BILL ANALYSIS �
AB 1081
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1081 (Ammiano)
As Amended May 14, 2012
Majority vote
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|ASSEMBLY: |47-26|(May 26, 2011) |SENATE: |21-13|(July 5, 2012) |
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Original Committee Reference: PUB. S.
SUMMARY : Prohibits law enforcement officials from detaining an
individual based on an immigration hold when the individual is
otherwise eligible for release from criminal custody, unless
specified conditions are met.
The Senate amendments :
1)Prohibit an individual form being 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:
a) The individual has been convicted of a serious or violent
felony, according to a criminal background check or
documentation provided to the law enforcement official by the
United States (U.S.) Immigration and Customs Enforcement (ICE);
and,
b) 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.
2)Mandate the legislative body of the local agency of the
jurisdiction that the individual is being detained, prior to or
after complying with an immigration hold, to adopt a plan that
monitors and guards against the following:
a) A U.S. citizen being detained pursuant to an immigration
hold;
b) Racial profiling; and,
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c) Victims and witnesses to crime being discouraged from
reporting crimes.
3)Declare the local plan a public record for purposes of the
California Public Records Act.
4)State that a local agency is not required to adopt a plan prior to
complying with an immigration hold.
5)State that the provisions of this act are severable and if any
provision or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be
given effect without the invalid provisions or application.
6)Define "eligible for release from criminal custody" to mean that
the individual may be released from criminal custody because one
of the following conditions have been met:
a) All criminal charges against the individual have been
dropped or dismissed;
b) The individual has been acquitted of all criminal charges
filed against him or her;
c) The individual has served all the time required for his or
her sentence;
d) The individual has posted a bond; or,
e) The individual is otherwise eligible for release under state
or local law, or local policy.
7)Define "immigration hold" to mean an immigration detainer issued
by an authorized immigration officer pursuant to federal law that
requests that the law enforcement official maintain custody of the
individual for a period not to exceed 48 hours, and to advise the
authorized immigration officer prior to the release of that
individual.
8)Define "law enforcement official" as any local agency or officer
of a local agency authorized to enforce criminal statutes,
regulations, or local ordinances or to operate jails or to
maintain custody of individuals in jails, and any person or local
agency or state governmental entity authorized to operate juvenile
detention facilities or to maintain custody of individuals in
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juvenile detention facilities.
9)Define "local agency" as any city, county, city and county,
special district, or other political subdivision of the state.
10)Define "serious felony" as any of the offenses listed in
subdivision (c) of Section 1192.7 of the Penal Code and any
offense committed in another state which, if committed in
California, would be punishable as a serious felony as defined by
subdivision (c) of Section 1192.7 of the Penal Code.
11)Define "violent felony" as any of the offenses listed in
subdivision (c) of Section 667.5 of the Penal Code and any offense
committed in another state which, if committed in California,
would be punishable as a violent felony as defined by subdivision
(c) of Section 667.5 of the Penal Code.
12)Declare the findings of the Legislature that ICE's Secure
Communities program (S-Comm) shifts the burden and responsibility
of federal civil immigration enforcement onto local law
enforcement while undercutting community policing strategies. To
operate the Secure Communities program, ICE relies on immigration
detainers. These are voluntary requests to local law enforcement
to hold individuals for additional time beyond when they would be
eligible for release.
13)Declare the findings of the Legislature that immigration
detainers are a drain on local resources because state and local
law enforcement agencies are not reimbursed for the full cost of
responding to a detainer, which can include, but is not limited
to, extended detention time and the administrative costs of
tracking and responding to detainers. ICE may not mandate the
expenditure of state and local resources or the use of state and
local agencies to implement federal programs, such as S-Comm.
14)Declare the findings of the Legislature that immigration
detainers are not criminal detainers. Criminal detainers are
supported by a warrant and require probable cause. In contrast,
there is no requirement for a warrant and no established standard
of proof or probable cause for issuing an ICE detainer request.
Immigration detainers have erroneously been placed on U.S.
citizens as well as immigrants who are not deportable.
EXISTING LAW : Requires, under S-Comm, developed by the U.S.
Department of Homeland Security and ICE in March 2008, that
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participating local law enforcement agencies submit arrestees'
fingerprints to ICE and Federal Bureau of Investigation 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
statements and materials, S-Comm is intended to target dangerous
criminals and those who pose threats to public safety.
S-Comm is intended to identify and prioritize for removal
undocumented immigrants based on the following classifications:
1)Level 1 - Individuals who have been convicted of major drug
offenses and violent crimes such as murder, manslaughter, rape,
robbery or kidnapping.
2)Level 2 - Individuals who have been convicted of minor drug and
property offenses such as burglary, larceny, fraud, and money
laundering.
3)Level 3 - Individuals who have been convicted of other offenses.
On April 10, 2009, the California's Department of Justice (DOJ)
entered into a memorandum of agreement (MOA) with ICE to implement
S-Comm in California counties.
AS PASSED BY THE ASSEMBLY , this bill required ICE to modify the
current S-Comm agreement with California to allow counties to
participate in the program only upon the passage of an ordinance or
resolution authorizing participation. Specifically, this bill :
1)Required the modified agreement to include the following
exemptions and limitations to S-Comm:
a) Protections for domestic violence victims; and,
b) Protections for juveniles.
2)Required a local government that opts to participate in the
program to prepare a plan to monitor and guard against racial
profiling, discouraging reporting by domestic violence victims,
and harming community policing overall. This plan shall be deemed
a public record for purposes of the Public Records Act.
3)Limited sharing of fingerprints under S-Comm to those of
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individuals convicted, rather than merely accused, of a crime.
4)Prohibited obtaining fingerprints for the purposes of S-Comm
program through the use of checkpoints, and the stopping of
individuals solely based on perceived immigration status.
5)Required that ICE establish a complaint mechanism that allows for
expedited review of claims by those put into immigration removal
proceedings prior to conviction as a result of S-Comm.
6)Required that ICE make available to the public on its Internet Web
site quarterly statistics on S-Comm in California, including
information on the following:
a) Number of searches to IDENT;
b) Number of matches to IDENT;
c) Number of detainers issued by ICE based on Level 1, Level 2,
and Level 3 offense categories;
d) Number of detainers issued by ICE where charges are never
filed, are later dismissed or where there is ultimately no
conviction;
e) Number of Level 1, Level 2, and Level 3 arrestees who are
transferred into ICE custody after being subjected to an ICE
detainer, where charges are never filed, are later dismissed or
where there is ultimately no conviction;
f) Number of identified detainees prosecuted criminally in
federal court;
g) Number of identified detainees removed from the U.S.;
h) Number of identified U.S. citizens and persons with lawful
status identified through S-Comm; and,
i) Nationality, age, and gender of individuals identified and
removed through S-Comm.
7)Stated that ICE must terminate the MOA if these requirements
cannot be fulfilled.
FISCAL EFFECT : According to the Senate Appropriations Committee,
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pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : 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.
"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. This bill brings S-Comm out of its shadowy
misinformation and creates clear reporting requirements that let us
know how it's operating and who is impacted.
"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 do so with safeguards to protect
our communities from the program's pitfalls. This bill adds
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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."
Please see the policy committee analysis for a full discussion of
this bill.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN:
0003673