BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
4
AB 4 (Ammiano)
As Amended June 24, 2013
Hearing date: July 2, 2013
Penal Code
SM:mc
IMMIGRATION DETAINERS
HISTORY
Source: American Civil Liberties Union; Asian Law Caucus;
California Immigrant Policy Center; Mexican American
Legal Defense and Education Fund; National Day Laborer
Organizing Network
Prior Legislation: AB 1081 (Ammiano) - 2011-2012, vetoed
Support: American Civil Liberties Union of Santa Cruz County;
American Federation of State, County and Municipal
Employees (AFSCME); American Friends Service
Committee's US-Mexico Border Project; Asian Americans
for Civil Rights & Equality; Asian Law Alliance; Bill
of Rights Defense Committee; Black Alliance for Just
Immigration; California Attorneys for Criminal Justice;
California Catholic Conference, Inc.; California
Communities United Institute; California Immigrant
Policy Center; California Partnership to End Domestic
Violence; 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; Centro Legal de la Raza; Chinese for
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Affirmative Action; Coalition for Humane Immigrant
Rights of Los Angeles; Council on American-Islamic
Relations; Diocese of Orange; Dream Team Los Angeles;
East Bay Interfaith Committee for Worker Justice; East
Bay Sanctuary Covenant; Filipino Advocates for Justice;
Fresno Immigrant Youth in Action; 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 of the United Methodist Church; Interfaith
Coalition for Immigrant Rights; Jewish Community
Relations Council of San Francisco; 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; People's Democratic
Club of Santa Cruz County; PICO California; Reform, CA;
San Francisco Immigrant Rights Commission; Santa Cruz
County Board of Supervisors; Services, Immigrant Rights
and Education Network; Silicon Valley Community
Foundation; UAW Local 4123; UAW Local 5810; Unitarian
Universalist Legislative Ministry Action Network;
United Food and Commercial Workers Union, Local 5; The
Women's Foundation of California; Friends Committee on
Legislation of California; Two private individuals
(prior to June 24, 2013, amendments)
Opposition:California District Attorneys Association; California
State Sheriffs' Association; Taxpayers for Improving
Public Safety; Los Angeles County District Attorney
Assembly Floor Vote: Ayes 44 - Noes 22
KEY ISSUE
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SHOULD LAW ENFORCEMENT OFFICIALS HAVE DISCRETION TO DETAIN AN
INDIVIDUAL ON THE BASIS OF AN IMMIGRATION HOLD AFTER THAT
INDIVIDUAL BECOMES ELIGIBLE FOR RELEASE FROM CUSTODY ONLY IF
THAT CONTINUED DETENTION WOULD NOT VIOLATE ANY FEDERAL, STATE,
OR LOCAL LAW, OR ANY LOCAL POLICY, AND ONLY IF THE PERSON HAS A
PRIOR CONVICTION FOR A SPECIFIED FELONY, A CONVICTION FOR A
SPECIFIED MISDEMEANOR WITHIN THE LAST FIVE YEARS, IS A CURRENT
REGISTRANT ON THE CALIFORNIA SEX AND ARSON REGISTRY, OR HAS A
PENDING FELONY CHARGE AND HAS BEEN HELD TO ANSWER ON THAT CHARGE
BY A MAGISTRATE?
PURPOSE
The purpose of this bill is to (1) make uncodified legislative
findings and declarations; and (2) provide that a law
enforcement official would have discretion to cooperate with
federal immigration officials by detaining an individual on the
basis of an immigration hold after that individual becomes
eligible for release from custody only if 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 only if the person has a prior conviction for a
specified felony, a conviction for a specified misdemeanor
within the last five years, is a current registrant on the
California Sex and Arson Registry, or has a pending felony
charge and has been held to answer on that charge by a
magistrate.
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 would provide that a law enforcement official would
have discretion to cooperate with federal immigration officials
by detaining an individual on the basis of an immigration hold
after that individual becomes eligible for release from custody
only if 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 only under any of the
following circumstances:
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The individual has been convicted of a serious or
violent felony, as specified.
The individual has been convicted of any felony which is
punishable by imprisonment in state prison.
The individual has been convicted within the last five
years of a misdemeanor for a crime that is punishable as a
felony or misdemeanor.
The individual has been convicted at any time for any
one of a list of specified felonies.
The individual is a current registrant on the California
Sex and Arson Registry.
The individual has been arrested for any specified
felony, and a magistrate has made a finding that there is
probable cause to hold the person to answer for that
charge.
If none of these conditions are satisfied, an individual may not
be detained on the basis of an immigration hold after that
person becomes eligible for release from custody.
This bill makes the following uncodified findings and
declarations:
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 local jails for additional time beyond when they would
be eligible for release in a criminal matter.
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.
Unlike criminal detainers, which are supported by a
warrant and require probable cause, there is no
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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.
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.
It is the intent of the Legislature 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
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stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
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prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
While the U.S. Immigration and Customs 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 about 7 out of 10 of
the over 93,500 Californians deported as of February
2013 under S-Comm had no convictions or only minor
offenses. 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. Even U.S. citizens,
survivors of domestic violence, and immigrants
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arrested only for selling street food without a permit
have been unfairly detained for extra time at local
expense due to S-Comm.
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)
(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
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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 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
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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.)
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4. Crime and Undocumented Immigrants
According to research, immigrants, including undocumented
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. S-Comm's Potential Adverse Effects on Public Safety
One concern raised about the implementation of S-Comm 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
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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.)
In 2011, former San Francisco 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.
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
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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.)
6. S-Comm Creates Potential for Pretextual Stops and Racial
Profiling
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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, another concern is that this may
encourage some officers 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 �
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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7. AB 1081 Governor's Veto Message
Last year the Legislature approved AB 1081 (Ammiano), which also
addressed honoring ICE holds under S-Comm. Governor Brown
vetoed AB 1081 stating:
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 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.
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The significant flaws in this bill can be fixed, and I
will work with the Legislature to see that the bill is
corrected forthwith.
8. What This Bill Would Do
This bill would provide that a law enforcement official would
have discretion to cooperate with federal immigration officials
by detaining an individual on the basis of an immigration hold
after that individual becomes eligible for release from custody
only if 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 only under any of the
following circumstances:
the individual has been convicted of a serious or
violent felony, as specified;
the individual has been convicted of any felony which is
punishable by imprisonment in state prison;
the individual has been convicted within the last five
years of a misdemeanor for a crime that is punishable as a
felony or misdemeanor;
the individual has been convicted at any time for any
one of a list of specified felonies.
the individual is a current registrant on the California
Sex and Arson Registry; and
the individual has been arrested for any specified
felony, and a magistrate has made a finding that there is
probable cause to hold the person to answer for that
charge.
If none of these conditions are satisfied, an individual may not
be detained on the basis of an immigration hold after that
person becomes eligible for release from custody.
9. Argument in Support
The California Partnership to End Domestic Violence states:
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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 90,000 California
residents as of December 2012 - more than any other
state. Contrary to this program's stated goal of
prioritizing serious felony offenses, the vast
majority of those deported, about 69%, 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 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 that they
could be detained for deportation by ICE.
The TRUST Act [AB 4]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 cost 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 released.
We believe California can do better. Passage of this
bill would go in long way toward restoring trust
between local law enforcement and the diverse
immigrant communities we serve.
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10. Argument in Opposition
The California District Attorneys Association states:
We are concerned that this bill could result in the
inappropriate and untimely release of potentially
dangerous offenders. There are numerous crimes that
do not meet the statutory definition of serious felony
or violent felony that are nonetheless serious and/or
violent. Additionally, this infirmity appears to be
the basis for Governor Brown's veto of last year's
A.B. 1081, a nearly identical bill, and it is unclear
what has changed in the meantime.
Additionally, we fear this bill would frustrate local
cooperation with federal officials who maintain
exclusive province over the enforcement of immigration
law. It appears that this bill would permit a local
policy to trump federal law, and it is not clear how
such a provision would pass constitutional muster.
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