BILL ANALYSIS �
AB 4
Page 1
Date of Hearing: April 9, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 4 (Ammiano) - As Introduced: December 3, 2012
SUMMARY : Prohibits a law enforcement official from detaining an
individual on the basis of a United States Immigration and
Customs Enforcement (ICE) hold after that individual becomes
eligible for release from criminal custody, unless certain
conditions are met. Specifically, this bill :
1)Provides that a law enforcement official has the discretion to
detain an individual on the basis of an immigration hold after
that individual becomes eligible for release from criminal
custody, only if 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
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)States that "conviction" shall have the same meaning as Penal
Code 667(d).
3)States that "eligible for release from criminal custody" means
that the individual may be released from criminal custody
because one of the following conditions has occurred:
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
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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.
4)Defines "immigration hold" as an immigration detainer issued
by an authorized immigration officer, pursuant to Section
287.7 of Title 8 of the Code of Federal Regulations (CFR),
that requests that the law enforcement official to maintain
custody of the individual for a period not to exceed 48 hours,
excluding Saturdays, Sundays, and holidays, and to advise the
authorized immigration officer prior to the release of that
individual.
5)Defines "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 authorized to operate juvenile detention
facilities or to maintain custody of individuals in juvenile
detention facilities.
6)Defines "local agency" as any city, county, city and county,
special district, or other political subdivision of the state.
7)States that "serious felony" means any of the offenses listed
in Penal Code 1192.7(c) and any offense committed in another
state which, if committed in California, would be punishable
as a serious felony as defined by Penal Code 1192.7(c).
8)States that "violent felony" means any of the offenses listed
in Penal Code Section 667.5(c) and any offense committed in
another state which, if committed in California, would be
punishable as a violent felony as defined by Penal Code
Section 667.5(c).
9)Makes the following legislative findings and declarations:
a) ICE's Secure Communities program shifts the burden of
federal civil immigration enforcement onto local law
enforcement. To operate the Secure Communities program,
ICE relies on voluntary requests, known as ICE holds or
detainers, to local law enforcement to hold individuals in
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local jails for additional time beyond when they would be
eligible for release in a criminal matter.
b) State and local law enforcement agencies are not
reimbursed by the federal government 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.
c) Unlike criminal detainers, which are supported by a
warrant and require probable cause, there is no requirement
for a warrant and no established standard of proof, such as
reasonable suspicion or probable cause, for issuing an ICE
detainer request. Immigration detainers have erroneously
been placed on United States citizens as well as immigrants
who are not deportable.
d) The Secure Communities program and immigration detainers
harm community policing efforts because immigrant residents
who are victims of or witnesses to crime, including
domestic violence, are less likely to report crime or
cooperate with law enforcement when any contact with law
enforcement could result in deportation. The program can
result in a person being held and transferred into
immigration detention without regard to whether the arrest
is the result of a mistake, or merely a routine practice of
questioning individuals involved in a dispute without
pressing charges. Victims or witnesses to crimes may
otherwise have recourse to lawful status (such as U-visas
or T-visas) that detention resulting from the Secure
Communities program obstructs.
10) Provides legislative intent that this act
shall not be construed as providing, expanding, or ratifying
the legal authority for any state or local law enforcement
agency to detain an individual on an immigration hold.
11) States that the provisions of this act are
severable. If any provision of this act or its application is
held invalid, that invalidity shall not affect other
provisions or applications that can be given effect without
the invalid provision or application.
EXISTING FEDERAL LAW :
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1)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
assume custody, in situations when gaining immediate physical
custody is either impracticable or impossible. [8 CFR Section
287.7(a).]
2)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 CFR Section 287.7(d).]
3)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 memorandum of
agreements (MOAs). [8 U.S.C. Section 1357(g).]
4)States that the powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people. (U.S.
Const. 10th Amend.)
5)Provides that no State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws. (U.S. Const. 14th Amend.)
EXISTING LAW :
1)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
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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 Section 1171.5.)
2)Provides that a person may not be deprived of life, liberty,
or property without due process of law or denied equal
protection of the laws; provided, that nothing contained
herein or elsewhere in this Constitution imposes upon the
State of California or any public entity, board, or official
any obligations or responsibilities which exceed those imposed
by the Equal Protection Clause of the 14th Amendment to the
United States Constitution with respect to the use of pupil
school assignment or pupil transportation. (Cal. Const., art.
I, � 7.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The
controversial federal 'Secure Communities' program, also known
as S-Comm, automatically checks the immigration background of
every individual at the point of arrest by sharing fingerprint
data with U.S. Immigration Customs and Enforcement (ICE). If
there is a match in the flawed database ICE then sends a
detainer request asking localities to detain and individual
for extra time, at local expense, so they can be picked up for
deportation.
"The stated mission of the S-Comm program is to target serious
offenders, however in California 70% of the 72,694
Californians deported are people without criminal records,
including victims of domestic violence, or people charged with
lesser offenses, including misdemeanors.
"Contrary to its goal S-Comm has actually harmed public safety
and seriously undercut community policing strategies.
"Under S-Comm, victims of crime, including survivors of domestic
violence, are unwilling to risk separation from their families
and deportation by cooperating with local law enforcement.
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"Due to these harmful effects of S-Comm, criticism of this
program is drastically expanding nationwide. Should AB 4 be
signed into law, California would not be the first to enact
detainer reform. Cook County Illinois, Milwaukee Wisconsin,
Washington DC, and Santa Clara County here in California have
all set parameters around responding to detainer requests.
"AB 4 will establish a statewide standard for responding to ICE
holds and will prevent the prolonged detention of people who
would otherwise be released from custody if it were not for
ICE's request.
"This bill only allows individuals who have been convicted of a
serious or violent felony to be detained ensuring that
California's participation in S-Comm is consistent with ICE's
stated goals for the program."
2)Background on the Secure Communities Program : The Secure
Communities Program (S-Comm) was developed by DHS and ICE in
March 2008. Under the program, participating local law
enforcement agencies would submit arrestees' fingerprints to
ICE and Federal Bureau of Investigation databases, the United
States Visitor and Immigrant Status Indicator Technology
Program (US-VISIT), and IDENT (Automated Biometric
Identification System). The program allowed 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.
Initially, S-Comm was described as a voluntary program which
required MOAs between ICE and individual states for its
operation in each jurisdiction. The MOAs were only to be in
effect until either party decided to terminate the agreement.
Additionally, states and localities were initially told that
there would be an opportunity to opt-out of the program.
After localities attempted to opt-out of S-Comm, ICE declared
that MOAs are not required for the deployment of S-Comm and
that opting-out was not allowed. [ICE Response to the Task
Force on Secure Communities Findings and Recommendations (Apr.
27, 2012), pp. 4-5; Aguilasocho, et al., Misplaced Priorities:
The Failure of Secure Communities in Los Angeles County (Jan.
2012)
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win-ashar.pdf> (as of Apr. 3, 2013) p. 4-8.]
Under S-Comm, ICE has stated that it prioritizes the removal of
individuals based on the following order: (i) Level One
offenders with the highest priority are those convicted of
aggravated felonies as defined, or two or more felonies; (ii)
Level Two offenders are those convicted of any felony, or
three or more misdemeanors; and (iii) Level Three offenders
are those convicted of crimes punishable by less than one
year. Additionally, ICE prioritizes the removal of
individuals who are not criminals, but who are repeat border
crossers, recently unlawful entrants, or fugitives form the
immigration court system. [ICE Response to the Task Force on
Secure Communities Findings and Recommendations, supra, pp.
6-7.]
After S-Comm was implemented, data revealed that most of the
individuals detained were non-criminals or those who had
committed infractions or other minor crimes, not those that
had committed serious offenses. The most recent national
statistics provided by ICE reveal that about 24% of all
undocumented immigrants who have been detained and removed as
a result of S-Comm fall into this prioritized category. The
remaining 76% are undocumented immigrants who have been
convicted of minor offenses or who have never been convicted
of a criminal offense. California has deported 93,571
undocumented immigrants using S-Comm from October 2008 to
February 2013. Of the 93,571 deportations, about 24% or
22,431 were non-criminals. The statistics also show that 44%
or 40,770 of the 93,571 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, 2013.)
Additionally, localities reported that S-Comm forced them to
internalize financial costs of detaining people in local jails
before they are transferred to ICE custody and that the
program created harm to community policing because of the fear
that any contact with police-even by a crime victim or witness
calling 911-could lead to deportation. (Aguilasocho, et al.,
Misplaced Priorities: The Failure of Secure Communities in
Los Angeles County, supra, p. 2.)
3)Voluntariness of Immigration Detainers : Federal regulation 8
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CFR Section 287.7 contains language that is ambiguous as to
the voluntariness of immigration detainers. In the first part
of the regulation, the language states that an immigration
detainer is characterized as a "a request that such agency
advise the DHS, prior to release of the alien, in order for
the DHS to arrange to assume custody, in situations when
gaining immediate physical custody is either impracticable or
impossible." [8 CFR Section 287.7(a).] However, the
regulation later states that the 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 CFR Section 287.7(d).]
At least one court has held that 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.' The
detainer automatically expires at the end of the 48-hour
period." [8 CFR Section 287.7; Buquer v. City of Indianapolis
(S.D. Ind. 2011) 797 F. Supp. 2d 905, 911.]
Recently, the California Attorney General (AG) has taken the
position that these requests are voluntary and that local law
enforcement agencies can make their own determinations on
whether to fulfill a request for an immigration hold. In an
information bulletin to executives of state and local law
enforcement agencies, the AG stated that "[s]everal local law
enforcement agencies appear to treat immigration detainers,
sometimes called 'ICE holds,' as mandatory orders. But
immigration holds are not compulsory. Instead, they are
merely requests enforceable at the discretion of the agency
holding the individual arrestee. We reach this conclusion both
because the I-247 form is couched in non-mandatory language
and because the Tenth Amendment to the U.S. Constitution
reserves power to the states to conduct their affairs without
specific mandates from the federal government. Under the
Secure Communities Program, the federal government neither
indemnifies nor reimburses local law enforcement agencies for
complying with immigration detainers." (Citations omitted.)
[California Department of Justice, Responsibilities of Local
Law Enforcement Agencies under Secure Communities (Dec. 4,
2012), p. 2.]
4)The Connection between Crime and Undocumented Immigrants ?
According to research, immigrants, including undocumented
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immigrants, do not commit crimes at higher rates than
American-born residents. 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 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. (The entire study can be found at
.)
Another study, which tracked violent crime in 180 Chicago
neighborhoods, concluded that first-generation immigrants,
including undocumented immigrants, were 45% less likely to
commit violent acts than third-generation Americans. The study
also revealed that living in neighborhoods of concentrated
immigration was associated with lower violence. [Robert
Sampson, Rethinking Crime and Immigration, American
Sociological Association, (Winter 2008) Contexts, Vol. 7, No.
1, page 29.] Findings from such reports suggest that
longstanding fears of immigration as a threat to public safety
are unjustified.
5)AB 1081 Governor's Veto Message : "Undocumented immigrants
play a major role in California's economy, with many
performing low-wage jobs that others don't want. Comprehensive
immigration reform-including a path to citizenship-would
provide tremendous economic benefits and is long overdue.
Until we have immigration reform, federal agents shouldn't try
to coerce local law enforcement officers into detaining people
who've been picked up for minor offenses and pose no
reasonable threat to their community.
"But I am unable to sign this bill as written. Under the bill,
local officers would be prohibited from complying with an
immigration detainer unless the person arrested was charged
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with, or has been previously convicted of, a serious or
violent felony. Unfortunately, the list of offenses codified
in the bill is fatally flawed because it omits many serious
crimes. For example, the bill would bar local cooperation even
when the person arrested has been convicted of certain crimes
involving child abuse, drug trafficking, selling weapons,
using children to sell drugs, or gangs. I believe it's unwise
to interfere with a sheriff's discretion to comply with a
detainer issued for people with these kinds of troubling
criminal records.
"The significant flaws in this bill can be fixed, and I will
work with the Legislature to see that the bill is corrected
forthwith."
6)Argument in Support : According to the American Civil
Liberties Union , "S-Comm is a controversial Immigration and
Customs Enforcement (ICE) program which has undercut community
policing strategies. Since its implementation, S-Comm has led
to the deportation of over 92,000 California residents as of
January 2013 - more than any other state. Contrary to the
program's stated goal of prioritizing serious felony offenses,
the vast majority of those deported, about 7 out of 10, are
categorized by ICE as either 'non-criminals' or individuals
with lesser offenses, including traffic violations. Even U.S.
citizens, survivors of domestic violence, and immigrants
arrested only for selling street food without a permit have
been unfairly detained due to S-Comm.
"Despite changes announced to the program, a report from the
University of California Irvine's Immigrant Rights Clinic
found that 'ICE's failure to adhere to its own stated
priorities is a feature rather than a reparable flaw' of
S-Comm. Thus, immigrant victims and witnesses of crime may be
afraid to come forward to cooperate with law enforcement for
fear they could be detained for deportation by ICE.
"The TRUST Act will set reasonable limits for local responses to
ICE's burdensome 'detainer' requests, the linchpin of the
failed S-Comm program. These holds are voluntary under
federal regulations and federal statute. Currently, local
jails bear the brunt of the costs of responding to these
requests. This includes the cost of tracking and responding
to ICE detainers, and the additional time community members
are held beyond the point they would normally be
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released."(Footnotes omitted.)
7)Argument in Opposition : The California State Sheriffs'
Association writes, "As noted by Governor Brown in his veto of
Assembly Bill 1081, this measure would require the release of
offenders into the community that have been convicted of many
serious crimes, including but not drug trafficking, child
abuse, domestic violence, and solicitation for murder. In
addition, even if a person is in custody and has no apparent
record of prior state criminal offenses, it does not mean that
the person has not committed serious violations of federal law
or is not a threat to national security or public safety.
While the Department of Homeland Security has been criticized
in the past for not providing sufficient information with
respect to its detainer requests, it should not be presumed
that a detainer request involving someone without significant
prior criminal history should be ignored, especially now that
the Department of Homeland Security has updated the DHS Form
1-247."
8)Related Legislation :
a) AB 351 (Donnelly) enacts the California Liberty
Preservation Act which prohibits state cooperation with
federal officials regarding the indefinite detention of
persons in California. AB 351 will be heard by this
Committee today.
b) AB 524 (Mullin) provides that a threat to report the
immigration status or suspected immigration status of an
individual or the individual's family may induce fear
sufficient to constitute extortion. AB 524 is pending
hearing by the Committee on Appropriations.
9)Prior Legislation : AB 1081 (Ammiano), of the 2011-12
Legislative Session, was substantially similar to this bill.
AB 1081 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union of Northern California
(Co-Sponsor)
California Immigrant Policy Center (Co-Sponsor)
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Mexican American Legal Defense and Education Fund (Co-Sponsor)
American Civil Liberties Union of Santa Cruz County
American Friends Service Committee's US-Mexico Border Project
Asian Americans for Civil Rights & Equality
Asian Law Alliance
Black Alliance for Just Immigration
California Catholic Conference, Inc.
California Public Defenders Association
Cal-Islanders Humanitarian Association
Canal Alliance
Central American Resource Center - Los Angeles
Central American Resource Center - San Francisco
Central Valley Partnership for Citizenship
Centro Laboral de Graton
Chinese for Affirmative Action
Diocese of Orange
Dream Team Los Angeles
East Bay Interfaith Committee for Worker Justice
East Bay Sanctuary Covenant
Filipino Advocates for Justice
Fresno Interdenominational Refugee Ministries
Golden State Bail Agents Association
Greater Long Beach Interfaith Community Organization
Immigrant Legal resource Center
Immigration Center for Women and Children
Immigration Task Force of California Nevada Annual Conference
Inland Congregations United for Change
Interfaith Coalition for Immigrant Rights
L.A. Gay and Lesbian Center
Lutheran Office of Public Policy - California
Mujeres Unidas y Activas
National Association of Social Workers - California Chapter
National Immigration Law Center
Out4 Immigration
PANGEA Legal Services
Sacramento Areas Congregation Together
San Diego LGBT Community Center
Services, Immigrant Rights and Education Network
Silicon Valley Community Foundation
The Women's Foundation of California
UAW Local 4123
UAW Local 5810
Unitarian Universalist Legislative Ministry Action Network
Two private individuals
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Opposition
California District Attorneys Association
California State Sheriffs' Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744