BILL ANALYSIS �
AB 1081
Page 1
Date of Hearing: May 18, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1081 (Ammiano) - As Amended: May 15, 2011
Policy Committee: Public
SafetyVote: 5-2
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill requires the California Department of Justice (DOJ) to
modify the Secure Communities program (S-Comm) memorandum of
agreement (MOA) with the U.S. Department of Homeland Security to
allow counties to participate in S-Comm only upon written
request to the Immigration and Customs Enforcement (ICE) by the
county board of supervisors.
Specifically, the modified MOA:
1)Requires a county that opts to participate in S-Comm to
prepare a plan to monitor and guard against (a) racial
profiling, (b) discouraging domestic violence victims from
reporting crimes, and (c) harming community policing efforts.
2)Shall include the following S-Comm limitations:
a) Protections for domestic violence victims.
b) Protections for juveniles.
c) Only fingerprints of those convicted of a crime may be
shared with ICE.
3)Prohibits obtaining fingerprints for S-Comm by checkpoints,
and stopping persons solely on the basis of perceived
immigration status.
4)Requires ICE to establish a complaint mechanism to allow for
expedited review of claims by persons undergoing immigration
removal proceedings as a result of S-Comm actions prior to a
conviction.
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5)Requires ICE to report via web site specified quarterly
statistics on S-Comm in California.
This bill also requires DOJ to exercise its authority to
terminate the MOA if these requirements are not fulfilled.
FISCAL EFFECT
Minor one-time and ongoing GF costs to DOJ to renegotiate the
MOA with Homeland Security and to work as an intermediary with
Homeland Security for counties who opt out of S-Comm, to the
extent DOJ serves as a conduit for criminal information.
The terms of this bill, however, do not require DOJ to alter the
substance of criminal information currently provided to the
federal government, nor the form in which the information is
delivered.
COMMENTS
1)Rationale . The author contends that because S-Comm has (a)
strayed from its stated goal of targeting serious offenses by
undocumented persons, (b) significantly damaged relationships
between law enforcement and immigrant communities, (c)
encouraged victims to stay silent, (d) increased racial
profiling, and (d) ignored due process protections, local
governments should be offered the chance to opt in to the
program.
2)S-Comm , developed by the Department of Homeland Security and
ICE in March 2008, requires participating local law
enforcement agencies to submit arrestees' fingerprints to ICE
and FBI databases, the U.S. Visitor and Immigrant Status
Indicator Technology Program (US-VISIT), and Automated
Biometric Identification System (IDENT), and allows these
federal agencies to access the arrestee's documented criminal
and immigration history. According to ICE background
materials, S-Comm is intended to target dangerous criminals
and those who pose threats to public safety, based on the
following priority classifications:
Level 1 - convictions for major drug offenses and violent
crimes.
Level 2 - convictions for minor drug and property offense.
Level 3 - convictions for other, less serious offenses.
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On April 10, 2009, California's Department of Justice entered
into a MOA with ICE to implement S-Comm in California
counties.
3)The author and proponents (a lengthy list of human and civil
rights organizations, local governments, labor), contend
S-Comm needs revamping.
According to the author, "S-Comm is an extremely problematic
program that enlists local law enforcement to engage in civil
immigration enforcement through the sharing of biometric data
at the point of arrest. The program automatically leads to
investigation of the immigration background of every
individual, citizen or non-citizen, at the point of arrest by
electronically crosschecking fingerprints through an
immigration database allowing ICE officials to detain and
deport undocumented individuals - without the basic right to a
day in court.
"While the United States' ICE stated mission for the
controversial S-Comm program is to target serious offenses,
the program casts far too wide a net. ICE's own data shows
over 70% of people deported under S-Comm had no convictions or
were accused only of minor offenses. Unfortunately, this
program is unfairly impacting innocent people, victims of
crime, and even survivors of domestic violence who have called
the police for help.
"This program is eroding trust between immigrant communities
and local law enforcement because immigrant residents who are
victims or witnesses to a crime now fear cooperating with
police since any contact can now result in separation from
their families and deportation. As a result, years of
community policing initiatives are ruined as entire
communities lose trust in law enforcement and stop reporting
crimes or seeking help. S-Comm makes us all less safe and
sends the state in the wrong direction. The program is
exactly what ICE said it is not supposed to be, a simple tool
for mass, indiscriminate non-criminal immigration enforcement.
"Forcing this problematic program on localities against their
will creates an undue burden and jeopardizes local community
policing strategies. This bill enables municipalities
concerned with the inherent problems of S-Comm to choose not
to participate while those who opt-in will have the option to
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do so with safeguards to protect our communities from the
program's pitfalls. This bill adds safeguards to protect
Californians and prevent civil rights violations. If
localities want to participate, this bill will require a plan
to prevent racial profiling and keep children, crime victims,
or survivors of domestic violence from being wrongfully
targeted."
4)ICE statistics support the author's contention S-Comm is
acting beyond its stated purpose , deporting undocumented
persons convicted of violent crimes. Recent national
statistics provided by ICE reveal that about one-third of all
undocumented immigrants who have been detained and/or deported
as a result of S-Comm fall into this prioritized category. The
remaining two-thirds are undocumented immigrants who have been
convicted of minor offenses or who have never been convicted
of a criminal offense.
From October 2008 to February 2011, California deported 35,643
undocumented immigrants using S-Comm. This is the highest of
all the states participating in S-Comm. Of the 35,643
deportations, 27% were non-criminals, which included domestic
abuse survivors and people who committed minor traffic
offenses. The statistics show that 41% of the deportations are
classified as ICE low-level offenders including misdemeanors.
(U.S. Immigration and Customs Enforcement, Secure Communities
IDENT/IAFIS Interoperability Monthly Statistics October 27,
2008 through Feb. 28, 2011.)
5)The fundamental question: Does the MOA trump?
DOJ currently provides the feds, through the FBI, fingerprints
for arrests as well as convictions. The FBI is free to share
those prints with ICE. Proponents of this bill, however, are
convinced ICE needs the MOA with the state in order to use
that criminal information for S-Comm purposes. If that is true
- and this issue is being debated in other states and at the
federal level - this bill would give counties the authority to
opt out of the S-Comm arrangement, making it decidedly more
difficult to use arrest data for deportation purposes.
ICE, however, contends it is free to use this information for
S-Comm purposes regardless of the MOA, which would mitigate
the potential impact of this bill considerably.
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6)Opposition . According to Californians for Population
Stabilization, "The Secure Communities program is one of our
most effective tools for removing criminals and making our
neighborhoods safer. Under this program, tens of thousands of
foreign criminals in California have been transferred to ICE,
removed from our environs, and deported from our country."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081