BILL ANALYSIS
AB 2333
Page 1
Date of Hearing: April 6, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2333 (Emmerson) - As Introduced: February 19, 2010
SUMMARY : Prohibits county probation officers from placing an
individual under his or her supervision, who is believed to be
undocumented, in a residential facility in another county.
Specifically, this bill :
1)Mandates that a county probation officer shall not place a
person subject to his or her supervision, who the officer has
reason to believe may be in the county illegally, in a work
furlough facility, halfway house, rehabilitation facility, or
similar residential facility located in any other county if
the person is subject to probation supervision because of an
offense that occurred in the probation officer's county.
2)Allows placement of a person suspected of being in the county
illegally if he or she is a resident of that county.
3)Provides that if the person is a minor, the aforementioned
does not apply to the placement of the minor in a county if
one of the minor's parents or legal guardians is a resident of
that county.
EXISTING LAW :
1)Provides that probation services are an essential element in
the administration of criminal justice. The safety of the
public, which shall be a primary goal through the enforcement
of court-ordered conditions of probation; the nature of the
offense; the interests of justice, including punishment,
reintegration of the offender into the community, and
enforcement of conditions of probation; the loss to the
victim; and the needs of the defendant shall be the primary
considerations in the granting of probation. (Penal Code
Section 1202.7.)
2)States that persons placed on probation by a court shall be
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under the supervision of the county probation officer who
shall determine both the level and type of supervision
consistent with the court ordered conditions of probation.
[Penal Code Section 1202.8(a).]
3)Mandates that if a person is convicted of a felony and is
eligible for probation, before judgment is pronounced, the
court shall immediately refer the matter to a probation
officer to investigate and report to the court, at a specified
time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be
considered either in aggravation or mitigation of the
punishment. [Penal Code Section 1203(b)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author of this bill,
"Sanctuary cities are municipalities that do not use its
resources or funds to assist federal authorities with
immigration laws. In California, a few cities have adopted
varying sanctuary city polices that protect suspected illegal
immigrants from being reported to the Immigration and Customs
Enforcement (ICE) agency. This bill would prohibit these
sanctuary cities, whose policies are in direct violation of
federal law, from releasing suspected illegal immigrants who
have committed a crime to other counties.
"San Francisco has a sanctuary city policy that extends to
suspected illegal immigrants who are accused of committing
serious crimes. At one time, San Francisco's juvenile
probation officials were flying illegal juvenile offenders
back to their homeland, rather then sending them to federal
authorities where they would face deportation and be banned
from ever coming back to the United States. After federal
authorities learned of these flights, San Francisco
discontinued this practice and instead sent these illegal
youth offenders to group homes in different counties
throughout the state.
"In 2008, San Francisco sent eight young Honduran crack dealers
to an unlocked group home in San Bernardino County. Within
days, all eight illegal offenders escaped from the group home,
causing a public safety hazard in San Bernardino. The
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previous year, San Francisco sent four illegal offenders to
the same group home, where they also escaped shortly after
their arrival. As of late 2008, many of these offenders were
still at large.
"AB 2333 is a measure that would protect counties throughout
California by not allowing sanctuary cities to place suspected
illegal immigrant offenders in group homes or other similar
residential facilities outside of its jurisdiction. This bill
will also ensure that law enforcement doesn't have to expend
its valuable resources on illegal offenders that were arrested
outside of their county."
2)Federal Preemption : Case law has recognized the preeminent
role of the Federal Government with respect to the regulation
of aliens within our borders. [See, e.g., Mathews v. Diaz
(1976) 426 U.S. 67; Graham v. Richardson (1971) 403 U.S. 365,
377-380; Takahashi v. Fish & Game Comm'n (1948) 334 U.S. 410,
418-420 (1948); Hines v. Davidowitz (1948) 312 U.S. 52, 62-68;
Truax v. Raich (1915) 239 U.S. 33, 42.] Federal authority to
regulate the status of aliens derives from various sources,
including the Federal Government's power "[to] establish [a]
uniform Rule of Naturalization" (U.S. Const., Art. I, 8, cl.
4), its power "[to] regulate Commerce with foreign Nations"
(Id., cl. 3), and its broad authority over foreign affairs.
[See United States v. Curtiss-Wright Export Corp. (1936) 299
U.S. 304, 318; Mathews v. Diaz, supra, at 81, n. 17;
Harisiades v. Shaughnessy (1952) 342 U.S. 580, 588-589.]
"The Federal Government has broad constitutional powers in
determining what aliens shall be admitted to the United
States, the period they may remain, regulation of their
conduct before naturalization, and the terms and conditions of
their naturalization. Under the Constitution the states are
granted no such powers; they can neither add to nor take from
the conditions lawfully imposed by Congress upon admission,
naturalization and residence of aliens in the United States or
the several states. State laws which impose discriminatory
burdens upon the entrance or residence of aliens lawfully
within the United States conflict with this constitutionally
derived federal power to regulate immigration, and have
accordingly been held invalid." [Takahashi v. Fish & Game
Comm'n, supra, 334 U.S. at 419.]
Despite the fact that the power to regulate immigration is
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exclusively federal, the fact that a state statute simply
pertains to aliens does not render it, per se, preempted by
federal immigration law. [De Canas v. Bica (1976) 424 U.S.
351, 354-356.] In De Canas, the United States Supreme Court
held that a state statute related to immigration is preempted
by federal law if it is a regulation of immigration, which is
essentially a "determination of who should or should not be
admitted into the country . . . " or if it attempts to
regulate a subject matter with respect to which Congress has
intended to completely oust state power. (Id. at 355-357.)
This bill does not encroach upon the exclusivity of federal
immigration law. As case law indicates, the exclusive
province of the Federal Government to regulate and enforce
federal immigration laws lies within the determination of who
should or should not be admitted into the United States. This
bill does not regulate admission or deportation persons into
the United States; this bill simply prohibits county probation
officers from placing an individual under his or her
supervision who is believed to be undocumented in a
residential facility in another county.
Although, this bill does not encroach upon federal exclusivity
of federal immigration law, with regards to admission or
deportation, states are not encouraged to supply the INS with
information regarding undocumented persons unless specifically
asked to do so. This issue is discussed below.
3)Probation Officers Working as "Immigration Watchdogs" : This
bill increases the burden already incurred by overworked
probation departments by mandating that they prevent suspected
undocumented immigrants from obtaining treatment outside of
their jurisdiction. With the increasing number of felons not
committed to state prison due to overcrowding and the
limitations imposed on commitments made to the Division of
Juvenile Justice (DJJ), all probation officers are faced with
increasing caseloads. Probation officers play a vital role in
the criminal justice process by assisting in the
rehabilitation and reintegration of probationers. This bill
hampers that goal by preventing suspected undocumented
immigrants from receiving the treatment they need.
Moreover, immigration laws are extremely complex and the
unavoidable mistakes made by ill-prepared law enforcement
officials in determining an individual's immigration status
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can be costly, resulting in lawsuits and protracted
litigation, especially if an individual is wrongly detained
because of assumptions about his or her immigration status.
[See, e.g., Soto-Torres v. Johnson (E.D. Cal filed August 30,
1999) CIV S-99-1695 WBS/DAD (County and federal officials paid
$100,000 to settle the case after the county probation officer
made an erroneous determination regarding plaintiff's
deportability which resulted in wrongful arrest and detention
of plaintiff by immigration authorities.).] Litigation is
also ongoing in the U.S. District Court for the Central
District of California in Guzman v. Chertoff (C.D. Cal., filed
Feb. 27, 2008) No. 2:08-cv-01327-GHK-SS, a case brought
against Los Angeles County Sheriff's employees and federal
immigration agents by a U.S. citizen, Pedro Guzman, who was
deported upon the advice of a county employee. Mr. Guzman,
who is developmentally disabled, was lost in Mexico for three
months following the improper deportation and is suing local
and federal authorities for damages. Thus, this bill subjects
counties to costly lawsuits by forcing probation officers to
make judgment outside their expertise, which inevitably leads
to erroneous referrals to federal immigration authorities.
Lastly, the general policy of Immigration and Naturalization
Service (INS) with regard to states supplying information
about suspected undocumented aliens seems to discourage the
states from asking for that information when the INS does not
specifically request such information. In Doe v. Miller (N.D.
Ill. 1983) 573 F. Supp. 461, the court invalidated a state
policy of demanding information about residency status from
undocumented aliens. INS asked for the information only when
an applicant could not document his or her residency status
for a federal food-stamp program. (Id. at 463.) The
legislative history of the statute which required the names of
suspected undocumented aliens explicitly stated that INS did
not want the state workers acting as "outreach officers of
INS." (Id. at 466.) State case workers were informed that:
[T]he Committee expects the Secretary and the State
agencies to exercise special care to prevent potential
human abuse flowing from this reporting requirement.
Effective and efficient administration of this reporting
requirement demands the utmost in caution and concern for
human rights as well as sensitivity to the serious harm
caused by subconscious as well as conscious prejudice and
discrimination. (Ibid.)
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Hence, the instruction given by Congress stands as a clear
statement that the INS does not want the state acting as an
"immigration watchdog" for INS. Congress recognized that if
the states had free license to report suspected undocumented
aliens, any person could fall under a state worker's
unwarranted scrutiny.
4)Suspected Undocumented Persons : The Constitution requires
that "[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law." [U.S. Const. 5th
Amend. (emphasis added).] The Constitution also provides,
"nor shall any State. . . Deny to any Person within its
jurisdiction the equal protection of the laws." [Id. 14th
Amend., 1 (emphasis added).] It seems significant that
"person" rather than "citizen" is the beneficiary of these
protections, adding weight to the contention that a
non-citizen is entitled to equal protection. "[T]he Due
Process Clause applies to all 'persons' within the United
States, including non-citizens, whether their presence here is
lawful, unlawful, temporary, or permanent." [Zadvydas v.
Davis (2001) 533 U.S. 678, 693; see also Landon v. Plasencia
(1982) 459 U.S. 21, 32-33 (noting that permanent resident
aliens are entitled to a high degree of due process,
approaching that accorded to citizens); cf. Rest.3d, Foreign
Relations Law, 701 (1986) ("A state is obligated to respect
the human rights of persons subject to its jurisdiction"); Id.
722 ("An alien in the United States is entitled to the
guarantees of the United States Constitution other than those
expressly reserved for citizens.").]
A statutory classification that does not burden a suspect class
or infringe upon the exercise of a fundamental right must be
upheld against equal protection challenge "if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification." [Federal
Communications Commission v. Beach Communications, Inc. (1993)
508 U.S. 307.] Strict scrutiny applies where the
classification burdens a suspect class or fundamental right.
[Ibid.; City of Cleburne, Texas v. Cleburne Living Center Inc.
(1985) 473 U.S. 432).]
Undocumented or "illegal" aliens are not a suspect class in an
equal protection analysis. [Plyler v. Doe (1982) 457 U.S.
202, 219 n.19.] The Supreme Court has observed that "entry
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into this class, by virtue of entry into this country, is the
product of voluntary action. Indeed, entry into the class is
itself a crime." (Ibid.) The Court also expressed the view
that "those who elect to enter our territory by stealth and in
violation of our law should be prepared to bear the
consequences, including, but not limited to, deportation."
(Id. at 220.) Thus, the government's different treatment of
aliens will "be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could
provide a rational basis for the classification." [FCC v.
Beach Communications, Inc. (1993) 508 U.S. 307, 313.]
In Lizarrago-Lopez v. U.S. (D. Cal.2000) 89 F.Supp. 2d 1166,
1170, non-citizen inmates were not permitted to take part in
home or community confinement programs. The court concluded
that, under an equal protection analysis, legitimate policy
interests provided adequate grounds to uphold differential
treatment. That court reasoned, "The United States has no
policy interest whatsoever in facilitating the re-introduction
of non-citizen convicts into foreign communities." [Id. at
1170 (emphasis added).] Lizarraga-Lopez's status is not
"likely to cause a fortuitous increase in the severity of his
sentence." (Ibid.) Other courts have held generally that the
denial of placement in a halfway house or home detention does
not significantly enhance the severity of a defendant's
sentence. [Palafox-Barajas (S.D. Cal., Dec. 8, 1999) 1999 WL
1338451, at *2.]
This bill is dissimilar from Lizarrago in that this bill
prohibits probation officers from placing suspected
undocumented probationers in a residential treatment facility
in a county outside the officer's county of jurisdiction.
Thus, no actual, legal determination of a person's status is
made.
Instead, this bill invites mass racial profiling as probation
officers are not trained or legally competent to determine an
individual's federal immigration status. Instead, probation
officers would be forced to rely on whether a person looks or
sounds "foreign." This bill is silent as to how a
determination will be made into whether or not a defendant is
within the United States illegally. State officials will be
compelled to rely on discriminatory characteristics suggesting
that an individual is foreign, i.e., name, accent, language
ability, or physical attributes.
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Population projections also show a growing Hispanic population
in this country. The Bureau of the Census estimates that by
2050 Hispanics will constitute nearly 25% of the U.S.
population. [See U.S. Dep't of Commerce, Current Population
Reports: Population Projections of the United States by Age,
Sex, Race, and Hispanic Origin: 1995 to 2050 (1996) at 13
tbl.J.] Each year, hundreds of thousands of persons of Latin
American ancestry are lawfully admitted to this country. In
fiscal year 1997 alone, the United States admitted over
146,000 lawful permanent residents from Mexico. (See 1997 INS
Statistical Yearbook, supra note 169, at 21 tbl.C.) Over
640,000 Mexican immigrants in 1971-80, about 1.7 million in
1981-90, and over 1.8 million in 1991-97 lawfully immigrated
to the United States. (See Id. at 26 tbl.2.) In fiscal years
1988-97, nearly 600,000 Mexican immigrants naturalized and
became U.S. citizens. (See Id. at 148 tbl.47.)
In California, the southern border is one of the focal points of
U.S. immigration enforcement Hispanics comprised over
one-quarter of the state's population in 1990. [See Stiles et
al., California Latino Demographic Databook (1998) 2-5
tbl.2.1.] Hispanics constitute a large percentage, sometimes
even a majority, of the population in many localities on or
near California's Mexican border. (See Id. at 2-32, 2-34.)
For example, in Imperial County, Hispanics constitute over 70%
of the population. [See U.S. Dep't of Commerce, Population
Estimates for Counties by Race and Hispanic Origin: July 1,
1999 (1999).]
Given the millions of Latinos residing lawfully in the United
States, "Hispanic appearance" holds little probative value in
determining whether a person lacks proper immigration
documentation. In Equal Protection terms, the classification
is over-inclusive with respect to the ostensible goal of
identifying undocumented persons. Like the proverbial
"dragnet," this bill punishes "the innocent bystander, the
hapless victim of circumstance or association . . . . Such
classifications fly squarely in the face of our traditional
antipathy to assertions of mass guilt and guilt by
association." [Thompson, Stopping the Usual Suspects: Race
and the Fourth Amendment (1999) 74 N.Y.U. L. Rev. 956, 957.]
This bill encourages arbitrary and unreasonable enforcement.
Under the Equal Protection doctrine, the Supreme Court has
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held that racial classifications are constitutionally suspect
and subject to strict scrutiny. [City of Richmond v. J.A.
Croson Co. (1989) 488 U.S. 469.] This bill treads in murky
constitutional water.
5)Common Misconception: Immigrants Commit More Crime : In
February 2008, the Public Policy Institute of California
(PPIC) released a study, "Crime, Corrections, and California:
What Does Immigration Have to Do with It?" PPIC is a private,
non-profit organization dedicated to informing and improving
public policy in California through independent, objective,
non-partisan research.
The study was statistically based and examined the present
institutional population in California. The study found that
immigrants are far less likely than the average United States
native to commit crime in California. For example, among men
ages 18 to 40 (the age group most likely to commit crime),
United States-born inmates are 10 times more likely than the
foreign-born inmates to be in jail or prison. Even among
non-citizen men from Mexico ages 18 to 40 (a group
disproportionately likely to have entered the United States
illegally), the authors find very low rates of
institutionalization. Such findings suggest that longstanding
fears of immigration as a threat to public safety are
unjustified. The entire study can be found at
http://www.ppic.org/content/pubs/cacounts/CC_208KBCC.pdf.
6)Argument in Support : According to the San Bernardino County
Sheriff's Department , "San Francisco has a sanctuary city
policy that extends to suspected illegal immigrants who are
accused of committing serious crimes. In June 2008[,] San
Francisco sent eight juvenile Honduran crack dealers to an
unlocked group home in San Bernardino County (Yucaipa) without
notification. Within days, all eight illegal offenders
escaped from the group home, causing a public safety hazard in
San Bernardino County.
"AB 2333 will also ensure that law enforcement doesn't have to
expend its valuable resources on illegal offenders that were
arrested outside of their county."
7)Argument in Opposition : According to the Asian Americans for
Civil Rights and Equality , "AB 2333 requires that probation
officers expend their limited resources investigating the
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immigration status of individuals, thus diverting probation
officers from carrying out their core duties of developing and
monitoring probation plans for individuals under their
supervision to ensure their rehabilitation and community
safety. The added responsibility from this ill-conceived
policy will undoubtedly hamper the efficiency of probation
departments throughout California and exhaust already limited
local funds for federal immigration related purposes. In
addition, individuals will be fearful of cooperating with
probation officers to develop and follow rehabilitation plans
if probation officers become de facto immigration officers,
thereby jeopardizing public safety.
"AB 2333 also is particularly problematic because it requires
probation officers to make judgments regarding an individual's
immigration status when probation officers are ill-equipped to
do so. The International Association of Chiefs of Police
(IACP), the leading law enforcement association in the United
States, notes that '[i]mmigration law is very detailed and
complex . . . with one's immigration status not always being
easily ascertained' and therefore, '[s]pecialized training is
required to equip state and local officers with the basic
ability to determine whether persons they have encountered are
legal or illegal immigrants.' (John Firman, IACP, Police
Chiefs Guide to Immigration Issues 43-44 (Aug. 3, 2007),
available at
http://www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefs
Guideto Immigration.pdf.) Accurately determining an
individuals immigration status, especially that of a minor's,
is a difficult task requiring training and experience in
immigration law.
"In addition, because the cost and time required for adequate
training is likely probative, probation officers will
inevitably make mistakes regarding determination of
immigration status and thereby subject counties to liability
through erroneous referrals. As the IACP notes, '[e]ffective
training will likely be lengthy, requiring an extraordinary
commitment of agency resources. Failure to train effectively
carries significant ramifications, risks and liability.' (Id.
at 14.) If AB 2333 were passed, it would open the door for
untrained probation officers to infringe on the constitutional
rights of individuals lawfully present in the county thereby
subjecting local and state agencies to costly lawsuits. [See
Soto-Torres v. Johnson, CIV S-99-1695 WBS/DAD (E.D. Cal. filed
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Aug. 30, 1999) (County and federal officials paid $100,000 to
settle the case after the County probation officer made an
erroneous determination regarding plaintiff's deportability
which resulted in wrongful arrest and detention of plaintiff
by immigration authorities.)] Litigation is also ongoing in
the U.S. District Court for the Central District of California
in Guzman v. Chertoff, Case No. CV-08-01327, a case brought
against Los Angeles County Sheriff's employees and federal
immigration agents by a U.S. citizen who was deported upon the
advice of a County employee. Mr. Guzman, who is
developmentally disabled, was lost in Mexico for three months
following the improper deportation and is suing local and
federal authorities for damages. AB 2333 subjects counties to
costly lawsuits by forcing probation officers to make judgment
outside their expertise, which inevitably leads to erroneous
referrals to federal immigration authorities.
"Finally, AB 2333 seeks to institute restrictions on probation
officers over a matter which they may have little or no
control. Specifically, it requires that no individual who is
believed to be unlawfully present be placed in a residential
facility in another county. Due to increasingly tight
budgets, many counties may not have the resources or capacity
to house individuals within their county, but rather must
place the individuals in other counties. This practice is not
uncommon in a state with increasingly limited resources.
Governor Schwarzenegger, for example, under emergency
proclamation due to the prison overcrowding crisis, has
subjected some California prison inmates to involuntary out of
state transfers to serve the remainder of their sentences in
other states. In addition, while probation officers may make
recommendations regarding placement of individuals in
residential facilities, in most cases, the court ultimately
makes the decision regarding placement based on availability
and suitability of the placement. As a result, AB 2333 places
a heavy burden on probation officers that they cannot meet."
8)Prior Legislation :
a) AB 1081 (Garrick), of the 2007-08 Legislative Session,
would required the Secretary of California Department of
Corrections and Rehabilitation (CDCR) to enter into an
agreement with the United States Department of Homeland
Security for ICE to train and authorize certain CDCR
personnel to perform functions relating to the
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investigation and processing of inmates who are illegally
within the United States. AB 1081 failed passage in this
Committee.
b) AB 1882 (Garrick), of the 2007-08 Legislative Session,
would have required an arresting agency to report to ICE if
the arresting agency has reason to believe a person
arrested for driving under the influence of alcohol or
drugs is an illegal alien. AB 1882 failed passage in this
Committee.
c) AB 2141 (Tran), of the 2007-08 Legislative Session,
would have required CDCR to verify the immigration status
of any new prisoner under CDCR's custody. AB 2141 also
demanded that correctional officers to cooperate with ICE
in the verification and any deportation process for these
prisoners, and would provide that correctional officers
shall be trained in cooperation with ICE to conform with
laws and regulations pertaining to immigration and customs.
AB 2141 failed passage in this Committee.
d) AB 2418 (Huff), of the 2007-08 Legislative Session,
would have prohibited persons charged with specified
violent or gang-related felonies to be eligible for bail or
released on his or her own recognizance pending trial, if
at the time of the alleged offense, he or she was illegally
within the United States. AB 2418 failed passage in this
Committee.
e) AB 2420 (Huff), of the 2007-08 Legislative Session,
would have prohibited law enforcement or any local
governing body from adopting an ordinance or rule, or
otherwise implement a policy, that prohibits law
enforcement officers from initiating action to discover a
person's alien status or that prohibits a law enforcement
officer from arresting or booking a person for entering the
United States illegally. AB 2420 failed passage in this
Committee.
f) AB 2422 (Huff), of the 2007-08 Legislative Session,
required CDCR to implement and maintain procedures to
identify inmates serving terms in state prison or wards of
the Division of Juvenile Facilities who are undocumented
aliens subject to deportation. The CDCR shall refer to ICE
the name and location of any inmate or ward who has
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committed a violent felony or a gang-related felony, and
who may be an undocumented alien and who may be subject to
deportation. AB 2422 failed passage in this Committee.
g) AB 332 (Bogh), of the 2005-06 Legislative Session, would
have provided that it would be the policy of California
that no law enforcement entity or any local governing body
may adopt any ordinance, rule, regulation or order, or
otherwise implement a policy that prohibits law enforcement
officers from initiating action to discover a person's
immigration status, or that prohibits a law enforcement
officer from arresting or booking a person for entering the
United States illegally. AB 332 failed passage in this
Committee.
h) SB 1314 (Johannessen), Chapter 567, Statutes of 1994,
required state correctional agencies, within 48 hours of
establishing identifying information, to transfer
undocumented felons to the custody of the Attorney General
of the United States and required that evaluation and
classification procedures cease once identity as
undocumented felons has been established. This law was
contingent upon enactment of federal legislation requiring
the United States government to imprison any undocumented
alien convicted of a felony in California in the federal
prison system.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Californians for Population Stabilization
Peace Officers Research Association of California
San Bernardino County Sheriff's Department
Opposition
American Civil Liberties Union
Asian Americans for Civil Rights and Equality
California Immigrant Policy Center
California Public Defenders Association
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
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