) Solicit/employ a minor for transportation of marijuana.
bb) "Plant/cultivate/harvest peyote.
cc) "Opening a place to sell narcotics
dd) "Forging a prescription.
ee) "Under the influence of a controlled substance without a
prescription.
"In an article, criminals should be priority of deportation,
report says , which appeared in the Press-Enterprise on April
3, 2009, the vice chairman of the Congressional Democratic
Caucus, Representative Xavier Becerra, spoke out on
apprehending non-resident criminals. 'No one has said to us
that there aren't sufficient numbers of fugitive immigrants
out there who are dangerous and who we should focus on trying
to find, detain and deport...,' Becerra said in a telephone
interview. 'It appears that those who have demonstrated a
propensity to be dangerous or harmful to the population are
still out there free and loose.' "
2)Immigration Issues Are Committed to the Absolute Discretion of
the U.S. AG : In State of California v. U.S. (9th Cir. 1996)
104 F.3d 1086, California alleged that the U.S. AG failed to
perform his statutory duties under specified sections of Title
8, U.S. Code section 1252(I), by not conducting deportation
proceedings immediately following the conviction of aliens
eligible for deportation and for failing to take into custody
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aliens convicted of aggravated felonies upon their release
from state incarceration pending a determination of
deportability and other related issues.
The 9th Circuit Court of Appeals rejected California's argument,
stating that "agency refusals to institute investigation or
enforcement proceedings fall within the exception to
reviewability provided by 5 U.S.C. Section 701(a)(2) for
action 'committed to agency discretion.' " The Court held
that an agency's decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally
committed to the agency's absolute discretion . . . these
issues are not subject to judicial review." (Id. at p. 1094.)
Similarly, the U.S. Supreme Court has held that "our cases have
long recognized the preeminent role of the Federal Government
with respect to the regulation of aliens within our borders."
[See, e.g., Matthews v. Diaz (1976) 426 U.S. 67.] States may
not impose auxiliary burdens on aliens. [Toll v. Moreno
(1982) 458 U.S. 1.]
In Williams v. Williams (V.I. 1971) 328 F. Supp. 1380, the Court
held that non-compliance with immigration laws was not a
reason to deny the parties the jurisdiction of the civil
courts of the U.S. "To deny an alien access to our divorce
courts on the sole ground that he may be in violation of an
immigration law would be to deny both due process and the
equal protection of the laws. Such a denial would attach a
civil disability to some aliens without the prior benefit of
the procedures designed or the purpose of enforcing the
immigration laws. [See 8 U.S.C. Section 1251 et seq; 8 C.F.R.
pt. 241-44 (1970).] The divorce court is patently an
inappropriate forum in which to attempt to reproduce these
procedures. An exclusion from court on this ground would also
discriminate, without compelling reason to do so, against
persons who violate this particular immigration law, as
distinguished from persons who violate any other law. The
remedy for a violation of 8 U.S.C. Section 1101(a)(15)(H) is
deportation or other administrative sanctions, not withdrawal
of access to our divorce courts." The Williams Court thus
rejected using the state court system to assist federal
immigration authorities with the enforcement of immigration
law, a field fully occupied by the Federal government.
The 9th Circuit Court of Appeals has affirmed that the "power to
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regulate immigration is unquestionably exclusively a federal
power. [T]he U.S. Constitution provides that Congress shall
have the power to . . . establish a uniform Rule of
Naturalization. U.S. Constitution, article I, 8."
[Cazarez-Guiterrez v. Ashcroft (9th Cir. 2004) 382 F. 3d 905.]
The Ninth Circuit has repeatedly recognized that the
immigration laws should be applied uniformly across the
country, without regard to the nuances of state law." (Id. at
p.913.)
This bill is one of several bills in this Committee that have
attempted to use California State law enforcement resources in
the enforcement of federal immigration laws. As stated in a
long line of federal court cases, enforcement of immigration
laws is a matter entirely committed to the U.S. AG. [See,
e.g., Takahashi v. Fish and Game Commission (1948) 334 U.S.
410, 419; California v. U.S. (9th Cir. 1996) 104 F. 3d 1086;
New Jersey v. U.S. (3rd Cir. 1996) 91 F. 3d 463.] Individual
states may not enact laws that impose an auxiliary burden upon
the entrance or residence of aliens that was never
contemplated by Congress.
3)Feasibility of This Bill : In some California jurisdictions,
persons arrested for DUI are not taken to a central jail
facility, but are held at local facilities until they are
deemed sober enough to be released from custody. This bill
requires all DUI arrestees to be taken to a central facility,
where ICE representatives are more likely to be available or
require ICE representatives to travel to the local facilities,
which may be miles away from a centralized jail facility.
These additional burdens are particularly notable in view of
the fact that they are imposed on the basis of an arrest and
the inability to provide documentation of legal presence in
the U.S. There is a lack of nexus between a DUI arrest and an
additional demand for documentation of legal presence in the
U.S.
Moreover, inasmuch as individual states may not enact laws that
impose an auxiliary burden upon the entrance or residence of
aliens that was never contemplated by Congress, detention of a
person arrested for DUI for a longer period of time due to the
inability to provide such documentation would certainly be
found to be auxiliary burden on the residence of aliens that
was never contemplated by Congress. It should be recognized
that the person detained may well be a citizen of the U.S.
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Even if a stop and seizure of the person was initially lawful,
it can become unlawful by becoming unreasonably intrusive or
prolonged. The scope and duration of a seizure must
reasonably relate to the underlying justification for the
seizure. Once that justification expires, the seizure must
end. The scope of the search must be strictly tied to and
justified by the circumstances which rendered its initiation
possible. An officer must confine his or her investigation
strictly to what was minimally necessary to achieve the
justified, proper objective. Even if the stops complied with
the Fourth Amendment, the officers' subsequent activities must
also have met Fourth Amendment requirements; i.e., those
further actions must have reasonably been related to the
purpose - to enforce the state's traffic laws - of the stop.
[Farm Labor Organizing Committee v. Ohio State Highway Patrol
(N.D. Ohio 1997) 991 F. Supp. 895, 902.]
The U.S. Supreme Court has held that an officer must have a
particularized suspicion before he or she stops, detains and
questions a potential illegal alien. In that case, the
officers relied on a single factor to justify stopping the
car: the apparent Mexican ancestry of the occupants. "We
cannot conclude that this furnished reasonable grounds to
believe that the three occupants were aliens." [U.S. v.
Brigoni-Ponce (1975) 422 U.S. 873, 885-87.]
"Citizens are entitled to equal protection of the laws at all
times. If law enforcement adopts a policy, employs a
practice, or in a given situation takes steps to initiate an
investigation of a citizen based solely upon that citizen's
race, without more, then a violation of the Equal Protection
Clause has occurred." [U.S. v. Avery (6th Cir.1997) 137 F. 3d
343.]
Even if an underlying DUI stop was reasonable under the Fourth
Amendment, the officer's subsequent activities must have been
reasonably related to the purpose of enforcing the state's
traffic laws. (Farm Labor Organizing Committee, supra, 991 F.
Supp. 895, 902.) Questioning the driver about his or her
immigration status, demanding that he or she produce legal
documentation and prolonging the detention until officials
from ICE can be summoned and can arrive at the scene, prolong
the period of time the arrested person is detained, and have
no reasonable relationship to the enforcement of the state's
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traffic laws.
The U.S. Supreme Court has issued similar findings. "A lawful
seizure can become unlawful if it is prolonged beyond the time
reasonably required to complete the mission." [Illinois v.
Caballes (2005) 543 U.S. 405; Muehler v. Mena (2005) 544 U.S.
93.] If this bill contemplates the further detention of the
arrested person to accommodate the ICE official's other
workload or travel time to the scene of the detention, a
lawful seizure and detention becomes unlawful if it is
prolonged beyond the time reasonably required to complete the
arrest.
4)Department of Motor Vehicles (DMV) Data : In 2004, the DMV
reports that the total number of DUI arrests was 180,957.
175,311 of these were misdemeanor arrests. 31,538 of these
involved alcohol-related injuries. (California DMV 2006
Annual Report of the California DUI Management Information
System.)
That report also states that "among 2004 DUI arrestees,
Hispanics (44.6%) again constituted the largest racial/ethnic
group, as they have each year since 1992. Hispanics, however,
continued to be arrested at a rate substantially higher than
their estimated percentage of California's adult population
(31.8% in 2004). The ethnic distribution among DUI arrestees
who are convicted fairly closely parallels the ethnic
distribution of the arrestees.
"Blacks were also slightly overrepresented among DUI arrestees
(7.0% of arrests; 6.5% of the population), while other
racial/ethnic groups were underrepresented among DUI
arrestees, relative to their 2004 population parity. These
underrepresented groups were Whites (41.8% of arrests; 47.4%
of the population) and 'Other' (6.6% of arrests; 14.3% of the
population.
"In seven counties, Hispanics comprised 60% or more of those
arrested for DUI during 2003: Tulare (74.5%); Merced (67.0%);
Fresno (65.9%); San Benito (62.7%); Imperial (69.5%); Monterey
(67.7%); and Madera (65.8%). In most other counties, the
majority of the arrestees were white.
"The average age of a DUI arrestee varied considerably by race.
Blacks were the oldest, with a mean age of 35.7 years, while
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Hispanics were the youngest, with a mean age of 31.1 years."
Statewide, the DUI conviction rate was 76.7%; there were 137,126
misdemeanor convictions and only 3,721 felony DUI convictions.
1,155 of the DUI cases were dismissed. DUI conviction rates
varied greatly by county, with Tehama County having a DUI
conviction rate of only 38.2% and Amador County having a
conviction rate of 97.2%.
Why are Hispanics arrested at a rate substantially higher than
their estimated percentage of California's population? Why
are African Americans also overrepresented among DUI
arrestees? With no information provided that either group
drinks more alcohol than the general population, it appears
that these two California's minority groups may be, for some
reason, more highly targeted by law enforcement. A GOOGLE
search disclosed numerous articles from across the country
regarding law enforcement targeting Hispanic neighborhoods for
DUI checkpoints. If this bill passes and law enforcement
officers now have the ability to both arrest a suspected DUI
driver and at the same time be credited with illegal
immigration enforcement, it can reasonably be expected that
the arrest rate for Hispanics may rise dramatically.
5)No State Can Add To or Reduce the Force of Immigration
Regulations Enacted by Congress : Contrary to the author's
statement that this bill will dramatically reduce the number
of unnecessary DUI deaths and injuries in California, it
appears that this bill is, in fact, intended to add to the
force of immigration rules enacted by Congress.
Since the Federal Government has the exclusive power to regulate
immigration, state legislative bodies are unlikely to be
successful in attempts to encroach upon Congressional power.
[See, e.g., De Canas v. Bica (1976) 424 U.S. 351.]
"Over no conceivable subject is the power of Congress more
complete than it is over the admission of aliens. Congress
has exercised its constitutional authority to regulate
immigration by enacting the Immigration and Nationality Act
(INA), 8 U.S.C. Section 1101 et seq. The INA and its
accompanying regulations comprehensively address issues
relating to immigration, including authorized entry, length of
stay, residence status, and deportation. The INA,
furthermore, delegates enforcement duties to the Immigration
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and Naturalization Service (INS). No state can add to or
reduce the force of immigration regulations enacted by
Congress." [Farm Labor Organizing Committee, supra, at p.
902, citing Takahashi v. Fish and Game Commission (1948) 334
U.S. 410, 419.] In light of the preemptive reach of federal
authority over immigration, the states, at least arguably,
have no interest in, and thus no role to play in, the
enforcement of federal laws relating to aliens. (Farm Labor
Organizing Committee, supra, at p. 902.)
Note: The U.S. Citizenship and Immigration Services (USCIS) is
a bureau of the Department of Homeland Security (DHS); the
duties of the INS were transferred to the USCIS by the
National Strategy for Homeland Security and the Homeland
Security Act of 2002.
As stated in this analysis, there are no criteria for an officer
demanding that the arrested person provide appropriate
documentation demonstrating his or her legal presence in the
U.S. It does not appear reasonable to conclude that every DUI
arrest will be accompanied by a demand for documentation of
legal presence in the U.S.
This bill is unclear as to what documents will satisfy the
demand for documentation of legal presence in the U.S. As
pointed out below, there are many different classifications of
immigrants and not all of them are issued "green cards."
There are also visitors, foreign students, people with special
work permits, asylum seekers, and people recently married to a
U.S. citizen and in the application process for a "green
card", etc. According to the Migration Policy Institute
(MPI), by the end of 2007, nearly one million naturalization
cases were pending; many of these cases were delayed due to
the need for a Federal Bureau of Investigation (FBI) name
check, which can take weeks or months as manual reviews of FBI
files are sometimes required. The one million persons with
naturalization cases pending may not have the required
documentation, but are recognized by USCIS; in February 2008,
that agency announced that it would begin granting permanent
residence to certain applicants whose cases were otherwise
complete but had been awaiting FBI clearance for more than six
months. (MPI February 2008.)
This bill is vague with respect to the documentation that will
be accepted and, therefore, subject to unequal interpretation
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and application by law enforcement officers.
In fact, how many U.S. citizens regularly drive with evidence of
legal documentation of the right to be in the U.S.? Such
documentation seemingly would consist of a birth certificate,
a valid social security card, or a U.S. passport. Carrying
one's social security card has recently been discouraged due
to the increasing problems of identity theft; and unless a
citizen is driving to the airport, en route to a foreign
destination, he or she is unlikely to drive around with his or
her passport in the car. Driving with one's birth certificate
in hand is similarly highly unlikely; most citizens, if they
can find their birth certificates at all, keep them securely
filed or in safe deposit boxes. Unless arresting peace
officers intend to require documentation of the right to be in
the U.S. from all persons detained, these factors suggest that
proving one's right to be in the U.S. will be required only of
persons who appear to have been born in other countries,
which, if true, is racial profiling and illegal.
Moreover, according to the Migration Policy Institute (MPI), the
current Social Security card is the least secure of all of the
documents; it is the only document at present that lacks any
type of photograph, does not include a date of birth, and is
not laminated. The Social Security card lacks features to
make it tamper-proof, yet it is one of the major documents
used by employers to verify work eligibility. Other possible
documents include border crossing cards and laser visas; the
I-551 Permanent Resident Card; I-688, Temporary Resident Card;
and driver's licenses issued prior to REAL-ID and those issued
after REAL-ID. According to MPI, the State Department is
currently working with DHS to develop the People's Access
Security Services (PASS) card that will allow for U.S.
citizens without a passport to enter the U.S. from Canada,
Mexico, the Caribbean, and Bermuda through land and sea ports.
What documents would be acceptable under this bill to prove the
right to be in the U.S.? Of the listed documents, U.S.
citizens have only Social Security cards, the least secure of
any of the documents, and driver's licenses potentially in
their possession while driving vehicles. An immigrant driver
may have one of the other listed documents, but it is
questionable if every local law enforcement officer is
sufficiently familiar with the various immigration documents
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to recognize an I-688 or I-688B, an employment authorization
document.
Clearly, the request for documentation of a person's legal right
to be in the U.S. would probably be limited to a person who
appears "foreign" or has less than perfect English language
skills and other matters insufficient to form any reasonable
cause for the request. Local law enforcement officers are not
sufficiently trained in the nuances of federal immigration
law, and would be unable to form a suspicion based upon any of
the numerous provisions of that body of law. Requiring every
person arrested to provide such documentation would be
burdensome, costly, and a waste of the resources of both the
local law enforcement agency and ICE.
Moreover, contacting immigration officials to make a final
determination is a misnomer. The complexity of the federal
immigration laws is one of many reasons there are so many due
process and substantive hearings before immigration judges and
appeals from the decisions of those judges to the Federal
Board of Immigration Appeals, the final body in the
Administrative appeals process. "The Board of Immigration
Appeals is the highest administrative body for interpreting
and applying immigration laws. The Board has nationwide
jurisdiction to hear appeals from certain decisions rendered
by Immigration judges and by district directors of DHS in a
wide variety of cases in which the government of the U.S. is
one party and the other party is an alien, a citizen, or a
business firm. Decisions of the Board are binding on all DHS
officers and Immigration Judges unless modified or overturned
by the Attorney General or a Federal Court. All Board
decisions are subject to judicial review in the Federal
Courts." (See, generally, .)
The person charged as an illegal alien then has the right to
challenge the findings of the administrative appeals body in
federal district court. Thus, even if immigration officials
were called to the scenes of DUI arrests, they would be
offering, at best, a preliminary opinion, not a final
determination.
6)Federal Appeals Court has held that a Conviction for Second
Degree Manslaughter Did Not Constitute a Crime of Violence and
Did Not Subject the Person Convicted to Removal from the U.S. :
In Jobson v. Ashcroft (2nd Cir. 2003) 326 F. 3d 367, the
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plaintiff appealed from an order of deportation for commission
of manslaughter, for recklessly causing the death of his son.
The court stated, "Under 8 U.S.C. 1227(a)(2)(A)(iii), 'any
alien who is convicted of an aggravated felony after admission
is deportable.' An aggravated felony is a term of art defined
in various sections of 8 U.S.C. 1101(a)(43); subsection (F)
thereof defines aggravated felony as 'a crime of violence (as
defined in 18 U.S.C. 16) for which the term of imprisonment
is at least one year. Crime of violence, also a term of art,
is defined in 18 U.S.C. 16 as physical force against the
person or property of another, or (b) any other offense that
is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of
another may be used in the course of committing the offense."
The court further held that "this Court takes a categorical
approach to determining whether an offense is a crime of
violence within the meaning of section 16(b). [See Dalton v.
Ashcroft (2nd Cir. 2001) 257 F. 3d 200, 203.] Under a
categorical approach, we look to the generic elements of the
statutory offense. 'Only the minimal criminal conduct
necessary to sustain a conviction under a given statute is
relevant,' citing Michel v. INS (2nd Cir. 2001) 206 F. 3d 253,
270. We have acknowledged the daunting difficulties of
looking beyond the record of conviction and have concluded
that we cannot go behind the offense as it was charged to
reach our own determination as to whether the underlying facts
amount to one of the enumerated crimes. [Sui v. INS (2nd Cir.
2001) 250 F. 3d 105, 117-118.] We reasoned that under 8
U.S.C. Section 1227(a)(2)(A)(iii), deportability is premised
on the existence of a conviction, not on an inquiry into a
particular defendant's conduct." (Id. at 126, n.10, 116-117.)
In Jobson, the defendant was convicted under a state statute
that required that he "recklessly cause the death of another."
[N.Y.P.L. Section 125.15(1).] "It is clear that the minimum
criminal conduct required to violate N.Y.P.L. Section
125.15(1) does not necessarily present a substantial risk that
physical force against the person of another may be used. The
offense encompasses many situations in which the defendant
applies no physical force to the victim, and more importantly,
situations that do not involve any risk that the defendant
will apply force to the victim." The Jobson Court notes the
many crimes which involve a substantial risk of injury but do
not involve the use of force. Accordingly, this alone would
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justify holding that the statute in question is not
categorically a crime of violence within the meaning of 18
U.S.C. Section 16(b).
"Second, we believe that the unintentional accident caused by
recklessness cannot properly be said to involve a substantial
risk that a defendant will use physical force." The Court
further held that section 16(b) contemplates only intentional
conduct and refers only to those offenses in which there is a
substantial likelihood that the perpetrator will intentionally
employ physical force. (Id. at 373.)
Finally, the Jobson Court held that Jobson's conviction under
the New York manslaughter statute was not a crime of violence
within the meaning of 18 U.S.C. Section 16(b). It is,
therefore, not an aggravated felony under 18 U.S.C. Section
1101(a)(43)(F).
The 9th Circuit has joined other circuits in restricting the
category of crimes of violence under 18 U.S.C. 16 to crimes
requiring specific intent to use force against a person or
property. [Fernandez-Ruiz v. Gonzales (9th Cir. 2006) 466 F.
3d 1121, 1127.] The court cited the "conclusion of the Leocal
Court [Leocal v. Ashcroft, 543 U.S. 1 (2004)] that in no
ordinary or natural sense can it be said that a person risks
having to use physical force against another person in the
course of operating a vehicle while intoxicated and causing
injury strongly indicates that the result in Leocal would have
been the same even had a violation of the statute there at
issue required recklessness rather than mere negligence."
(Fernandez-Ruiz, supra, 466 F.3d 112, p. 1127.)
7)Argument in Support : None submitted
8)Argument in Opposition : According to the Asian Americans for
Civil Rights and Equality , "This bill invites mass racial and
ethnic profiling because state and local law enforcement
officials are not trained or legally competent to determine an
individual's federal immigration status. Instead, law
enforcement officials would be forced to rely on whether
someone looks or sounds 'foreign,' resulting in profiling of
Latinos and other immigrant communities. Although the bill
offers no guidance on how law enforcement officers would
determine an individual driver's immigration status, to the
extent it contemplates police reliance on the FBI's National
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Crime Information Center (NCIC) or related federal databases,
those databases are notoriously inaccurate. Indeed, a 2005
study by the Migration Policy Institute notes an alarming
number of false positive 'hits' when the names and other
identifying information of individuals are entered into these
databases, http://www.migrationpolicy.org/
news/2005_12_08.php. Because the bill applies to individuals who
are merely arrested for an alleged violation, it also invites
local law enforcement to use purported DUI-related traffic
stops and arrests as a pretext for attempting to enforce civil
immigration laws.
"This bill increases costs for local law enforcement agencies by
mandating that they assume the burden of enforcing the
nation's civil immigration laws, stretching already thin
resources that could be better focused on protecting public
safety and enforcing criminal laws. Moreover, immigration
laws are extremely complex and the unavoidable mistakes by
ill-prepared law enforcement officials in determining an
individual's immigration status can be costly, resulting in
lawsuits and protracted litigation, especially if individuals
are wrongly detained because of assumptions about their
immigration status. See e.g. Soto-Torres v. Johnson, CIV
S-99-1695 WBS DAD (E.D. Cal. Filed Aug. 30, 1999) (County and
federal officials paid $100,000 to settle a case after County
probation officer made erroneous determination regarding
plaintiff's deportability which resulted in wrongful arrest
and detention of plaintiff by immigration authorities)."
9)Prior Legislation :
a) AB 1882 (Garrick), of the 2007-08 Legislative Session,
is essentially the same as this bill. AB 1882 failed
passage in this Committee.
b) AB 1082 (Garrick), of the 2007-08 Legislative Session,
would have permitted federal and local law enforcement
officials to cooperate with enforcement of immigration
laws, provided that the Director of Homeland Security
develop a program to reimburse local law enforcement in an
amount equal to the prorated salary of the local officer
for time the officer spent attending training on the
federal Immigration Reform and Immigrant Responsibility Act
of 1996. AB 1082 failed passage in this Committee, was
granted reconsideration, failed passage and returned to the
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Assembly Desk.
c) AB 648 (Adams), of the 2007-08 Legislative Session,
would have created a 10-year sentence enhancement for any
felony conviction of a person who was previously convicted
of a felony in California for which he or she was deported
from the U.S. AB 648 failed passage in this Committee, was
granted reconsideration, failed passage and returned to the
Assembly Desk.
d) AB 39 (Benoit), of the 2007-08 Legislative Session,
would have required the Secretary of the California
Department of Corrections and Rehabilitation to demand in
writing that the U.S. AG take federal custody of any
undocumented inmate incarcerated in California's
correctional system. AB 39 failed passage in this
Committee, was granted reconsideration, failed passage, and
returned to the Assembly Desk.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
American Civil Liberties Union
Asian Americans for Civil Rights and Equality
Coalition for Human Immigrant Rights of Los Angeles
Taxpayers for Improving Public Safety
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744