BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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0
8
AB 1081 (Ammiano) 1
As Amended May 14, 2012
Hearing date: June 12, 2012
Government Code
SM:mc
IMMIGRATION DETAINER REQUESTS
HISTORY
Source: Asian Law Caucus; National Day Laborer Organizing
Network; California Immigrant Policy Center
Prior Legislation: None
Support: African Advocacy Network; American Civil Liberties
Union; American Federation of State, County and
Municipal Employees; California Catholic Conference;
California Labor Federation; California Partnership to
End Domestic Violence; California Public Defenders
Association; City of Petaluma Vice-Mayor; Dolores
Street Community Services; Silicon Valley Alliance for
Immigrant Reform; Silicon Valley Community Foundation;
County of Santa Clara Board of Supervisors; Equality
California; Nicaragua Center for Community Action;
Orange County Community Housing Corporation; Peninsula
Interfaith Action; National Association of Social
Workers, California Chapter; Friends Committee on
Legislation of California; California Attorneys for
Criminal Justice; Legal Services for Prisoners with
Children; Greater Long Beach ICO; Unitarian
Universalist Legislative Ministry Action Network, CA;
Nuestra Casa; National Network for Immigrant and
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Refugee Rights; PODER; Oakland Catholic Worker; City of
Chico; Diocese of San Bernardino; Los Amigos of Orange
County; Coalition for Humane Immigrant Rights of Los
Angeles; Council on American-Islamic Relations
California; UNITEHERE Local 2850; Immigrant Legal
Resource Center; Filipino Advocates for Justice;
Services, Immigrant Rights and Education Network; LA
Voice; Placer People of Faith Together; Monterey County
Immigration Coalition; La Raza Centro Legal; 3rd and
4th District Santa Barbara County Board of Supervisors;
Immigration Center for Women and Children; San
Francisco Organizing Project; Communities for a New
California Education Fund; Central Valley Partnership
for Citizenship; Community United Against Violence;
City of Richmond; Chinese for Affirmative Action; Dream
Team Los Angeles; City of Santa Barbara; Unitarian
Universalist Refugee and Immigrant Services and
Education; National Immigration Law Center; Arab
Resource and Organizing Center; Orange County May Day
Coalition; Community Legal Services in East Palo Alto;
PICO California; Mexican American Legal Defense and
Educational Fund; Day Worker Center of Mountain View;
Canal Alliance; Street level Health Project; City of
Palo Alto Police Department; International Institute of
the Bay Area; Asian Law Alliance; San Francisco La Raza
Lawyers Association; American Friends Service
Committee; PUEBLO; 5th District, Board of Supervisors
of Sonoma County; Asian Americans for Civil Rights and
Equality; Pomona Economic Opportunity Center;
California Hawaii State Conference of the NAACP
Opposition:None known
Assembly Floor Vote: Not relevant, as this is entirely new
language
KEY ISSUES
SHOULD LAW ENFORCEMENT OFFICERS BE AUTHORIZED TO DETAIN INDIVIDUALS
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ON THE BASIS OF IMMIGRATION DETAINERS ONLY WHEN THAT PERSON HAS BEEN
CONVICTED OF A SERIOUS OR VIOLENT FELONY AND WHEN THAT DETENTION
WOULD NOT VIOLATE ANY FEDERAL, STATE, OR LOCAL LAW, OR ANY LOCAL
POLICY?
SHOULD LOCAL GOVERNMENTS WHERE SUCH DETENTIONS TAKE PLACE BE
REQUIRED TO ADOPT A PLAN TO GUARD AGAINST DEPORTING U.S. CITIZENS,
RACIAL PROFILING AND CRIME VICTIMS AND WITNESSES BEING DISCOURAGED
FROM REPORTING CRIMES?
PURPOSE
The purpose of this bill is to (1) make uncodified legislative
findings and declarations;
(2) provide that a law enforcement officer may not detain an
individual on the basis of an immigration hold after that
individual becomes eligible for release from criminal custody,
as specified, unless the individual has been convicted of a
serious or violent felony, and the continued detention of the
individual on the basis of the immigration hold would not
violate any federal, state, or local law, or any local policy;
and (3) provide further that the legislative body of the local
agency of the jurisdiction that the individual is being detained
in shall, prior to or after complying with an immigration hold,
adopt a plan that monitors and guards against a United States
citizen being detained pursuant to an immigration hold, racial
profiling and victims and witnesses to crime being discouraged
from reporting crimes.
Existing federal law provides that any authorized immigration
officer may at any time issue a Form I-247, Immigration
Detainer-Notice of Action, to any other federal, state, or local
law enforcement agency. A detainer serves to advise another law
enforcement agency that the Department of Homeland Security
(DHS) seeks custody of an alien presently in the custody of that
agency, for the purpose of arresting and removing the alien.
The detainer is a request that such agency advise the DHS, prior
to release of the alien, in order for the DHS to arrange to
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assume custody, in situations when gaining immediate physical
custody is either impracticable or impossible. (8 Code of
Federal Regulations � 287.7(a).)
Existing federal law states that upon a determination by the DHS
to issue a detainer for an alien not otherwise detained by a
criminal justice agency, such agency shall maintain custody of
the alien for a period not to exceed 48 hours, excluding
Saturdays, Sundays, and holidays in order to permit assumption
of custody by the DHS. (8 Code of Federal Regulations �
287.7(d).)
Existing federal law authorizes the Secretary of Homeland
Security under the 287(g) program to enter into agreements that
delegate immigration powers to local police. The negotiated
agreements between ICE and the local police are documented in
MOAs. (8 U.S.C. � 1357(g).)
Existing law provides that all protections, rights, and remedies
available under state law, except any reinstatement remedy
prohibited by federal law, are available to all individuals
regardless of immigration status who have applied for
employment, or who are or who have been employed, within the
state, and further provides that, for purposes of enforcing
specified state laws, a person's immigration status is
irrelevant to the issue of liability, and prohibits in
proceedings for discovery immigration status except where the
person seeking to make the inquiry has shown by clear and
convincing evidence that the inquiry is necessary in order to
comply with federal immigration law. (Labor Code � 1171.5.)
This bill provides that an individual shall not be detained by a
law enforcement official on the basis of an immigration hold
after that individual becomes eligible for release from criminal
custody, unless, at the time the individual becomes eligible for
release from criminal custody, both of the following conditions
are satisfied:
The individual has been convicted of a serious or
violent felony, according to a criminal background check or
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documentation provided to the law enforcement official by
United States Immigration and Customs Enforcement.
The continued detention of the individual on the basis
of the immigration hold would not violate any federal,
state, or local law, or any local policy.
This bill provides that the legislative body of the local agency
of the jurisdiction that the individual is being detained in
shall, prior to or after complying with an immigration hold,
adopt a plan that monitors and guards against all of the
following:
A United States citizen being detained pursuant to an
immigration hold.
Racial profiling.
Victims and witnesses to a crime being discouraged from
reporting crimes.
This bill provides that the plan described above is a public
record for purposes of the California Public Records Act, as
specified.
This bill provides that a local agency is not required to adopt
a plan, as described above, prior to complying with an
immigration hold, as specified.
This bill makes uncodified legislative findings and
declarations.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
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has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
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to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Secure Communities (S-Comm) is an Immigration and Customs
Enforcement (ICE) 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 non-citizen individuals - without the basic
right to a day in court.
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While U.S Immigration Customs and Enforcement's (ICE) stated
mission for S-Comm is to target serious offenses, the program
casts far too wide a net. ICE's own data shows that in
California 7 out of 10 of the over 67,900 individuals deported
under S-Comm had no convictions or were accused only of minor
offenses.<1> Unfortunately, this means immigrant residents
who are victims or witnesses to a crime now fear cooperating
with police since any contact with law enforcement can result
in separation from their families and deportation.
This program is eroding trust between immigrant communities
and local law enforcement. 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.
In addition to the public safety concerns, S-Comm has also
failed to provide accountability and transparency. ICE has
given contradictory and inconsistent answers to questions from
Congress, media, and local officials regarding the
participation of unwilling jurisdictions.
Forcing this problematic program on localities against their
will creates an undue burden and jeopardizes local community
policing strategies.
Local jails internalize the entire cost of submitting to ICE
holds triggered by the program, which ask local authorities to
hold individuals in local jails for a longer period of time.
S-Comm does not provide any reimbursement to localities for
the cost of participating in the program. At a time when
localities are strapped for cash they should not be spending
vital resources on federal civil immigration enforcement.
AB 1081 will rebuild the trust that S-Comm has undermined
--------------------------
<1> U.S. Immigration and Customs Enforcement, Secure Communities
IDENT/IAFIS Interoperability Monthly Statistics October 27,
2008, through Feb. 29, 2012.
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between immigrant communities and local police by establishing
statewide standards for responding to burdensome ICE hold
requests. This bill sets a clear standard for local
governments to not submit to ICE's request to detain an
individual unless the individual has a serious or violent
felony conviction. AB 1081 also requires localities to
develop a plan to prevent racial profiling and keep children,
crime victims, or survivors of domestic violence from being
wrongfully targeted.
2. Background: California's MOA with the Department of Homeland
Security
In April 2009, California's Department of Justice (DOJ) signed a
memorandum of agreement (MOA) with U.S. Immigration and Customs
Enforcement (ICE) regarding a program developed by ICE called
"Secure Communities." The purpose of the program, as described
in a letter from the program's director to DOJ urging DOJ to
sign the MOA, is "to improve community safety by identifying,
detaining and removing all aliens convicted of serious crimes
who are held in state or local correctional facilities."
(Letter dated January 23, 2009, from David J. Venturella (ICE)
to Linda Denly (DOJ), on file with the Committee.)
The MOA itself states the goals of Secure Communities as
follows:
ICE is committed to improving public safety by
transforming the way the federal government cooperates
with state and local law enforcement agencies to
identify, detain, and remove aliens who have been
convicted of and incarcerated for a Priority Level 1
offense and who are therefore amenable to removal. SC
will apply a risk-based methodology to focus
resources. This is accomplished by using advanced
technology to improve information sharing among law
enforcement agencies, leading to the removal of
high-risk convicted aliens.
The MOA states that it would identify "qualifying aliens
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convicted of serious crimes" based on a "3-level hierarchy of
aggravated felonies and other serious crimes." It identifies
the three levels as:
Level 1 - Individuals who have been convicted of major
drug offenses and violent crimes such as murder,
manslaughter, rape, robbery or kidnapping;
Level 2 - Individuals who have been convicted of minor
drug and property offenses such as burglary, larceny,
fraud, and money laundering; and,
Level 3 - Individuals who have been convicted of other
offenses. (Memorandum of Agreement between Department of
Homeland Security Immigration and Customs Enforcement and
California Department of Justice Bureau of Criminal
Identification and Information, on file with the
Committee.)
The MOA provides that DOJ will electronically submit
fingerprints of arrested individuals who are being booked to the
FBI, who will then enter that data into its Automated Biometric
Identification System (IDENT) and, where a match is found, check
the person's immigration status. ICE will send search results
back to DOJ, who will relay that information to the local law
enforcement agency that submitted the fingerprints to DOJ.
Lastly, the MOA provides that "Following identification of a
Level 1 alien who is found to be subject to removal, ICE will
take the alien into custody after completion of the individual's
sentence and proceed to institute removal (deportation)
proceedings."
3. Mounting Concerns about the Secure Communities Program
The S-Comm program has created controversy and raised concerns
among state governments that have entered MOA's similar to
California's, several members of Congress, as well as civil
rights organizations, and some local law enforcement agencies.
Some of the areas of concern are:
Failing to Comply with Stated Priorities
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For some time, S-Comm has been criticized for not adhering to
its stated purpose of targeting serious offenders but rather
using local law enforcement officers as immigration agents and
deporting large numbers of undocumented people who have either
no criminal convictions at all or only for minor offenses. One
such critic was former San Francisco Sheriff Michael Hennessey.
(See, Immigration Bait and Switch, New York Times Editorial
(August 17, 2010).) The Times editorial stated:
It turns out the critics were right.
The Immigration and Customs Enforcement records show
that a vast majority, 79 percent, of people deported
under Secure Communities had no criminal records or
had been picked up for low-level offenses, like
traffic violations and juvenile mischief. Of the
approximately 47,000 people deported in that period
only about 20 percent had been charged with or
convicted of serious "Level 1" crimes, like assault
and drug dealing. (Id.)
Recent national statistics provided by ICE documenting
deportations under S-Comm through March of this year are not
much different than those cited in the Times editorial. They
reveal that 182,896 people have been deported as a result of
this program and only 49,389 or 27% of these were Level 1
offenders. The remaining 73% are undocumented immigrants who
have been convicted of minor offenses or who have never been
convicted of a criminal offense. California has, by far, the
highest number of deportations of all the states as a result of
S-Comm. In California, from May of 2009 to March 31, 2012,
70,330 undocumented immigrants were deported as a result of
S-Comm. Of the 70,330 deportations, 18,524 or 26% had no
criminal convictions and another 30,086 or 43% are classified by
ICE as low-level offenders. (U.S. Immigration and Customs
Enforcement, Secure Communities IDENT/IAFIS Interoperability
Monthly Statistics October 27, 2008 through March 31, 2012.)
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Public Safety Concern
One concern is that using local law enforcement agencies for
immigration enforcement may cause victims and witnesses to crime
to be afraid to report criminal activity for fear of themselves
or a loved one being deported as a result. (See, Immigration
Initiative May Put Domestic Violence Victims At Risk, (March 3,
2011), California Watch,
http://californiawatch.org/dailyreport/immigration-initiative-may
-put-domestic-violence-victims-risk-8993.)
Last year, former Sheriff Hennessey wrote:
The use of fingerprints to initiate immigration
scrutiny is of particular concern to victims of
domestic violence. In a recent case in San Francisco,
a woman called 911 to report domestic violence, but
the police arrested both her and her partner.
Although no charges were ever filed against the woman,
she is now fighting deportation. There should be no
penalty for a victim of a crime to call the police.
(Secure Communities Destroys Public Trust, Michael
Hennessey, San Francisco Chronicle, (May 1, 2011),
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/0
5/01/INB81J8OCL.DTL#ixzz1OGDTs6gK)
On November 2, 2010, the Sacramento Bee reported:
Every day, 2-year-old Kimberly Vrabo peeks around her
apartment complex for her mom. If she hears police
sirens, she runs inside.
Kimberly's mother, Maria Magdalena Perez-Rivera, got
into a fight with her boyfriend, Vicente Tellez, on a
Saturday night.
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The next morning, Perez-Rivera's sister called Lodi
police. Two days later, the undocumented couple were
deported to Mexico, leaving behind Kimberly and the
couple's 3-month-old son Anthony Tellez.
Their swift removal has shattered the family. And
Sacramento's Mexican Consul General Carlos Gonz�lez
Guti�rrez and UC Davis Law School Dean Kevin Johnson
question whether justice has truly been served.
* * * * * * *
"Instead of giving them a chance to talk to a judge
and present their case for some type of legal relief
to resolve the issue, two days later the ICE van picks
them up and they are sent to Mexico," said Gonz�lez
Guti�rrez. "The tragedy is that there are two little
kids who remain with the grandmother."
* * * * * * *
"This deportation scenario is all too common. It
illustrates the potential pitfalls of local police
cooperating with immigration authorities," said
Johnson. "Immigrant women in particular are going to
underreport domestic violence, and generally,
immigrant communities are going to be less likely to
cooperate with police for fear of being deported."
(Deported Mexicans Leave Two Small Kids in Lodi,
(November 2, 2010) Sacramento Bee,
http://www.sacbee.com/2010/11/02/3151148/deported-mexic
ans-leave-two-small.html#ixzz1OK7n0NA8)
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Pre-Textual Stops and Racial Profiling
Due to the fact that, under the S-Comm program, no criminal
conviction is required before the person's fingerprints are sent
to ICE, local law enforcement may be encouraged to stop people
who appear to be foreign nationals without a legal basis for the
stop, which poses Fourth Amendment concerns. An officer may not
detain a motorist without a showing of reasonable suspicion.
This objective basis, or reasonable suspicion, must consist of
specific, articulable facts which, together with objective and
rational inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity.
(U.S. v. Brignoni-Ponce, (1975) 422 U.S. 873, 884.) Ethnic
appearance is not an appropriate factor in the reasonable
suspicion analysis. (U.S. v. Montero-Camargo (9th Cir. 2000)
208 F.3d 1122, 1132-1135.)
To protect these Fourth Amendment guarantees, items or
statements obtained during an unlawful stop or seizure are
generally inadmissible as evidence in a criminal proceeding.
(See Mapp v. Ohio (1961) 367 U.S. 643, 657, Penal Code Section
1538.5.) For individuals arrested and detained under S-Comm,
even if the arrestee was unlawfully arrested or the charges are
later dropped, the arrestee will still likely be placed on an
ICE detainer for deportation proceedings because their
fingerprints are shared with ICE and the FBI upon arrest only,
not a conviction. This removes the deterrent that is meant to
discourage any police officers who might be so inclined from
making unlawful stops based on racial profiling or perceived
immigration status because ICE will take them into custody once
the criminal case is concluded, even if all charges are dropped.
Data from ICE confirms that at least one jurisdiction which has
been criticized for racial profiling, Maricopa County, Arizona,
has an extraordinarily high rate of fingerprint submissions
under the S-Comm program: 821,175 submissions as of March 31,
2012, amounting to 79% of all submissions from the entire state
of Arizona. (U.S. Immigration and Customs Enforcement, Secure
Communities IDENT/IAFIS Interoperability Monthly Statistics
October 27, 2008 through March 31, 2012.)
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Inconsistent Statements by ICE on Counties Ability to Opt-Out
On July 27, 2010, Representative Zoe Lofgren, then the
Chairwoman of the House Subcommittee on Immigration,
Citizenship, Refugees, Border Security and International Law,
wrote Janet Napolitano, Secretary of Homeland Security and Eric
Holder, the United States Attorney General:
There appears to be significant confusion about how
local law enforcement agencies may "opt out" of
participating in Secure Communities, such that
fingerprints submitted by them to State Identification
Bureaus (SIBs) in order to be checked by the Federal
Bureau of Investigations (FBI) Criminal Justice
Information Services Division (CJIS) Integrated
Automated Fingerprint Identification System (IAFIS)
will not also be checked against databases or
identification systems maintained by the U.S.
Department of Homeland security for purposes of
determining immigration status. Staff from the
Subcommittee on Immigration, Citizenship, Refugees,
Border Security and International Law were briefed on
this program by ICE and were informed that localities
could opt out simply by making such a request to ICE.
Subsequent conversations with ICE and FBI CJIS have
added to the confusion by suggesting that this might
not be so. (Letter on file with the Committee.)
On April 25, 2011, the Los Angeles Times reported, "U.S. Rep.
Zoe Lofgren (D-San Jose) on Friday accused ICE officials of
lying to local governments and to Congress and called for a
probe into whether ICE Director John Morton and Homeland
Security Secretary Janet Napolitano, who oversees the agency,
were aware of the deception." (Noncriminals Swept Up In Federal
Deportation Program (April 25, 2011)
http://www.latimes.com/news/local/la-me-secure-communities-201104
25,0,1739725.story.)
The Times reported further:
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Supporters applaud Secure Communities for replacing ad
hoc immigration enforcement with a nationwide effort
that targets criminals.
"Before what was happening was the local officers had
no way of knowing or had to take special steps to find
out if the people they arrested were potentially
removable from the community," said Jessica Vaughan,
director of policy studies for the Washington,
D.C.-based Center for Immigration Studies, which
advocates for tougher immigration enforcement. Los
Angeles County Sheriff Lee Baca also supports the
program.
But Lofgren and others are upset over what they see as
the deception with which the Secure Communities
program was implemented.
The congresswoman was most angered by the hundreds of
ICE internal documents recently released by order of a
federal judge. A review of the correspondence reveals
an agency that misled local and state officials as it
struggled to defuse what one email called "a domino
effect" of political opposition.
As early as November 2009, Secure Communities Acting
Director Marc Rapp declared in an email that
"voluntary" meant "the ability to receive the
immigration response" about fingerprint matches, not
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the ability to decline to provide the data in the
first place.
But for nearly a year that was not made clear to local
agencies. "They said, 'You set up a meeting and you
opt out.' That's why we're pretty unhappy," said
Santa Clara County Counsel Miguel Marquez.
San Francisco County Sheriff Michael Hennessey also
unsuccessfully sought to opt out of the program last
summer. Hennessey is developing a policy that would
honor ICE detainer requests only for felons and
misdemeanants whose crimes involve "violence, guns,
and certain sex offenses." Santa Clara County is
exploring a similar policy.
In July, Lofgren wrote Napolitano and U.S. Atty. Gen.
Eric Holder seeking "a clear explanation of how local
law enforcement agencies may opt out of Secure
Communities by having the fingerprints they collect ?
checked against criminal, but not immigration
databases." In September, she received letters back
stating that locals need only submit the request in
writing to state and federal officials.
ICE officials knew the language was misleading. "I
like the thought. But reading the response alone
would lead one to believe that a site can elect to
never participate should they wish," an FBI staffer
wrote to ICE colleagues in an August email exchange
about the draft. In October, Napolitano and Morton
finally held a news conference to clarify that opting
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out of Secure Communities is not possible.
A Homeland Security official said Friday that "Secure
Communities is not voluntary and never has been.
Unfortunately, this was not communicated as clearly as
it should have been to state and local jurisdictions."
(Id.)
4. Illinois and New York Withdraw from S-Comm, and Massachusetts
Stays Out
On May 4, 2011, Illinois Governor Pat Quinn terminated that
state's MOA with ICE regarding S-Comm. In a letter to the
Acting Assistant Director of the Secure Communities program he
wrote:
ISP �Illinois State Police] and ICE executed the
Secure Communities MOA in November 2009. The stated
purpose of the program, as set forth in the MOA, is to
"identify, detain and remove from the United States
aliens who have been convicted of serious criminal
offenses and are subject to removal" (emphasis added).
ICE statistics on the Secure Communities Program,
compiled through February 28, 2011, reveal that the
implementation of the Secure Communities program in
Illinois is contrary to the stated purpose of the MOA:
more than 30% of those deported from the United
States, under the program, have never been convicted
of any crime, much less a serious one. In fact, by
ICE's own measure, less than 20% of those who have
been deported from Illinois under the program have
ever been convicted of a serious crime. (Letter dated
May 4, 2011, from Illinois Governor Pat Quinn to Mr.
Marc Rapp, Immigration and Customs Enforcement, on
file with the Committee.)
On May 5, 2011, the Congressional Hispanic Caucus wrote
President Obama asking him to "freeze the Secure Communities
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Program ('S-Comm'), effective immediately." (Letter dated May
5, 2011, from Rep. Charles A. Gonzales, Chair, Congressional
Hispanic Caucus, to President Barack Obama on file with the
Committee.)
On June 2, 2011, New York Governor Andrew Cuomo announced that
he was suspending New York's participation in S-Comm. Mylan
Denerstein, Counsel to Governor Cuomo, wrote in a letter to John
Sandweg, Counselor to the Secretary of Homeland Security:
�U]ntil the numerous questions and controversies
regarding the program can be resolved, we have
determined that New York is best served by relying on
existing tools to ensure the safety of its residents,
especially given our overriding concern that the
current mechanism is actually undermining law
enforcement. As a result, we are suspending New
York's participation in this program. (Letter dated
June 1, 2011, from Mylan Denerstein, Counsel to
Governor Cuomo, to John Sandweg, ICE, on file with the
Committee; see also Cuomo Ends State's Role in
Checking Immigrants (June 2, 2011) New York Times,
http://www.nytimes.com/2011/06/02/nyregion/cuomo-pulls-
new-york-from-us-fingerprint-checks.html?scp=2&sq=%22Se
cure%20communities%22&st=cse)
On June 3, 2011, Mary Heffernan, Massachusetts Secretary of
Public Safety and Security sent a letter to the Acting Director
of the Secure Communities program stating that Governor Deval
Patrick has directed that Massachusetts not enter any MOA to
participate in the program for reasons similar to those stated
by the Governors of New York and Illinois. (Letter dated June
3, 2011, from Mary Heffernan, Secretary of Public Safety and
Security, to Marc Rapp, Acting Director, Secure Communities,
Immigration and Customs Enforcement, on file with the
Committee.)
On August 5, 2011, in response to growing resistance to
participation in S-Comm from several states, ICE Director John
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Morton wrote Governors stating that his agency was rescinding
all signed MOAs and stating further that no signed agreement was
necessary for the data sharing to take place, and that the
program is mandatory for all jurisdictions. (Letter dated
August 5, 2011, from John Morton to Governor Brown on file with
the Committee.)
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5. What This Bill Would Do
This bill would direct all law enforcement agencies in
California not to continue to detain a person in custody, who is
otherwise eligible for release, on the basis of an immigration
detainer requests from ICE unless it pertained to a person who
had a prior serious or violent felony conviction and did not
otherwise violate any federal, state, or local law, or any local
policy. This raises the question whether an immigration "hold"
or "detainer" is a voluntary request from ICE or a legal
obligation. Federal regulations on the subject state:
Any authorized immigration officer may at any time
issue a Form I-247, Immigration Detainer-Notice of
Action, to any other Federal, State, or local law
enforcement agency. A detainer serves to advise
another law enforcement agency that the Department
seeks custody of an alien presently in the custody of
that agency, for the purpose of arresting and removing
the alien. The detainer is a request that such agency
advise the Department, prior to release of the alien,
in order for the Department to arrange to assume
custody, in situations when gaining immediate physical
custody is either impracticable or impossible. (8
Code of Federal Regulations � 287.7(a).)
Federal regulations also state:
Upon a determination by the Department to issue a
detainer for an alien not otherwise detained by a
criminal justice agency, such agency shall maintain
custody of the alien for a period not to exceed 48
hours, excluding Saturdays, Sundays, and holidays in
order to permit assumption of custody by the
Department. (8 Code of Federal Regulations �
287.7(d).)
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While use of the word "shall" in subdivision (d) of section
287.7 could be read to mean that detainers are not requests, it
could also be read to mandate that detainers not extend for more
than 48 hours. A federal district court in Indiana recently
interpreted these regulations to mean ICE detainers are
voluntary requests, which expire after 48 hours:
If federal or local law enforcement informs ICE that
an alien is in custody on non-immigration related
charges, ICE may issue a detainer requesting that the
law enforcement agency hold the individual for up to
48 hours (not including weekend days and holidays)
beyond the time that the detainee would otherwise be
released in order to allow ICE to assume custody, if
it chooses to do so. (8 C.F.R. � 287.7(d).) A
detainer is not a criminal warrant, but rather a
voluntary request that the law enforcement agency
"advise �DHS], prior to release of the alien, in order
for �DHS] to arrange to assume custody." (Id. �
287.7(a).) The detainer automatically expires at the
end of the 48-hour period. Id. (Buquer v. City of
Indianapolis, 797 F. Supp. 2d 905, 911 (S.D. Ind.
2011).)
This bill also requires the local government in the jurisdiction
where a person is held on an ICE detainer to adopt a plan to
guard against a United States citizen being detained pursuant to
an immigration hold, racial profiling, and victims and witnesses
to crime being discouraged from reporting crimes. The bill
specifies, however, that adoption of such a plan is not required
before a law enforcement agency could detain a person based on
an ICE hold, provided the other criteria in the bill are
satisfied.
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