Existing law generally regulates formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.

Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

This bill would, commencing on January 1, 2018, prohibit a city, county, or a city and county, or a local law enforcement agency from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants in civil immigration proceedings for profit.

Existing law requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, as specified.

This bill would require a city, county, or city and county, or a local law enforcement agency that chooses to enter into a contract to detain immigrants in civil immigration proceedings to detain immigrants only pursuant to a contract that requires the immigration detention facility operator to adhere to specified standards.

The California Public Records Act requires state and local agencies to make their records available for public inspection and to make copies available upon request and payment of a fee unless the records are exempt from disclosure.

This bill would specify that any facility that detains an immigrant pursuant to a contract with a city, county, city and county, or a local law enforcement agency is subject to the California Public Records Act.

Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges in all business establishments of every kind. Persons denied their rights under this act may obtain specified remedies, including treble damages.

This bill would provide that an immigration detention facility operator, as defined, an agent thereof, or a person acting on its behalf, shall not deprive an immigrant detainee in civil immigration proceedings of specified rights, including access to an attorney or other authorized person, medical care, freedom from harm or harassment, or privacy. The bill would prohibit an immigration detention facility from involuntarily placing a detainee in segregated housing because of his or her actual or perceived gender, gender identity, gender expression, or sexual orientation.

This bill would authorize the Attorney General or any district attorney or city attorney to bring a civil action against an immigration detention facility, an agent thereof, or a person acting on its behalf that violates a detainees rights, as specified.

The bill would provide that its provisions are severable.

Existing law generally regulates formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.

Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

This bill would would, commencing on January 1, 2018, prohibit a city, county, or a city and county, or a local law enforcement agency from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants in civil immigration proceedings for profit.

Existing law requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, as specified.

This bill would require a city, county, or city and county, or a local law enforcement agency that chooses to enter into a contract to detain immigrants in civil immigration proceedings to detain immigrants only pursuant to a contract that requires the immigration detention facility operator to adhere to specified standards.

Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges in all business establishments of every kind. Persons denied their rights under this act may obtain specified remedies, including treble damages.

This bill would provide that an immigration detention facility operator, as defined, an agent thereof, or a person acting on its behalf, shall not deprive an immigrant detainee in civil immigration proceedings of specified rights, including access to an attorney or other authorized person, medical care, freedom from harm or harassment, or privacy. The bill would require prohibit an immigration detention facility to ensure appropriate medical treatment when a detainee is transferred and prohibit involuntary placement of from involuntarily placing a detainee in segregated housing because of his or her actual or perceived gender, gender identity, gender expression, or sexual orientation. The bill would also require an immigration detention facility to have a Legal Orientation Program, as specified, or other similar program to provide comprehensive explanations about immigration court procedure and other legal information to unrepresented immigration detainees.

This bill would authorize the Attorney General or any district attorney or city attorney to bring a civil action against an immigration detention facility, an agent thereof, or a person acting on its behalf that violates a detainees rights, as specified. The bill would also authorize a person who has been injured by a failure to comply with these provisions, or with the Unruh Civil Rights Act, to bring a civil action for damages, injunctive relief, and other equitable relief.

The bill would provide that its provisions are severable.

Existing law generally regulates formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.

Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

This bill would prohibit a city, county, or a city and county, or a local law enforcement agency from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants in civil immigration proceedings for profit.

Existing law requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, as specified.

This bill would require a city, county, or city and county, or a local law enforcement agency that chooses to enter into a contract to detain immigrants in civil immigration proceedings to detain immigrants only pursuant to a contract that requires the immigration detention facility operator to adhere to specified standards.

Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges in all business establishments of every kind. Persons denied their rights under this act may obtain specified remedies, including treble damages.

This bill would provide that an immigration detention facility operator, as defined, an agent thereof, or a person acting on its behalf, shall not deprive an immigrant detainee in civil immigration proceedings of specified rights, including access to an attorney or other authorized person, medical care, freedom from harm or harassment, or privacy. The bill would require an immigration detention facility to ensure appropriate medical treatment when a detainee is transferred and prohibit involuntary placement of a detainee in segregated housing because of his or her actual or perceived gender, gender identity, gender expression, or sexual orientation. The bill would also require an immigration detention facility to have a Legal Orientation Program, as specified, or other similar program to provide comprehensive explanations about immigration court procedure and other legal information to unrepresented immigration detainees.

This bill would authorize the Attorney General or any district attorney or city attorney to bring a civil action against an immigration detention facility, an agent thereof, or a person acting on its behalf that violates a detainees rights, as specified. The bill would also authorize a person who has been injured by a failure to comply with these provisions, or with the Unruh Civil Rights Act, to bring a civil action for damages, injunctive relief, and other equitable relief.

The bill would provide that its provisions are severable.

Existing law generally regulates formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.

Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

This bill would prohibit the board of supervisors of a city, county, or a legislative body of a city or a city and county, or a local law enforcement entity agency from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants for profit, on behalf of the United States Department of Homeland Security, the United States Marshals Service, or the federal Office of Refugee Resettlement. in civil immigration proceedings for profit.

Existing law requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, as specified.

This bill would require an immigrant detention facility that a city, county, or city and county, or a local law enforcement agency that chooses to enter into a contract to detain immigrants in civil immigration proceedings to detain immigrants only pursuant to a contract that requires the entity contracting with the Department of Homeland Security or other federal agency immigration detention facility operator to adhere to specified standards.

Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges in all business establishments of every kind. Persons denied their rights under this act may obtain specified remedies, including treble damages.

This bill would provide that an immigrant immigration detention facility, facility operator, as defined, an agent thereof, or a person acting on its behalf, shall not deprive an immigrant detainee in civil immigration proceedings of specified rights, including access to an attorney or other authorized person, medical care, freedom from harm or harassment, or privacy. The bill would require an immigrant immigration detention facility to ensure appropriate medical treatment when a detainee is transferred and prohibit involuntary placement of a detainee in segregated housing because of his or her actual or perceived gender, gender identity, gender expression, or sexual orientation. The bill would also require an immigration detention facility to have a Legal Orientation Program, as specified, or other similar program to provide comprehensive explanations about immigration court procedure and other legal information to unrepresented immigration detainees.

This bill would authorize the Attorney General or any district attorney or city attorney to bring a civil action against an immigrant immigration detention facility, an agent thereof, or a person acting on its behalf that violates a detainees rights, as specified. The bill would also authorize a person whose rights have been violated, as described above, or under who has been injured by a failure to comply with these provisions, or with the Unruh Civil Rights Act, to bring a civil action for damages, injunctive relief, and other equitable relief.

The bill would provide that its provisions are severable.

Existing law generally regulates formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.

Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

This bill would prohibit the board of supervisors or sheriff of a county or a legislative body or chief of police of a city or a city and county from entering into or renewing a contract to detain immigrants for profit, on behalf of the Department of Homeland Security, with a private corporation, contractor, or vendor.

Existing law requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, as specified.

Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges.

This bill would require a city, county, or city and county that holds immigrants in a local correctional facility or local detention facility on behalf of the Department of Homeland Security to do so only pursuant to a contract that requires it to adhere to the standards for detaining those individuals described in the 2011 Operations Manual ICE Performance-Based National Detention Standards.

This bill would specify that no immigrant detention facility or agent thereof shall deprive an immigrant of specified rights, including access to an attorney, medication, or freedom from harassment. The bill would require an immigrant detention facility to ensure appropriate medical treatment when a detainee is transferred and prohibit the use of solitary confinement to regularly house or detain an individual because he or she is a member of the lesbian, gay, bisexual, transgender, or queer communities. Because the bill would require local agencies to perform additional duties, the bill would impose a state-mandated local program.

This bill would authorize the Attorney General or any district attorney or city attorney to bring a civil action against an immigrant detention facility or an agent thereof that violates a detainees rights, as specified. The bill would also authorize a person whose rights have been violated, as described above, or under the Unruh Civil Rights Act, to bring a civil action for damages, injunctive relief, and other equitable relief against an immigrant detention facility or agent thereof.

The bill would provide that its provisions are severable.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

 VETO  

Bill No: SB 1289

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 4/19/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

SENATE FLOOR: 24-14, 6/1/16

AYES: Allen, Beall, Block, De León, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk

NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak

NO VOTE RECORDED: Galgiani, Runner

SENATE FLOOR: 25-13, 8/30/16

AYES: Allen, Beall, Block, De León, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk

NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak

NO VOTE RECORDED: Galgiani

ASSEMBLY FLOOR: 51-28, 8/23/16 - See last page for vote

SUBJECT:

SOURCE: Community Initiatives for Visiting Immigrants in Confinement

Immigrant Legal Resource Center

DIGEST: This bill prohibits local law enforcement agencies and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill requires that immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill further requires that immigrants in detention be provided other legal rights, as specified. This bill authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards or violations of other legal rights created by this bill.

ANALYSIS:

Existing law:

1. Provides that everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. Protects asylum seekers by prohibiting the federal government from returning to their home countries people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a social group.
3. Provides that victims of certain crimes may obtain immigration relief through a Victim of Crime Visa (U-Visa) and victims of human trafficking may obtain immigration relief through a Victim of Human Trafficking Visa (T-Visa).
4. Provides immigration relief that relies on a state’s interest in the welfare of children and provides for Special Immigrant Juvenile Status where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country.
5. Establishes that the care and custody of unaccompanied minors is the responsibility of the Office of Refugee Resettlement in the Department of Health and Human Services instead of the Department of Homeland Security.
6. Holds that immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves are entitled to qualified legal representatives provided by the federal government for representation during all phases of their immigration proceedings, including appeals and custody hearings.

This bill:

1. Prohibits, as of January 1, 2018, local governments or local law enforcement from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor or vendor to detain immigrants in civil immigration proceedings for profit.
2. Provides that a city, county, city and county, or a local law enforcement agency that chooses to enter into a contract, renews a contract, or modifies a contract to extend the length of the contract, to detain immigrants in civil immigration proceedings, shall detain immigrants only pursuant to a contract that requires the immigration detention facility operator to adhere to the standards for detaining those individuals described in the 2011 Operations Manual Immigration and Customs Enforcement (ICE) Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
3. Makes clear that an immigration detention facility can exceed the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
4. Prohibits immigrant detention facilities, agents of immigration detention facility operators, or those acting on their behalf from depriving immigrant detainees: (a) access to legal representatives; (b) access to translation or interpreters; (c) medical care (which would still include and not be limited to, HIV medication and transition-related health care, and would still need to be provided even if an immigrant is likely to be released or deported); (d) freedom from harm or harassment; and (e) privacy.
5. Prohibits the involuntary placement of immigration detainees in segregated housing because of the detainee’s actual or perceived gender, gender identity, gender expression, or sexual orientation. This bill also requires that transgender and gender non-conforming immigration detainees be given the option to choose a housing placement consistent with their gender identity.
6. Authorizes the Attorney General, any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility operator, or its agent or person acting on its behalf violates rights created under this bill or the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
7. Requires that if a civil penalty is requested by the Attorney General, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual who has been injured.
8. Subjects any facility that detains an immigrant pursuant to a contract with a city, county, city and county, or a local law enforcement agency to the California Public Records Act.
9. Makes related legislative findings and declarations, includes definitions.

Background

In California, and around the country, for-profit detention facilities are increasingly relied upon to detain immigrants who are oftentimes eligible for Asylum, Special Immigrant Juvenile Status immigration relief, U-Visas, T-Visas, or other forms of immigration relief. Additionally, a few local government and local law enforcement entities choose to enter into agreements with federal immigration authorities to detain immigrants in their county or city jails on behalf of the federal immigration authorities.

For-profit detention facilities are accountable to their shareholders and not the people of the State of California. Oftentimes, immigrants in immigrant detention facilities are escaping persecution in their countries of origin and in need of special care due to their persecution or because they have suffered arduous journeys as unaccompanied children. Ensuring that immigrants are provided with the services they need to heal oftentimes is in contrast to corporate interests. Because these facilities are private, they routinely claim exemptions to the California’s Public Records Act and the federal Freedom of Information Act. Despite the lack of access to records through these acts, there have been reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for-profit immigrant detention facilities. Somewhat perversely, because immigration detention is technically a civil form of confinement, immigrants in immigrant detention facilities lack many of the safeguards of the criminal justice system, including access to counsel.

Local government and law enforcement entities that choose to contract with immigration authorities to detain immigrants are supposed to adhere to national immigration detention standards, promulgated by ICE regardless of whether they detain the immigrants in their local jails or contract their immigrant detention duties out to private for-profit corporations. But many detainees have reported experiencing deplorable conditions at city and county immigrant detention facilities in violation of the national standards. No meaningful enforcement mechanism currently exists to hold immigration detention facilities accountable, whether for-profit or run by local governmental agency, when they violate immigrant detainee’s rights. Various reports indicate that the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) detained immigrants have been extensively violated at both types of detention facilities.

This bill prohibits local law enforcement and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities and requires that all immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill creates legal rights for immigrants in detention, including but not limited to, access to legal representatives, access to translation or interpreters, medical care, freedom from harm or harassment, and privacy. In order to ensure that the national detention standards are complied with and that the legal rights of the immigrant detainees are respected, this bill includes an enforcement mechanism whereby the Attorney General, district attorneys, and city attorneys may bring suits against detention facilities for violations of the national detention standards and other legal rights created by this bill.

Comments

The author writes:

In 2011 ICE developed the Operations Performance-Based National Detention Standards, which lays out the basic health and safety standards detainees should receive while in detention. However, these standards are not codified and are unenforceable. There have been widespread reports of human right’s abuses in detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, overuse of solitary confinement, and even death. LGBT detainees have reported facing discrimination, harassment, and abuse due to their sexual orientation. In many of these instances, even the Department of Homeland Security has found these deaths were preventable. Tragically, the incidents often go unaddressed and victims have no recourse.

Private, for-profit immigration detention facilities present a host of problems. The facilities are not subject to the Freedom of Information Act and operate with little to no oversight. Many also operate under a perverse incentive, where they are guaranteed a minimum number of detainees in their facility at all times, ensuring their profits. For example in Adelanto Detention Facility in Adelanto, California, ICE is guaranteed 975 detainees at all times with a per diem rate of $111 per bed per day. Perversely, if the number of beds increases over 975, the per diem rate drops to $50 per day per bed. The private detention contracts are designed to incentivize filling the most beds at all times, regardless of public safety or their destructive effects on communities. Indeed, private companies make billions in profits every year from incarcerating mothers, fathers, children, and others in our broken immigration system.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee:

1. Attorney General: Potentially significant workload increase (GF) should the Attorney General choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. Additional workload would include the cost of additional staffing to complete the drafting of pleadings, discovery, and extensive legal research required for these cases. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually.
2. Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues.
3. Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met.
4. Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill.

SUPPORT: (Verified 10/19/16)

Community Initiatives for Visiting Immigrants in Confinement (co-source)

Immigrant Legal Resource Center (co-source)

A New Way of Life Re-entry

Alliance for Boys and Men of Color

American Immigration Lawyers’ Association

Asian Law Alliance

Asian Pacific Islander Legal Outreach

Aspire

California Immigrant Policy Center

California Immigrant Youth Justice Alliance

Catholic Charities of the East Bay

Center for Gender and Refugee Studies

Central American Resource Center of Northern California

Central American Resource Center-Los Angeles

Central Laboral de Graton

Coalition for Humane Immigrant Rights of Los Angeles

Community United Against Violence

Congregations Building Community

Dolores Street Community Services

East Bay Sanctuary Covenant

Ella Baker Center for Human Rights

Enlace

Familia Trans Queer Liberation Movement

Friends Committee on Legislation

Human Rights Watch

Immigrant Youth Coalition

Inland Empire Immigrant Youth Coalition

Interfaith Movement for Human Integrity

Jewish Family Services of Los Angeles

Just Cause/Causa Justa

Justice Now

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners with Children

Los Angeles LGBT Center

Marin Interfaith Alliance

Motivating Individual Leadership for Public Advancement

Mount Diablo Unitarian Universalist Church

National Immigration Law Center

Pangea Legal Services

PICO

Prison Law Office

San Diego Volunteer Lawyer Program

San Fernando Dream Team

San Joaquin Immigrant Youth Coalition

Services Immigrant Rights and Education Network

Silicon Valley Debug

Social Justice Collaborative

Transgender Law Center

TransLatin@

UC Irvine Law Clinic

Vital Immigrant Defense Advocacy and Services Incorporated

One individual

OPPOSITION: (Verified 10/19/16)

California Sheriffs Association

California State Association of Counties

City of Adelanto

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 1289 without my signature.

This bill prohibits local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities and requires that local detention facilities that house immigrant detainees adhere to the most recent federal standards.

I have been troubled by recent reports detailing unsatisfactory conditions and limited access to counsel in private immigration detention facilities. The Department of Homeland Security, however, is now considering whether private contracting should continue for immigrant detention, and if so under what conditions. Their recommendations are expected in November.

These actions indicate that a more permanent solution to this issue may be at hand. I urge the federal authorities to act swiftly.

ASSEMBLY FLOOR: 51-28, 8/23/16

AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Gray, Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Maienschein

Prepared by:

10/21/16 16:21:42

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 1289

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 4/19/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

SENATE FLOOR: 24-14, 6/1/16

AYES: Allen, Beall, Block, De León, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk

NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak

NO VOTE RECORDED: Galgiani, Runner

ASSEMBLY FLOOR: 51-28, 8/23/16 - See last page for vote

SUBJECT:

SOURCE: Community Initiatives for Visiting Immigrants in Confinement

Immigrant Legal Resource Center

DIGEST: This bill prohibits local law enforcement agencies and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill requires that immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill further requires that immigrants in detention be provided other legal rights, as specified. This bill authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards or violations of other legal rights created by this bill.

Assembly Amendments (1) remove the private right of action and attorney fees provisions; (2) remove the requirements related to the immigrant detainee’s transfer; (3) remove the legal orientation program requirement; (4) establish that the provision prohibiting local law enforcement agencies and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities becomes operative on January 1, 2018; and (5) make other conforming and nonsubstantive changes.

ANALYSIS:

Existing law:

1. Provides that everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. Protects asylum seekers by prohibiting the federal government from returning to their home countries people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a social group.
3. Provides that victims of certain crimes may obtain immigration relief through a Victim of Crime Visa (U-Visa) and victims of human trafficking may obtain immigration relief through a Victim of Human Trafficking Visa (T-Visa).
4. Provides immigration relief that relies on a state’s interest in the welfare of children and provides for Special Immigrant Juvenile Status where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country.
5. Establishes that the care and custody of unaccompanied minors is the responsibility of the Office of Refugee Resettlement in the Department of Health and Human Services instead of the Department of Homeland Security.
6. Holds that immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves are entitled to qualified legal representatives provided by the federal government for representation during all phases of their immigration proceedings, including appeals and custody hearings.

This bill:

1. Prohibits, as of January 1, 2018, local governments or local law enforcement from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor or vendor to detain immigrants in civil immigration proceedings for profit.
2. Provides that a city, county, city and county, or a local law enforcement agency that chooses to enter into a contract, renews a contract, or modifies a contract to extend the length of the contract, to detain immigrants in civil immigration proceedings, shall detain immigrants only pursuant to a contract that requires the immigration detention facility operator to adhere to the standards for detaining those individuals described in the 2011 Operations Manual Immigration and Customs Enforcement (ICE) Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
3. Makes clear that an immigration detention facility can exceed the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
4. Prohibits immigrant detention facilities, agents of immigration detention facility operators, or those acting on their behalf from depriving immigrant detainees: (a) access to legal representatives; (b) access to translation or interpreters; (c) medical care (which would still include and not be limited to, HIV medication and transition-related health care, and would still need to be provided even if an immigrant is likely to be released or deported); (d) freedom from harm or harassment; and (e) privacy.
5. Prohibits the involuntary placement of immigration detainees in segregated housing because of the detainee’s actual or perceived gender, gender identity, gender expression, or sexual orientation. This bill also requires that transgender and gender non-conforming immigration detainees be given the option to choose a housing placement consistent with their gender identity.
6. Authorizes the Attorney General, any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility operator, or its agent or person acting on its behalf violates rights created under this bill or the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
7. Requires that if a civil penalty is requested by the Attorney General, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual who has been injured.
8. Subjects any facility that detains an immigrant pursuant to a contract with a city, county, city and county, or a local law enforcement agency to the California Public Records Act.
9. Makes related legislative findings and declarations, includes definitions.

Background

In California, and around the country, for-profit detention facilities are increasingly relied upon to detain immigrants who are oftentimes eligible for Asylum, Special Immigrant Juvenile Status immigration relief, U-Visas, T-Visas, or other forms of immigration relief. Additionally, a few local government and local law enforcement entities choose to enter into agreements with federal immigration authorities to detain immigrants in their county or city jails on behalf of the federal immigration authorities.

For-profit detention facilities are accountable to their shareholders and not the people of the State of California. Oftentimes, immigrants in immigrant detention facilities are escaping persecution in their countries of origin and in need of special care due to their persecution or because they have suffered arduous journeys as unaccompanied children. Ensuring that immigrants are provided with the services they need to heal oftentimes is in contrast to corporate interests. Because these facilities are private, they routinely claim exemptions to the California’s Public Records Act and the federal Freedom of Information Act. Despite the lack of access to records through these acts, there have been reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for-profit immigrant detention facilities. Somewhat perversely, because immigration detention is technically a civil form of confinement, immigrants in immigrant detention facilities lack many of the safeguards of the criminal justice system, including access to counsel.

Local government and law enforcement entities that choose to contract with immigration authorities to detain immigrants are supposed to adhere to national immigration detention standards, promulgated by ICE regardless of whether they detain the immigrants in their local jails or contract their immigrant detention duties out to private for-profit corporations. But many detainees have reported experiencing deplorable conditions at city and county immigrant detention facilities in violation of the national standards. No meaningful enforcement mechanism currently exists to hold immigration detention facilities accountable, whether for-profit or run by local governmental agency, when they violate immigrant detainee’s rights. Various reports indicate that the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) detained immigrants have been extensively violated at both types of detention facilities.

This bill prohibits local law enforcement and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities and requires that all immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill creates legal rights for immigrants in detention, including but not limited to, access to legal representatives, access to translation or interpreters, medical care, freedom from harm or harassment, and privacy. In order to ensure that the national detention standards are complied with and that the legal rights of the immigrant detainees are respected, this bill includes an enforcement mechanism whereby the Attorney General, district attorneys, and city attorneys may bring suits against detention facilities for violations of the national detention standards and other legal rights created by this bill.

Comments

The author writes:

In 2011 ICE developed the Operations Performance-Based National Detention Standards, which lays out the basic health and safety standards detainees should receive while in detention. However, these standards are not codified and are unenforceable. There have been widespread reports of human right’s abuses in detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, overuse of solitary confinement, and even death. LGBT detainees have reported facing discrimination, harassment, and abuse due to their sexual orientation. In many of these instances, even the Department of Homeland Security has found these deaths were preventable. Tragically, the incidents often go unaddressed and victims have no recourse.

Private, for-profit immigration detention facilities present a host of problems. The facilities are not subject to the Freedom of Information Act and operate with little to no oversight. Many also operate under a perverse incentive, where they are guaranteed a minimum number of detainees in their facility at all times, ensuring their profits. For example in Adelanto Detention Facility in Adelanto, California, ICE is guaranteed 975 detainees at all times with a per diem rate of $111 per bed per day. Perversely, if the number of beds increases over 975, the per diem rate drops to $50 per day per bed. The private detention contracts are designed to incentivize filling the most beds at all times, regardless of public safety or their destructive effects on communities. Indeed, private companies make billions in profits every year from incarcerating mothers, fathers, children, and others in our broken immigration system.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee:

1. Attorney General: Potentially significant workload increase (GF) should the Attorney General choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. Additional workload would include the cost of additional staffing to complete the drafting of pleadings, discovery, and extensive legal research required for these cases. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually.
2. Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues.
3. Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met.
4. Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill.

SUPPORT: (Verified 8/21/16)

Community Initiatives for Visiting Immigrants in Confinement (co-source)

Immigrant Legal Resource Center (co-source)

A New Way of Life Re-entry

Alliance for Boys and Men of Color

American Immigration Lawyers’ Association

Asian Law Alliance

Asian Pacific Islander Legal Outreach

Aspire

California Immigrant Policy Center

California Immigrant Youth Justice Alliance

Catholic Charities of the East Bay

Center for Gender and Refugee Studies

Central American Resource Center of Northern California

Central American Resource Center-Los Angeles

Central Laboral de Graton

Coalition for Humane Immigrant Rights of Los Angeles

Community United Against Violence

Congregations Building Community

Dolores Street Community Services

East Bay Sanctuary Covenant

Ella Baker Center for Human Rights

Enlace

Familia Trans Queer Liberation Movement

Friends Committee on Legislation

Human Rights Watch

Immigrant Youth Coalition

Inland Empire Immigrant Youth Coalition

Interfaith Movement for Human Integrity

Jewish Family Services of Los Angeles

Just Cause/Causa Justa

Justice Now

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners with Children

Los Angeles LGBT Center

Marin Interfaith Alliance

Motivating Individual Leadership for Public Advancement

Mount Diablo Unitarian Universalist Church

National Immigration Law Center

Pangea Legal Services

PICO

Prison Law Office

San Diego Volunteer Lawyer Program

San Fernando Dream Team

San Joaquin Immigrant Youth Coalition

Services Immigrant Rights and Education Network

Silicon Valley Debug

Social Justice Collaborative

Transgender Law Center

TransLatin@

UC Irvine Law Clinic

Vital Immigrant Defense Advocacy and Services Incorporated

One individual

OPPOSITION: (Verified 8/21/16)

California State Sheriffs’ Association

California State Association of Counties

City of Adelanto

ASSEMBLY FLOOR: 51-28, 8/23/16

AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Gray, Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Maienschein

Prepared by:

8/29/16 10:34:39

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1289

Author:(Lara)

As Amended Ver:August 19, 2016

Majority vote

SENATE VOTE: 24-14

SUMMARY: Prohibits local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities, starting January 1, 2018, and requires these facilities to uphold national standards for humane treatment of detainees. Specifically, this bill:

1. Prohibits a city, county, city and county, or a local law enforcement agency, starting January 1, 2018, from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants in civil immigration proceedings for profit.
2. Provides that when an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with the Department of Homeland Security (DHS) or other federal agency to adhere to the standards for detaining those individuals described in the 2011 Operations Manual Immigration and Customs Enforcement (ICE) Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
3. Provides that any facility that detains an immigrant pursuant to a contract with a city, county, city and county, or a local law enforcement agency is subject to the California Public Records Act (Chapter 3.5 (commencing with Government Code Section 6250) of Division 7 of Title 1 of the).
4. Prohibits immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees from: a) access to an attorney or other authorized legal representative; b) access to translation or interpreters; c) medical care; d) freedom from harm or harassment; and e) privacy.
5. Requires immigrant detention facilities to do all of the following when an immigrant detainee is transferred: a) ensure that all medical records of the detainee are promptly transferred to ICE at the time of transfer or promptly provided to the facility to which the detainee is transferred; b) ensure that all detainees receive all medications needed while in transit; c) ensure that a detainee's treatment plan is received by the medical personnel at the facility to which the detainee is being transferred; and d) ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer.
6. Prohibits the involuntary placement of immigrant detainees in segregated housing because of the detainee's actual or perceived gender, gender identity, gender expression, or sexual orientation.
7. Clarifies that that an immigrant detention facility can provide more rights than are required under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
8. Authorizes the Attorney General (AG), any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
9. Requires that if a civil penalty is requested by the AG, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual whose rights are determined to be violated.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Attorney General (AG): Potentially significant workload increase to General Fund (GF), should the AG choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. Additional workload would include the cost of additional staffing to complete the drafting of pleadings, discovery, and extensive legal research required for these cases. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually.
2. Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues.
3. Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met.
4. Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill.

COMMENTS: This bill, sponsored by Community Initiatives for Visiting Immigrants in Confinement (CIVIC), seeks to prohibit local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities, and requires these facilities to uphold national standards for humane treatment of detainees, enforceable by a private right of action. According to the author: "There have been consistent reports of human rights abuses in (these) detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, and overuse of solitary confinement, and even death. SB 1289 will ensure that immigrants' rights are protected and there is an opportunity for them to seek redress when they have not been upheld."

Immigrant detention facilities in California. Local governments and local law enforcement entities are not required to detain immigrants on behalf of federal immigration authorities. The ones in California that decide to detain immigrants do so by choice. Federal immigration authorities, either United States (U.S.) ICE or the U.S. Marshals, enter into Intergovernmental Service Agreements (IGSAs) with local governments or local law enforcement whereby the local entity agrees to detain immigrants on behalf of the federal government. Local governments or local law enforcement can then choose to detain the immigrants in their own facilities or subcontract with for-profit detention facilities instead.

According to figures provided by CIVIC, 62% of all ICE immigration detention beds in the U.S. are operated by for-profit prison corporations, up from 49% in 2009. They contend that operators of these private detention facilities make billions in profit each year from holding undocumented persons, while the California county and city partners in these intergovernmental service agreements experience little economic gain. There are currently four for-profit detention facilities in California, located in the cities of Adelanto, Bakersfield, Calexico, and San Diego. According to the author, these four privately run facilities hold almost 85% of detainees statewide, approximately 3,700 people, with the rest held in city and county jail facilities that contract with federal immigration authorities for the detention of immigrants, including the Yuba County Jail (Marysville), Rio Consumnes Correctional Center (Elk Grove), West County Detention Facility (Richmond), James Musick Facility (Irvine), Theo Lacy Facility (Orange), and the Santa Ana City Jail.

Private immigrant detention facilities operate with no mechanism for public oversight. The author contends that because private for-profit detention facilities operate with little to no oversight, they are essentially accountable only to their shareholders and not the people of the California. For-profit detention facilities claim exemptions to the public disclosure requirements under the Freedom of Information Act (FOIA) (5 United States Code (U.S.C.) Section 552) because they are private corporations, which makes the potentially unlawful conduct occurring within the facility hidden from discovery. For example, a 2013 article in Forbes noted that "if serious questions arise about…the 16,500 federal immigration detainees held in privately-operated facilities under contracts with the U.S. Department of Homeland Security, there's no legal remedy in place forcing those questions to be answered." (Matt Stroud, Private Prisons Are Exempted From Federal Disclosure Laws; Advocates Say that Should Change, (February 7, 2013) Forbes.)

As a result, abuse and inhumane treatment of detainees is reportedly tolerated and persists in these facilities because the public has no dependable mechanism for getting information about what is going on behind closed doors. Journalists and advocacy groups like CIVIC are occasionally able to document problems and incidents of mistreatment at these facilities, but only with the cooperation of the facilities themselves. The public policy of California is certainly not to allow the abuse of people who are detained by the government in facilities where there is no transparency or oversight. Accordingly, starting January 1, 2018, this bill would prohibit local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities to detain immigrants. It should be noted that the Legislature lacks authority to prohibit private immigrant detention facility operators from contracting directly with federal authorities to hold immigrants, and this bill does not attempt to preclude those contracting practices.

Private detention facilities similarly claim an exemption to the California Public Records Act (CPRA) (Government Code Sec 6250 et seq). CIVIC notes that despite numerous reports of abuses of detainees at for-profit immigrant detention facilities, it is difficult to obtain information about these facilities because the law gives complete discretion to the private facility to allow the government to disclose any document pertaining to the IGSA, pursuant to a FOIA request. As recently amended in the Assembly, this bill establishes that any facility that detains an immigrant pursuant to a contract with a city, county, city and county, or a local law enforcement agency shall be subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).

Despite lack of transparency, advocates have documented patterns of widespread abuse of immigrants held in private detention facilities. The bill is supported by a host of immigrant advocates, watchdog organizations, and human rights advocates who report widespread incidents of abuse and mistreatment of immigrants held in private detention facilities in California, as well as in facilities in other states operated by the same companies that operate facilities in California. In its report "Abuse in Adelanto: An Investigation into a California Town's Immigration Jail," CIVIC details a number of disturbing examples of prolonged detention, medical abuse and neglect, violations of religious freedom, attempted suicides, and the negligent deaths of detainees—all at the Adelanto facility alone. The National Immigrant Justice Center reports that among LGBT (Lesbian, Gay, Bisexual, and Transgender) individuals in the detained population, there are higher accounts of the use of solitary confinement, sexual abuse, and poor medical care in immigration detention facilities. (See National Immigrant Justice Center, Stop Abuse of Detained LGBT Immigrants; available at: http://www.immigrantjustice. org/stop-abuse-detained-lgbt-immigrants.) To address these issues, the bill prohibits immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees from medical care, freedom from harm or harassment, and privacy. The bill also prohibits the involuntary placement of immigrant detainees in segregated housing because of the detainee's actual or perceived gender, gender identity, gender expression, or sexual orientation.

Codifying the national standards for basic care in immigrant detention facilities, promulgated by ICE for facilities it contracts with. ICE has promulgated a series of national standards laying out the requirements for basic care in immigrant detention facilities, known as the Performance-Based National Detention Standards 2011 as corrected and clarified in February 2013 (Hereafter, Performance-Based National Detention Standards (PBNDS) 2011). ICE uses national detention standards to govern conditions of confinement in its detention facilitates established through contracts with those facilities. (United States Government Accountability Office, "Immigration Detention" Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse, p. 12 (November 2013), Available at: http://www.gao.gov/assets/660/659145.pdf) Immigration detention facilities agree to follow these standards pursuant to the IGSAs between the federal government and the local governments, including when the local entities contract with for-profit corporations.

This bill is necessary, proponents contend, to address the fact that although the PBNDS 2011 standards may be agreed to under the contract, the standards are unenforceable because they are not required to be adhered to under any federal or state law. Proponents note that these standards are not legally binding, and have only been implemented at select facilities that have voluntarily elected to modify their operating agreements with ICE. An additional federal policy, ICE Directive 11065.1, was created to govern the placement of immigrant detainees in solitary confinement. Unfortunately, this policy directive is equally unenforceable by immigrant detainees, as there is no law requiring it to be followed.

Accordingly, this bill seeks to create enforceable rights for immigrant detainees centered on the national standards described above. The bill provides that when an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with DHS or other federal agency to adhere to the PBNDS 2011 standards as well as ICE Directive 11065.1. The bill makes clear that, as a policy matter, every immigrant detention facility in California should be subject to the same national standards for the detention of immigrants, including private detention facilities contracted with local governments. Mandating that private immigration detention facilities in California meet national standards is intended to prevent and reduce patterns of abuse that have been documented in these facilities.

This bill allows enforcement of treatment standards by public prosecution. This bill would require that immigrant detention facilities adhere to the PBNDS 2011 standards and ICE Directive 11065.1, and other rights granted by this bill. Under this bill, the AG, any district attorney, or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, and also allows the prosecutor to seek a civil penalty of $25,000, as specified, when an immigrant detention facility deprives an immigrant detainee of their rights created under this bill or rights under the PBNDS 2011 standards or ICE Directive 11065.1. Recent Assembly amendments remove authority for enforcement by an immigrant detainee through a private right of action.

Opposition arguments. The California State Association of Counties (CSAC) opposes this bill and any legislation that would limit a county's authority to contract with a facility that detains offenders whether they are immigrants, felons, or misdemeanants. CSAC contends that "Almost half of California's county jails have some sort of capacity order limiting the number of offenders they can hold before they must be released because of overcrowding. This bill ties local law enforcement's hands and increases the possibility of litigation."

The bill is also opposed by the California State Sheriffs' Association (CSSA), who believes that the bill inappropriately inserts the state into matters that are governed by federal authorities. CSSA states "Given the fact that the federal government has occupied the field of immigration enforcement, it is certainly possible that this measure would be preempted by federal law." In response, the author states, "This bill is not about immigration enforcement, this is about ensuring state standards for treating people humanely. The state is fully within its jurisdiction to assert higher standards of care for detainees being held in our state. Regardless, the facilities in California are contracting with local governments, which the state has purview over."

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0004621

SENATE THIRD READING

STR Bill Id:SB 1289

Author:(Lara)

As Amended Ver:June 30, 2016

Majority vote

SENATE VOTE: 24-14

SUMMARY: Prohibits local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities, and requires these facilities to uphold national standards for humane treatment of detainees, enforceable by a private right of action. Specifically, this bill:

1. Prohibits a city, county, city and county, or a local law enforcement agency from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants in civil immigration proceedings for profit.
2. Provides that when an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with the Department of Homeland Security (DHS) or other federal agency to adhere to the standards for detaining those individuals described in the 2011 Operations Manual Immigration and Customs Enforcement (ICE) Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
3. Prohibits immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees from: a) access to an attorney or other authorized legal representative; b) access to translation or interpreters; c) medical care; d) freedom from harm or harassment; and e) privacy. Clarifies that medical care, includes but is not limited to, HIV (human immunodeficiency virus) medication and transition-related health care, and further prohibits the denial of medical care on the basis that an immigrant is likely to be released or deported.
4. Requires immigrant detention facilities to have a Legal Orientation Program, as specified, that includes an orientation on immigration removal proceedings and forms of relief, distribution of self-help materials, provision of private and individual consultations with unrepresented detainees to discuss their cases, and referrals to pro bono legal services.
5. Requires immigrant detention facilities to do all of the following when an immigrant detainee is transferred: a) ensure that all medical records of the detainee are promptly transferred to ICE at the time of transfer or promptly provided to the facility to which the detainee is transferred; b) ensure that all detainees receive all medications needed while in transit; c) ensure that a detainee's treatment plan is received by the medical personnel at the facility to which the detainee is being transferred; and d) ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer.
6. Prohibits the involuntary placement of immigrant detainees in segregated housing because of the detainee's actual or perceived gender, gender identity, gender expression, or sexual orientation.
7. Clarifies that that an immigrant detention facility can provide more rights than are required under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
8. Authorizes the Attorney General (AG), any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
9. Requires that if a civil penalty is requested by the AG, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual whose rights are determined to be violated.
10. Authorizes any individual who has been deprived of his or her rights to bring a civil action for damages, including, but not limited to, damages under Section 52 of the Civil Code, injunctive and other appropriate equitable relief, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1.
11. Allows a court to award the petitioner or plaintiff reasonable attorney's fees and costs in addition to any damages, injunction, or other equitable relief.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Attorney General (AG): Potentially significant workload increase to General Fund (GF), should the AG choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. Additional workload would include the cost of additional staffing to complete the drafting of pleadings, discovery, and extensive legal research required for these cases. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually.
2. Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues.
3. Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met.
4. Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill.

COMMENTS: This bill, sponsored by Community Initiatives for Visiting Immigrants in Confinement (CIVIC), seeks to prohibit local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities, and requires these facilities to uphold national standards for humane treatment of detainees, enforceable by a private right of action. According to the author: "There have been consistent reports of human rights abuses in (these) detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, and overuse of solitary confinement, and even death. SB 1289 will ensure that immigrants' rights are protected and there is an opportunity for them to seek redress when they have not been upheld."

Immigrant detention facilities in California. Local governments and local law enforcement entities are not required to detain immigrants on behalf of federal immigration authorities. The ones in California that decide to detain immigrants do so by choice. Federal immigration authorities, either United States (U.S.) ICE or the U.S. Marshals, enter into Intergovernmental Service Agreements (IGSAs) with local governments or local law enforcement whereby the local entity agrees to detain immigrants on behalf of the federal government. Local governments or local law enforcement can then choose to detain the immigrants in their own facilities or subcontract with for-profit detention facilities instead.

According to figures provided by CIVIC, 62% of all ICE immigration detention beds in the U.S. are operated by for-profit prison corporations, up from 49% in 2009. They contend that operators of these private detention facilities make billions in profit each year from holding undocumented persons, while the California county and city partners in these intergovernmental service agreements experience little economic gain. There are currently four for-profit detention facilities in California, located in the cities of Adelanto, Bakersfield, Calexico, and San Diego. According to the author, these four privately run facilities hold almost 85% of detainees statewide, approximately 3,700 people, with the rest held in city and county jail facilities that contract with federal immigration authorities for the detention of immigrants, including the Yuba County Jail (Marysville), Rio Consumnes Correctional Center (Elk Grove), West County Detention Facility (Richmond), James Musick Facility (Irvine), Theo Lacy Facility (Orange), and the Santa Ana City Jail.

Private immigrant detention facilities operate with no mechanism for public oversight. The author contends that because private for-profit detention facilities operate with little to no oversight, they are essentially accountable only to their shareholders and not the people of the California. For-profit detention facilities claim exemptions to the public disclosure requirements under the Freedom of Information Act (FOIA) (5 United States Code (U.S.C.) Section 552) because they are private corporations, which makes the potentially unlawful conduct occurring within the facility hidden from discovery. For example, a 2013 article in Forbes noted that "if serious questions arise about…the 16,500 federal immigration detainees held in privately-operated facilities under contracts with the U.S. Department of Homeland Security, there's no legal remedy in place forcing those questions to be answered." (Matt Stroud, Private Prisons Are Exempted From Federal Disclosure Laws; Advocates Say that Should Change, (February 7, 2013) Forbes.)

The private detention facilities similarly claim an exemption to the California Public Records Act (CPRA) (Government Code Sec 6250 et seq). CIVIC notes that despite numerous reports of abuses of detainees at for-profit immigrant detention facilities, it is difficult to obtain information about these facilities because the law gives complete discretion to the private facility to allow the government to disclose any document pertaining to the IGSA, pursuant to a FOIA request.

As a result, abuse and inhumane treatment of detainees is reportedly tolerated and persists in these facilities because the public has no dependable mechanism for getting information about what is going on behind closed doors. Journalists and advocacy groups like CIVIC are occasionally able to document problems and incidents of mistreatment at these facilities, but only with the cooperation of the facilities themselves. The public policy of California is certainly not to allow the abuse of people who are detained by the government in facilities where there is no transparency or oversight. Accordingly, this bill would prohibit local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities to detain immigrants. It should be noted that the Legislature lacks authority to prohibit private immigrant detention facility operators from contracting directly with federal authorities to hold immigrants, and this bill does not attempt to preclude those contracting practices.

Despite lack of transparency, advocates have documented patterns of widespread abuse of immigrants held in private detention facilities. The bill is supported by a host of immigrant advocates, watchdog organizations, and human rights advocates who report widespread incidents of abuse and mistreatment of immigrants held in private detention facilities in California, as well as in facilities in other states operated by the same companies that operate facilities in California. In its report "Abuse in Adelanto: An Investigation into a California Town's Immigration Jail," CIVIC details a number of disturbing examples of prolonged detention, medical abuse and neglect, violations of religious freedom, attempted suicides, and the negligent deaths of detainees—all at the Adelanto facility alone. The National Immigrant Justice Center reports that among LGBT (Lesbian, Gay, Bisexual, and Transgender) individuals in the detained population, there are higher accounts of the use of solitary confinement, sexual abuse, and poor medical care in immigration detention facilities. (See National Immigrant Justice Center, Stop Abuse of Detained LGBT Immigrants; available at: http://www.immigrantjustice. org/stop-abuse-detained-lgbt-immigrants.)

To address these issues, the bill prohibits immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees from medical care, freedom from harm or harassment, and privacy. The bill provides that medical care includes HIV medication and transition-related health care, and further prohibits the denial of medical care on the basis that an immigrant is likely to be released or deported. Among other things, the bill requires immigrant detention facilities to: 1) ensure that all medical records of the detainee are promptly transferred to ICE at the time of transfer or promptly provided to the facility to which the detainee is transferred; 2) ensure that all detainees receive all medications needed while in transit; 3) ensure that a detainee's treatment plan is received by the medical personnel at the facility to which the detainee is being transferred; and 4) ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer. The bill also prohibits the involuntary placement of immigrant detainees in segregated housing because of the detainee's actual or perceived gender, gender identity, gender expression, or sexual orientation.

Lack of access to legal representation and telephone communication. Because immigration proceedings are civil matters, not criminal, detainees have fewer rights afforded to them than criminal defendants, including the right to an attorney. CIVIC reports, for example, that of the 89 people detained at Adelanto that it monitored over a six-month period, only 12.3% had legal representation—below the already low national average of 16% (Abuse in Adelanto: An Investigation into a California Town's Immigration Jail (October 2015); CIVIC and Detention Watch Network.) Because most detainees go completely without legal representation, it is essential that they have access to a law library or telephone communications where they can communicate with advocates or family members outside the center who can arrange assistance. Even where detainees at Adelanto had legal representation, CIVIC reported the difficulties that these people experienced due to obstructive actions taken by facility staff. The lack of access to legal representation is even more tragic because many detainees in custody may, in fact, qualify to remain in the U.S., but are instead deported because they were never able to obtain the assistance of legal counsel.

To address these issues, the bill requires immigrant detention facilities to have a Legal Orientation Program, as specified, that includes an orientation on immigration removal proceedings and forms of relief, distribution of self-help materials, provision of private and individual consultations with unrepresented detainees to discuss their cases, and referrals to pro bono legal services. In addition, the bill specifically prohibits immigrant detention facilities from depriving immigrant detainees from access to an attorney or other authorized legal representative, and access to translation or interpreters.

Codifying the national standards for basic care in immigrant detention facilities, promulgated by ICE for facilities it contracts with. ICE has promulgated a series of national standards laying out the requirements for basic care in immigrant detention facilities, known as the Performance-Based National Detention Standards 2011 as corrected and clarified in February 2013 (Hereafter, Performance-Based National Detention Standards (PBNDS) 2011). ICE uses national detention standards to govern conditions of confinement in its detention facilitates established through contracts with those facilities. (United States Government Accountability Office, "Immigration Detention" Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse, p. 12 (November 2013), Available at: http://www.gao.gov/assets/660/659145.pdf) Immigration detention facilities agree to follow these standards pursuant to the IGSAs between the federal government and the local governments, including when the local entities contract with for-profit corporations.

This bill is necessary, proponents contend, to address the fact that although the PBNDS 2011 standards may be agreed to under the contract, the standards are unenforceable because they are not required to be adhered to under any federal or state law. Proponents note that these standards are not legally binding, and have only been implemented at select facilities that have voluntarily elected to modify their operating agreements with ICE. An additional federal policy, ICE Directive 11065.1, was created to govern the placement of immigrant detainees in solitary confinement. Unfortunately, this policy directive is equally unenforceable by immigrant detainees, as there is no law requiring it to be followed.

Accordingly, this bill seeks to create enforceable rights for immigrant detainees centered on the national standards described above. The bill provides that when an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with DHS or other federal agency to adhere to the PBNDS 2011 standards as well as ICE Directive 11065.1. The bill makes clear that, as a policy matter, every immigrant detention facility in California should be subject to the same national standards for the detention of immigrants, including private detention facilities contracted with local governments. Mandating that private immigration detention facilities in California meet national standards is intended to prevent and reduce patterns of abuse that have been documented in these facilities.

This bill allows enforcement of treatment standards by an immigrant detainee through a private right of action, or by public prosecution. This bill would require that immigrant detention facilities adhere to the PBNDS 2011 standards and ICE Directive 11065.1, and other rights granted by this bill. Importantly, the bill will, for the first time, provide an enforcement mechanism to allow an immigrant detainee who has been deprived of his or her rights to bring a civil action for damages, including, but not limited to, damages under Civil Code Section 52, injunctive and other appropriate equitable relief, when an immigrant detention facility, or its agent or person acting on its behalf, deprives the detainee of their rights created under this bill, or rights specified in the PBNDS 2011 standards or ICE Directive 11065.1. This bill also allows enforcement by the AG, any district attorney, or city attorney to allow a civil action for injunctive and other appropriate equitable relief to be brought in the name of the people of the State of California, and also allows the prosecutor to seek a civil penalty of $25,000, as specified, when an immigrant detention facility deprives an immigrant detainee of their rights created under this bill or rights under the PBNDS 2011 standards or ICE Directive 11065.1.

Opposition arguments. The California State Association of Counties (CSAC) opposes this bill and any legislation that would limit a county's authority to contract with a facility that detains offenders whether they are immigrants, felons, or misdemeanants. CSAC contends that "Almost half of California's county jails have some sort of capacity order limiting the number of offenders they can hold before they must be released because of overcrowding. This bill ties local law enforcement's hands and increases the possibility of litigation."

The bill is also opposed by the California State Sheriffs' Association (CSSA), who believes that the bill inappropriately inserts the state into matters that are governed by federal authorities. CSSA states "Given the fact that the federal government has occupied the field of immigration enforcement, it is certainly possible that this measure would be preempted by federal law." In response, the author states, "This bill is not about immigration enforcement, this is about ensuring state standards for treating people humanely. The state is fully within its jurisdiction to assert higher standards of care for detainees being held in our state. Regardless, the facilities in California are contracting with local governments, which the state has purview over."

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0003991

Date of Hearing: August 3, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 1289

Author:(Lara) – As Amended Ver:June 30, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill prohibits local governments and law enforcement agencies from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill would require that immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill further requires that immigrants in detention be provided other legal rights, as specified.

This bill authorizes a private right of action against immigrant detention facilities and their agents for violations of the national detention standards or violations of the other rights created by this bill, and authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards or violations of other legal rights created by this bill.

FISCAL EFFECT:

1. Attorney General (AG): Potentially significant workload increase (GF) should the AG choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. Additional workload would include the cost of additional staffing to complete the drafting of pleadings, discovery, and extensive legal research required for these cases. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually.
2. Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues.
3. Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met.
4. Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill.

COMMENTS:

1. Purpose. According to the author, "U.S. Immigration & Customs Enforcement (ICE) contracts with private companies to run detention facilities to hold immigrants, including undocumented people, asylum-seekers, long-time green card holders, and others who are awaiting their immigration hearings. There have been consistent reports of human rights abuses in detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, and overuse of solitary confinement, and even death.

"This bill will prohibit local governments from contracting with private companies to detain immigrants for profit. This bill will also require detention facilities to meet the basic standards laid out by ICE’s 2011 Performance-Based National Detention Standards and authorize individuals to bring a civil action against a facility in the event that their rights are violated. This bill will ensure that immigrants’ rights are protected and there is an opportunity for them to seek redress when they have not been upheld."

1. Background. Local governments and local law enforcement entities are not required to detain immigrants on behalf of federal immigration authorities. The ones in California that decide to detain immigrants do so by choice. Federal immigration authorities, either ICE or the U.S. Marshals, enter into Intergovernmental Service Agreements (IGSAs) with local governments or local law enforcement whereby the local entity agrees to detain immigrants on behalf of the federal government. Local governments or local law enforcement can then choose to detain the immigrants in their own facilities or subcontract with for-profit detention facilities instead.

Local government and law enforcement entities that choose to contract with immigration authorities to detain immigrants must adhere to national immigration detention standards, promulgated by ICE regardless of whether they detain the immigrants in their local jails or contract their immigrant detention duties out to private for-profit corporations. But many detainees have reported experiencing deplorable conditions at city and county immigrant detention facilities in violation of the national standards. No meaningful enforcement mechanism currently exists to hold immigration detention facilities accountable, whether for-profit or run by local governmental agency, when they violate immigrant detainees’ rights.

In California, and around the country, for-profit detention facilities are increasingly relied upon to detain immigrants. Data indicates that 62% of all ICE immigration detention beds in the U.S. are operated by for-profit prison corporations, up from 49% in 2009. There are currently four for-profit detention facilities in California:

1. ICE contracts with the City of Adelanto, who in turn contracts with GEO Group to detain immigrants at the Adelanto Detention Facility (Adelanto).
2. ICE contracts with the City of McFarland, who in turn contracts with GEO Group to detain immigrants at the Mesa Verde Detention Facility (Bakersfield).
3. ICE contract with the City of Holtville, who in turn contracts with Management & Training Corp. (MTC) to detain immigrants at the Imperial Regional Detention Facility. (Calexico).
4. U.S. Marshals contract with Corrections Corporation of America (CCA) to detain immigrants at the Otay Detention Facility (San Diego).

According to the author, these four privately run facilities hold almost 85% of detainees statewide, approximately 3,700 people, with the rest held in county jail facilities that contract with federal immigration authorities. Specifically, ICE and the U.S. Marshals have intergovernmental service agreements with four counties, for the detention of immigrants at the Yuba County Jail (Marysville), Rio Consumnes Correctional Center (Elk Grove), the West County Detention Facility (Richmond), James Musick Facility (Irvine), Theo Lacy Facility (Orange). Lastly, they contract with the City of Santa Ana to detain immigrants at the Santa Ana City Jail.

Because for-profit detention facilities are private, they routinely claim exemptions to the California’s Public Records Act and the federal Freedom of Information Act. Despite the lack of access to records through these acts, there have been reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for-profit immigrant detention facilities. Because immigration detention is technically a civil form of confinement, immigrants in immigrant detention facilities lack many of the safeguards of the criminal justice system, including access to counsel.

1. Arguments in Opposition. This bill is opposed by the California State Association of Counties (CSAC), which states, "CSAC opposes any legislation that would limit a county’s authority to contract with a facility that detains offenders whether they are immigrants, felons, or misdemeanants. Almost half of California’s county jails have some sort of capacity order limiting the number of offenders they can hold before they must be released because of overcrowding."

The bill is also opposed by the California State Sheriffs’ Association, which states:

When local correctional facilities house detained immigrants, they do so in coordination with the federal government, according to the laws and standards created by federal authorities. Additionally, state regulations provide minimum standards for all public detention facilities. We believe SB 1289 inappropriately inserts the state into matters that are appropriately governed by federal authorities. Given the fact that the federal government has occupied the field of immigration enforcement, it is certainly possible that this measure would be preempted by federal law. Additionally, by creating public and private rights of action for alleged violations of the federal guidelines and the bill’s standards, SB 1289 exposes local governments to state civil liability despite federal oversight and enforcement.

1. Prior Legislation.
2. AB 900 (Levine, Chapter 694, Statutes of 2015) allows youth aged 18-21 who have escaped violence and terror in Central America to come under the protection of a guardianship that can also help the youth obtain Special Immigrant Juvenile Status immigration relief.
3. SB 674 (de León, Chapter 721, Statutes of 2015) allows youth aged 18-21 who have escaped violence and terror in Central America to come under the protection of a guardianship that can also help the youth obtain Special Immigrant Juvenile Status immigration relief.
4. AB 1343 (Thurmond, Chapter 705, Statutes of 2015) requires defense counsel in criminal proceedings to provide accurate and affirmative advice and defense to immigrants to avoid unintended immigration consequences, like detention, deportation, and loss of citizenship eligibility.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: June 28, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 1289

Author:(Lara) – As Amended Ver:May 31, 2016

As Proposed to be Amended

SENATE VOTE: 24-14

SUBJECT: LAW ENFORCEMENT: IMMIGRATION

KEY ISSUES:

1. BECAUSE OF THE LACK OF PUBLIC OVERSIGHT AND ACCOUNTABILITY IN PRIVATE FACILitIES, SHOULD local governments and law enforcement agencies be prohibITed from contracting with companies that operate PRIVATE facilIties to detain immigrants in civil immigration proceedings for profit?
2. IN LIGHT OF REPORTED ABUSE OF IMMIGRANTS DETAINED IN SUCH FACILITIES, should immigration detention facilities in california that are operated by for-profit companies be required to uphold national minimum standards for the humane treatment of detainees, enforceable by a private right of action?

SYNOPSIS

Federal immigration authorities, the U.S. Immigration & Customs Enforcement (ICE) or the U.S. Marshals, enter into Intergovernmental Service Agreements (IGSAs) with local governments or local law enforcement whereby the local entity agrees to detain immigrants on behalf of the federal government. Local governments or local law enforcement can then choose to detain the immigrants in their own publicly-run facilities (i.e. county jails) or to subcontract with for-profit operators of private detention facilities instead. The author contends that because these private detention facilities operate with little to no public oversight and are not subject to public disclosure laws, such as the Freedom of Information Act, they are essentially accountable only to their shareholders and not the people of the state of California. As a result, abuse and inhumane treatment of detainees is reportedly tolerated and persists in these facilities because the public has no dependable mechanism for getting information about what is going on behind closed doors. To corroborate these claims, the Committee has received a number of reports and letters in support of this bill from immigrant advocates, watchdog organizations, and human rights advocates describing investigations that have uncovered widespread incidents of abuse and mistreatment of immigrants who are held in private detention facilities in California.

This bill, sponsored by Community Initiatives for Visiting Immigrants in Confinement (CIVIC), seeks to prohibit local governments and law enforcement from contracting with private companies that operate for-profit immigration detention facilities, and requires these facilities to uphold national standards for humane treatment of detainees, enforceable by a private right of action. These national standards were promulgated by ICE itself to govern conditions of confinement in its detention facilitates established through contracts with those facility operators, and are known as the Performance-Based National Detention Standards 2011 (aka "PBNDS 2011"). Among the standards codified by this bill are provisions that prohibit immigrant detainees from being deprived of access to an attorney or other authorized legal representative; access to translation or interpreters; medical care; freedom from harm or harassment; and privacy. The bill also creates a number of other protections and rights for immigrant detainees that would be equally enforceable under the bill.

This bill is needed, proponents contend, to address the fact that although the PBNDS 2011 standards may be agreed to under contracts between ICE and facilities, the standards are ultimately unenforceable because neither federal nor state law requires adherence to them. Accordingly, this bill would require that immigrant detention facilities adhere to the PBNDS 2011 standards and ICE Directive 11065.1, and other rights granted by this bill, and would, for the first time, provide a private right of action to allow an immigrant detainee who has been deprived of his or her rights to bring a civil action for damages. The Attorney General, district attorneys, and city attorneys would also be empowered to enforce the bill on behalf of the people. The bill is opposed by the CA State Association of Counties, the Sheriffs Association, and the City of Adelanto, a town in San Bernardino County that has a contract with the operator of one of the largest private detention facilities in the state. These opponents contend that the authority of counties and sheriffs to contract with private detention facilities should not be limited, and that there is already sufficient oversight by accrediting agencies to make a private right of action unnecessary. Proposed amendments to the bill are technical and simply reorganize the bill into a single section of the Civil Code.

SUMMARY: Prohibits local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities, and requires these facilities to uphold national standards for humane treatment of detainees, enforceable by a private right of action. Specifically, this bill:

1. Prohibits a city, county, city and county, or a local law enforcement agency from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants in civil immigration proceedings for profit.
2. Provides that when an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with DHS or other federal agency to adhere to the standards for detaining those individuals described in the 2011 Operations Manual Immigration and Customs Enforcement (ICE) Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
3. Prohibits immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees from: (a) access to an attorney or other authorized legal representative; (b) access to translation or interpreters; (c) medical care; (d) freedom from harm or harassment; and (e) privacy. Clarifies that medical care, includes but is not limited to, HIV medication and transition-related health care, and further prohibits the denial of medical care on the basis that an immigrant is likely to be released or deported.
4. Requires immigrant detention facilities to have a Legal Orientation Program, as specified, that includes an orientation on immigration removal proceedings and forms of relief, distribution of self-help materials, provision of private and individual consultations with unrepresented detainees to discuss their cases, and referrals to pro bono legal services.
5. Requires immigrant detention facilities to do all of the following when an immigrant detainee is transferred: (a) ensure that all medical records of the detainee are promptly transferred to ICE at the time of transfer or promptly provided to the facility to which the detainee is transferred; (b) ensure that all detainees receive all medications needed while in transit; (c) ensure that a detainee’s treatment plan is received by the medical personnel at the facility to which the detainee is being transferred; and (d) ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer.
6. Prohibits the involuntary placement of immigrant detainees in segregated housing because of the detainee’s actual or perceived gender, gender identity, gender expression, or sexual orientation.
7. Clarifies that that an immigrant detention facility can provide more rights than are required under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
8. Authorizes the Attorney General, any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
9. Requires that if a civil penalty is requested by the Attorney General, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual whose rights are determined to be violated.
10. Authorizes any individual who has been deprived of his or her rights to bring a civil action for damages, including, but not limited to, damages under Section 52 of the Civil Code, injunctive and other appropriate equitable relief, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
11. Allows a court to award the petitioner or plaintiff reasonable attorney’s fees and costs in addition to any damages, injunction, or other equitable relief.

EXISTING STATE LAW:

1. Permits the board of supervisors of any county to contract on behalf of the sheriff of that county, and the legislative body of any city may contract on behalf of the chief of police of that city, to provide supplemental law enforcement services to specified entities under certain conditions, including to private individuals or private entities to preserve the peace at special events or occurrences that happen on an occasional basis. (Government Code 53069.8 (a).)
2. Requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, which standards shall include, but not be limited to, the following areas: health and sanitary conditions, fire and life safety, security, rehabilitation programs, recreation, treatment of persons confined in local correctional facilities, and personnel training. (Penal Code Section 6030.)
3. Pursuant to the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges in all business establishments of every kind. (Civil Code Section 51.)

EXISTING FEDERAL LAW:

1. Pursuant to the Immigration and Naturalization Act, protects all asylum seekers by prohibiting the federal government from returning to their home countries people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. (8 U.S.C. Sec. 1101 (a)(42)(A).)
2. Pursuant to the Immigration and Naturalization Act, provides that victims of certain crimes may obtain immigration relief through a Victim of Crime Visa (U-Visa) and victims of human trafficking may obtain immigration relief through a Victim of Trafficking Visa (T-Visa). (8 U.S.C. Sec. 1101 (a)(15)(U); 8 U.S.C. Sec. 1101 (a)(15)(T).)
3. Pursuant to case law, establishes that immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves are entitled to qualified legal representatives provided by the federal government for representation during all phases of their immigration proceedings, including appeals and custody hearings. (Franco-Gonzalez v. Holder, CV 10-02211-DMG.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill, sponsored by Community Initiatives for Visiting Immigrants in Confinement (CIVIC), seeks to prohibit local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities, and requires these facilities to uphold national standards for humane treatment of detainees, enforceable by a private right of action. According to the author:

ICE contracts with private companies to run detention facilities to hold immigrants, including undocumented people, asylum-seekers, long-time green card holders, and others who are awaiting their immigration hearings. There have been consistent reports of human rights abuses in detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, and overuse of solitary confinement, and even death.

SB 1289 will prohibit local governments from contracting with private companies to detain immigrants for profit. This bill will also require detention facilities to meet the basic standards laid out by ICE’s 2011 Performance-Based National Detention Standards and authorize individuals to bring a civil action against a facility in the event that their rights are violated. SB 1289 will ensure that immigrants’ rights are protected and there is an opportunity for them to seek redress when they have not been upheld.

Immigrant detention facilities in California. Local governments and local law enforcement entities are not required to detain immigrants on behalf of federal immigration authorities. The ones in California that decide to detain immigrants do so by choice. Federal immigration authorities, either U.S. Immigration & Customs Enforcement (ICE) or the U.S. Marshals, enter into Intergovernmental Service Agreements (IGSAs) with local governments or local law enforcement whereby the local entity agrees to detain immigrants on behalf of the federal government. Local governments or local law enforcement can then choose to detain the immigrants in their own facilities or subcontract with for-profit detention facilities instead.

According to figures provided by CIVIC, 62% of all ICE immigration detention beds in the U.S. are operated by for-profit prison corporations, up from 49% in 2009. They contend that operators of these private detention facilities make billions in profit each year from holding undocumented persons, while the California county and city partners in these intergovernmental service agreements experience little economic gain. There are currently four for-profit detention facilities in California:

(1) ICE contracts with the City of Adelanto, who in turn contracts with GEO Group to detain immigrants at the Adelanto Detention Facility (Adelanto).

(2) ICE contracts with the City of McFarland, who in turn contracts with GEO Group to detain immigrants at the Mesa Verde Detention Facility (Bakersfield).

(3) ICE contract with the City of Holtville, who in turn contracts with Management & Training Corp. (MTC) to detain immigrants at the Imperial Regional Detention Facility. (Calexico).

(4) U.S. Marshals contract with Corrections Corporation of America (CCA) to detain immigrants at the Otay Detention Facility (San Diego).

According to the author, these four privately run facilities hold almost 85% of detainees statewide, approximately 3,700 people, with the rest held in county jail facilities that contract with federal immigration authorities. Specifically, ICE and the U.S. Marshals have intergovernmental service agreements with four counties, for the detention of immigrants at the Yuba County Jail (Marysville), Rio Consumnes Correctional Center (Elk Grove), the West County Detention Facility (Richmond), James Musick Facility (Irvine), Theo Lacy Facility (Orange). Lastly, they contract with the City of Santa Ana to detain immigrants at the Santa Ana City Jail.

Altogether, CIVIC reports that these facilities hold a total of approximately 6,276 immigrants per day in civil confinement. CIVIC also reports that many of these facilities operate under a perverse contractual incentive where they are guaranteed a minimum number of detainees in their facility at all times, thus ensuring their profits. For example, according to CIVIC, at the Adelanto Detention Facility (ADF), ICE is guaranteed 975 detainees at all times with a per diem rate of $111 per bed per day. The City of Adelante, in opposing this bill, shares data showing that in 2015, GEO Group (the operator of the facility) paid the city $300,000 in "fiscal mitigation payments" and $50,000 as an annual administration fee, as well as $175,000 in funding for one additional law enforcement officer. (Additional monies received by GEO were in the form of property and sales taxes.) The City reports that the number of beds has been recently increased to 1940 beds, and that effective June 2016, the annual fiscal mitigation payments and administrative fees will increase to $1,013,600, over a 50% increase from last year alone.

Private immigrant detention facilities operate with no mechanism for public oversight. The author contends that because private for-profit detention facilities operate with little to no oversight, they are essentially accountable only to their shareholders and not the people of the California. For-profit detention facilities claim exemptions to the public disclosure requirements under the Freedom of Information Act (FOIA) (5 U.S.C. Sec. 552) because they are private corporations, which makes the potentially unlawful conduct occurring within the facility hidden from discovery. For example, a 2013 article in Forbes noted that “if serious questions arise about…the 16,500 federal immigration detainees held in privately-operated facilities under contracts with the U.S. Department of Homeland Security, there’s no legal remedy in place forcing those questions to be answered.” (Matt Stroud, Private Prisons Are Exempted From Federal Disclosure Laws; Advocates Say that Should Change, (Feb. 7, 2013) Forbes.)

The private detention facilities similarly claim an exemption to the California Public Records Act (CPRA) (Gov. Code Sec 6250 et seq). CIVIC notes that despite numerous reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for profit immigrant detention facilities, it is difficult to obtain information about these facilities. CIVIC explains the process for obtaining information about private for profit immigrant detention facilities as follows:

[A] person can FOIA the IGSA between ICE and the private prison. When this occurs, ICE is required to ask the corporation if they are OK with the government disclosing it. If the corporation is OK, then it will be disclosed. However, it is completely in the discretion of the private prison corporation whether any document pertaining to the IGSA or any other aspect of the business is disclosed through a FOIA request.

As a result, abuse and inhumane treatment of detainees is reportedly tolerated and persists in these facilities because the public has no dependable mechanism for getting information about what is going on behind closed doors. Journalists and advocacy groups like CIVIC are occasionally able to document problems and incidents of mistreatment at these facilities, but only with the cooperation of the facilities themselves. The public policy of California is certainly not to allow the abuse of people who are detained by the government in facilities where there is no transparency or oversight. In fact, California has enacted many recent laws protecting the rights of immigrants, and in this session alone this Committee has approved AB 2027 (Quirk), to assist immigrant victims of human trafficking apply for a U-Visa by expediting the process of obtaining the necessary certification of helpfulness, and AB 60 (Gonzales) to establish stronger consumer protections for immigrants seeking relief under prospective federal immigration reform and executive action.

Thus, the Committee believes it is consistent with the public policy of this state to not enable private companies to profit from detaining immigrants in California under questionable conditions, especially where there is so little public transparency or accountability. Accordingly, this bill would prohibit local governments and law enforcement from contracting with companies that operate for-profit immigration detention facilities to detain immigrants. The Committee notes that the Legislature lacks authority to prohibit private immigrant detention facility operators from contracting directly with ICE or federal authorities to hold immigrants, and this bill does not attempt to preclude those contracting practices.

Despite lack of transparency, advocates have documented patterns of widespread abuse of immigrants held in private detention facilities. The Committee has received a number of reports and letters in support of this bill from immigrant advocates, watchdog organizations, and human rights advocates describing widespread incidents of abuse and mistreatment of immigrants held in private detention facilities in California, as well as in facilities in other states operated by the same companies that operate facilities in California. In its report "Abuse in Adelanto: An Investigation into a California Town's Immigration Jail," CIVIC details a number of disturbing examples of prolonged detention, medical abuse and neglect, violations of religious freedom, attempted suicides, and the negligent deaths of detainees—all at the Adelanto facility alone. The National Immigrant Justice Center reports that among LGBT individuals in the detained population, there are higher accounts of the use of solitary confinement, sexual abuse, and poor medical care in immigration detention facilities. (See National Immigrant Justice Center, Stop Abuse of Detained LGBT Immigrants; available at: http://www.immigrantjustice. org/stop-abuse-detained-lgbt-immigrants.)

Human Rights Watch writes that it has interviewed many transgender women in immigration detention who report being subjected to sexual assault and regular strip searches by male guards, including at the Santa Ana City jail, and others who report having been held in abusive conditions of indefinite solitary confinement that are justified by prison authorities as a measure for transgender detainees’ protection. Finally, CIVIC summarizes cases from several other states where the same private detention center companies (namely, Geo Group, CCA, and MTC) have faced lawsuits (and in some cases been held civilly liable) for acts of sexual harassment, wrongful death, and medical neglect, among other things.

To address these issues, the bill prohibits immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees from medical care, freedom from harm or harassment, and privacy. The bill provides that medical care includes HIV medication and transition-related health care, and further prohibits the denial of medical care on the basis that an immigrant is likely to be released or deported. Among other things, the bill requires immigrant detention facilities to: (1) ensure that all medical records of the detainee are promptly transferred to ICE at the time of transfer or promptly provided to the facility to which the detainee is transferred; (2) ensure that all detainees receive all medications needed while in transit; (3) ensure that a detainee’s treatment plan is received by the medical personnel at the facility to which the detainee is being transferred; and (4) ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer. The bill also prohibits the involuntary placement of immigrant detainees in segregated housing because of the detainee’s actual or perceived gender, gender identity, gender expression, or sexual orientation.

Lack of access to legal representation and telephone communication. Because immigration proceedings are civil matters, not criminal, detainees have fewer rights afforded to them than criminal defendants, including the right to an attorney. CIVIC reports, for example, that of the 89 people detained at ADF that it monitored over a six-month period, only 12.3 percent had legal representation—below the already low national average of 16 percent (Abuse in Adelanto: An Investigation into a California Town's Immigration Jail (October 2015); CIVIC and Detention Watch Network.) Because most detainees go completely without legal representation, it is essential that they have access to a law library or telephone communications where they can communicate with advocates or family members outside the center who can arrange assistance. Even where detainees at Adelanto had legal representation, CIVIC reported the difficulties that these people experienced due to obstructive actions taken by facility staff. The lack of access to legal representation is even more tragic because many detainees in custody may, in fact, qualify to remain in the U.S., but are instead deported because they were never able to obtain the assistance of legal counsel.

To address these issues, the bill requires immigrant detention facilities to have a Legal Orientation Program, as specified, that includes an orientation on immigration removal proceedings and forms of relief, distribution of self-help materials, provision of private and individual consultations with unrepresented detainees to discuss their cases, and referrals to pro bono legal services. In addition, the bill specifically prohibits immigrant detention facilities from depriving immigrant detainees from access to an attorney or other authorized legal representative, and access to translation or interpreters.

Codifying the national standards for basic care in immigrant detention facilities, promulgated by ICE for facilities it contracts with. ICE has promulgated a series of national standards laying out the requirements for basic care in immigrant detention facilities, known as the Performance-Based National Detention Standards 2011 as corrected and clarified in February 2013 (Hereafter, PBNDS 2011). ICE uses national detention standards to govern conditions of confinement in its detention facilitates established through contracts with those facilities. (United States Government Accountability Office, “Immigration Detention” Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse, p. 12 (Nov. 2013), Available at: http://www.gao.gov/assets/660/659145.pdf) Immigration detention facilities agree to follow these standards pursuant to the Inter-governmental Service Agreements (IGSAs) between the federal government and the local governments, including when the local entities contract out with for-profit corporations. (See e.g. Mesa Verde IGSA pp. 4, 7, 19; available at http://www. documentcloud.org/ documents/ 2631228-Mesa-Verde-CA-IGSA-Contract.html.)

This bill is necessary, proponents contend, to address the fact that although the PBNDS 2011 standards may be agreed to under the contract, the standards are unenforceable because they are not required to be adhered to under any federal or state law. Furthermore, there is no recourse for detainees when the detention facilities commit acts that violate these standards. In support of SB 1289, Human Rights Watch explains:

Many of [the abuses documented in California] violate the 2011 Performance-Based National Detention Standards (PBNDS) promulgated by US Immigration and Customs Enforcement (ICE) in 2011. The PBNDS establish concrete standards on access to counsel, visitation, medical and mental health care, solitary confinement, and sexual assault prevention. Unfortunately, the measures are not legally binding and have only been implemented at select facilities that have voluntarily elected to modify their operating agreements with ICE. Without a mechanism to ensure compliance with these standards by all facilities, such as the one SB 1289 would provide, too many immigrant detainees suffer basic rights abuses.

An additional federal policy, ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees), was created to govern the placement of immigrant detainees in solitary confinement. The directive was created after a joint study by two human rights organization revealed that immigrant detainees were increasingly placed in solitary confinement due to mental illness, sexual orientation, or not speaking English. (See Invisible in Isolation: The Use of Segregation and Solitary Confinement in Immigration Detention (Sept. 2012), Heartland Alliance and Physicians for Human Rights.) Unfortunately, this policy directive is equally unenforceable by immigrant detainees, as there is no law requiring it to be followed.

Accordingly, this bill seeks to create enforceable rights for immigrant detainees centered on the national standards described above. The bill provides that when an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with DHS or other federal agency to adhere to the PBNDS 2011 standards as well as ICE Directive 11065.1. The bill makes clear that, as a policy matter, every immigrant detention facility in California should be subject to the same national standards for the detention of immigrants, including private detention facilities contracted with local governments. Mandating that private immigration detention facilities in California meet national standards is intended to prevent and reduce patterns of abuse that have been documented in these facilities.

This bill allows enforcement of treatment standards by an immigrant detainee through a private right of action, or by public prosecution. This bill would require that immigrant detention facilities adhere to the PBNDS 2011 standards and ICE Directive 11065.1, and other rights granted by this bill. Importantly, the bill will, for the first time, provide an enforcement mechanism to allow an immigrant detainee who has been deprived of his or her rights to bring a civil action for damages, including, but not limited to, damages under Civil Code Section 52, injunctive and other appropriate equitable relief, when an immigrant detention facility, or its agent or person acting on its behalf, deprives the detainee of their rights created under this bill, or rights specified in the PBNDS 2011 standards or ICE Directive 11065.1. The bill further specifies that an action brought under the bill is independent of any other action, remedy, or procedure that may be available to an individual under any other provision of law, thus preserving all other remedies that may be available to the detainee.

This bill also allows enforcement by the Attorney General, any district attorney, or city attorney to allow a civil action for injunctive and other appropriate equitable relief to be brought in the name of the people of the State of California, and also allows the prosecutor to seek a civil penalty of $25,000, as specified, when an immigrant detention facility deprives an immigrant detainee of their rights created under this bill or rights under the PBNDS 2011 standards or ICE Directive 11065.1.

Proposed Author's Amendments. The author proposes a series of technical amendments that correct inconsistent drafting, reorganize the different sections of the bill, and combine everything into a single section of the Civil Code. The amendments are non-substantive and technical in nature.

ARGUMENTS IN OPPOSITION: This bill is opposed by the California State Association of Counties (CSAC), who state:

CSAC opposes any legislation that would limit a county’s authority to contract with a facility that detains offenders whether they are immigrants, felons, or misdemeanants. Almost half of California’s county jails have some sort of capacity order limiting the number of offenders they can hold before they must be released because of overcrowding. SB 1289 ties local law enforcement’s hands and increases the possibility of litigation. Currently, the City and County of San Francisco and San Francisco Sheriff Ross Mirkarimi are being sued by Kate Steinle’s family in a wrongful death lawsuit, for releasing Juan Francisco Lopez-Sanchez from jail without notifying federal immigration officials. While Mr. Lopez-Sanchez was a seven-time convicted felon, there was no active warrant for him. The San Francisco Sheriff’s Department released him stating that they had no "legal basis" to hold him.

In response, the author notes that in the San Francisco case, Lopez-Sanchez was not released from county jail because of overcrowding conditions, but in fact because of local San Francisco law that did not give the Sheriff legal authority to continue to hold him.

The bill is also opposed by the California State Sheriffs’ Association, which states:

When local correctional facilities house detained immigrants, they do so in coordination with the federal government, according to the laws and standards created by federal authorities. Additionally, state regulations provide minimum standards for all public detention facilities. We believe SB 1289 inappropriately inserts the state into matters that are appropriately governed by federal authorities. Given the fact that the federal government has occupied the field of immigration enforcement, it is certainly possible that this measure would be preempted by federal law. Additionally, by creating public and private rights of action for alleged violations of the federal guidelines and the bill’s standards, SB 1289 exposes local governments to state civil liability despite federal oversight and enforcement.

In response to the California State Sheriffs’ Association’s assertion that the bill might be preempted by federal law, the author responds:

Immigration is federally regulated. However, this bill is not about immigration enforcement, this is about ensuring state standards for treating people humanely. The state is fully within its jurisdiction to assert higher standards of care for detainees being held in our state. Regardless, the facilities in California are contracting with local governments, which the state has purview over.

With respect to the Sheriffs' opposition to creating a private right of action to enforce the minimal standards of treatment, the author responds:

The standards in SB 1289 are already included in all immigration detention contracts in California, but are currently not being upheld in large part because there is no consequence if facilities fall below these standards. In fact, there have been many accounts documenting repeated failures to adhere to these standards, resulting in poor medical treatment and other substandard care. [Citation omitted] There has to be a consequence for facilities that do not uphold the standards, otherwise abuse and neglect will continue. And, despite numerous reports of facilities falling below the detention standards, historically there has been little to no action even when facilities fall below the federal standards. Further, immigration detention is civil in nature. It is thus important that we provide protections to this especially vulnerable population, especially since these individuals are not afforded some of the protections built into the criminal justice system, such as the right to government-appointed counsel.

REGISTERED SUPPORT / OPPOSITION:

Support

Community Initiatives for Visiting Immigrants in Confinement (CIVIC) (sponsor)

Friends Committee on Legislation of California

Services, Immigrant Rights & Education Network

Human Rights Watch

Silicon Valley Debug

The LGBT Center Orange County

Immigrant Youth Coalition

Public Counsel

Immigration Equality

CARECEN Norcal and Socal

TransLatin@

Justice Now

Congregations Building Communities

Centro Laboral de Graton

VIDAS

American Immigration Lawyers Association

Pangea Legal Services

California Immigrant Youth Justice Alliance

Community United Against Violence

Catholic Charities of the East Bay

National Immigration Law Center

Asian Pacific Islander Legal Outreach

Lawyers Committee for Civil Rights

ASPIRE

Asian Law Alliance

Marin Interfaith Alliance

Interfaith Movement for Human Integrity

San Diego Volunteer Lawyer Program

Familia Trans Queer Liberation Movement

East Bay Sanctuary Covenant

Mount Diablo Unitarian Universalist Church

Inland Empire Immigrant Youth Coalition

Legal Services for Prisoners with Children

Alliance for Boys and Men of Color

UCI Law Clinic

Immigrant Legal Resource Center

Motivating Individual Leadership for Public Advancement

Prison Law Office

PICO

Jewish Family Services Los Angeles

Transgender Law Center

San Joaquin Immigrant Youth Coalition

A New Way of Life Re-entry

Center for Gender and Refugee Studies

Enlace

Coalition for Humane Immigrant Rights of Los Angeles

San Fernando Dream Team

Dolores Street Community Services

Causa Justa/Just Cause

LA LGBT Center

SEIU

Latino Coalition for a Healthy California

Californians for Safety and Justice

Our Family Coalition

Opposition

California Sheriffs Association

California State Association of Counties

City of Adelanto

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 1289

Author: Lara (D)

Amended: 5/31/16

Vote: 21

SENATE JUDICIARY COMMITTEE: 5-2, 4/19/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

SUBJECT: Law enforcement: immigration

SOURCE: Community Initiatives for Visiting Immigrants in Confinement

Immigrant Legal Resource Center

DIGEST: This bill prohibits local law enforcement agencies and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill requires that immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill further requires that immigrants in detention be provided other legal rights, as specified. This bill authorizes a private right of action against immigrant detention facilities and their agents for violations of the national detention standards or violations of the other rights created by this bill, and authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards or violations of other legal rights created by this bill.

ANALYSIS:

Existing law:

1. Provides that everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. Protects asylum seekers by prohibiting the federal government from returning to their home countries people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a social group.
3. Provides that victims of certain crimes may obtain immigration relief through a Victim of Crime Visa (U-Visa) and victims of human trafficking may obtain immigration relief through a Victim of Human Trafficking Visa (T-Visa).
4. Provides immigration relief that relies on a state’s interest in the welfare of children and provides for Special Immigrant Juvenile Status where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country.
5. Establishes that the care and custody of unaccompanied minors is the responsibility of the Office of Refugee Resettlement in the Department of Health and Human Services instead of the Department of Homeland Security.
6. Holds that immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves are entitled to qualified legal representatives provided by the federal government for representation during all phases of their immigration proceedings, including appeals and custody hearings.

This bill:

1. Prohibits local governments or local law enforcement from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor or vendor to detain immigrants in civil immigration proceedings for profit.
2. Provides that a city, county, city and county, or a local law enforcement agency that chooses to enter into a contract, renews a contract, or modifies a contract to extend the length of the contract, to detain immigrants in civil immigration proceedings, shall detain immigrants only pursuant to a contract that requires the immigration detention facility operator to adhere to the standards for detaining those individuals described in the 2011 Operations Manual Immigration and Customs Enforcement (ICE) Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
3. Makes clear that an immigration detention facility can exceed the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
4. Prohibits immigrant detention facilities, agents of immigration detention facility operators, or those acting on their behalf from depriving immigrant detainees: (a) access to legal representatives; (b) access to translation or interpreters; (c) medical care; (d) freedom from harm or harassment; and (e) privacy.
5. Prohibits an immigration detention facility, an agent or person acting on behalf of the immigration detention facility, from depriving a detainee access to medical care, including but not limited to, HIV medication and transition-related health care, and further prohibits the denial of medical care on the basis that an immigrant is likely to be released or deported.
6. Requires an immigrant detention operator to do all of the following when an immigrant detainee is transferred:

• Ensure that all medical records of the detainee are promptly transferred to ICE at the time of transfer or promptly provided to the facility to which the detainee is transferred;
• Ensure that all detainees receive all medications needed while in transit;
• Ensure that a detainee’s treatment plan is received by the medical personnel at the facility to which the detainee is being transferred; and
• Ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer.

1. Prohibits the involuntary placement of immigration detainees in segregated housing because of the detainee’s actual or perceived gender, gender identity, gender expression, or sexual orientation. This bill also requires that transgender and gender non-conforming immigration detainees be given the option to choose a housing placement consistent with their gender identity.
2. Requires immigrant detention facilities to have a Legal Orientation Program, as specified, that includes an orientation on immigration removal proceedings and forms of relief, distribution of self-help materials, provision of private and individual consultations with unrepresented detainees to discuss their cases, and referrals to pro bono legal services.
3. Authorizes the Attorney General, any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility operator, or its agent or person acting on its behalf violates rights created under this bill or the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
4. Authorizes any individual who has been injured by a failure to comply with the rights created under this bill to bring a civil action for damages, including, but not limited to, damages under Section 52 of the Civil Code, injunctive and other appropriate equitable relief, when an immigrant detention facility operator, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or violates the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
5. Requires that if a civil penalty is requested by the Attorney General, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual who has been injured.
6. Provides that the court may award the petitioner or plaintiff reasonable attorney’s fees and costs in addition to any damages, injunction, or other equitable relief.
7. Makes related legislative findings and declarations.

Background

In California, and around the country, for-profit detention facilities are increasingly relied upon to detain immigrants who are oftentimes eligible for Asylum, Special Immigrant Juvenile Status immigration relief, U-Visas, T-Visas, or other forms of immigration relief. Additionally, a few local government and local law enforcement entities choose to enter into agreements with federal immigration authorities to detain immigrants in their county or city jails on behalf of the federal immigration authorities.

For-profit detention facilities are accountable to their shareholders and not the people of the State of California. Oftentimes, immigrants in immigrant detention facilities are escaping persecution in their countries of origin and in need of special care due to their persecution or because they have suffered arduous journeys as unaccompanied children. Ensuring that immigrants are provided with the services they need to heal oftentimes is in contrast to corporate interests. Because these facilities are private, they routinely claim exemptions to the California’s Public Records Act and the federal Freedom of Information Act. Despite the lack of access to records through these acts, there have been reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for-profit immigrant detention facilities. Somewhat perversely, because immigration detention is technically a civil form of confinement, immigrants in immigrant detention facilities lack many of the safeguards of the criminal justice system, including access to counsel.

Local government and law enforcement entities that choose to contract with immigration authorities to detain immigrants are supposed to adhere to national immigration detention standards, promulgated by ICE regardless of whether they detain the immigrants in their local jails or contract their immigrant detention duties out to private for-profit corporations. But many detainees have reported experiencing deplorable conditions at city and county immigrant detention facilities in violation of the national standards. No meaningful enforcement mechanism currently exists to hold immigration detention facilities accountable, whether for-profit or run by local governmental agency, when they violate immigrant detainee’s rights. Various reports indicate that the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) detained immigrants have been extensively violated at both types of detention facilities.

This bill prohibits local law enforcement and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities and requires that all immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill creates legal rights for immigrants in detention, including but not limited to, access to legal representatives, access to translation or interpreters, medical care, freedom from harm or harassment, and privacy. In order to ensure that the national detention standards are complied with and that the legal rights of the immigrant detainees are respected, this bill includes an enforcement mechanism whereby abused immigrant detainees can bring a civil action to stop the abuses and recover damages resulting from the abuse. Additionally, the bill also authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards and other legal rights created by this bill.

Comments

The author writes:

In 2011 ICE developed the Operations Performance-Based National Detention Standards, which lays out the basic health and safety standards detainees should receive while in detention. However, these standards are not codified and are unenforceable. There have been widespread reports of human right’s abuses in detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, overuse of solitary confinement, and even death. LGBT detainees have reported facing discrimination, harassment, and abuse due to their sexual orientation. In many of these instances, even the Department of Homeland Security has found these deaths were preventable. Tragically, the incidents often go unaddressed and victims have no recourse.

Private, for-profit immigration detention facilities present a host of problems. The facilities are not subject to the Freedom of Information Act and operate with little to no oversight. Many also operate under a perverse incentive, where they are guaranteed a minimum number of detainees in their facility at all times, ensuring their profits. For example in Adelanto Detention Facility in Adelanto, California, ICE is guaranteed 975 detainees at all times with a per diem rate of $111 per bed per day. Perversely, if the number of beds increases over 975, the per diem rate drops to $50 per day per bed. The private detention contracts are designed to incentivize filling the most beds at all times, regardless of public safety or their destructive effects on communities. Indeed, private companies make billions in profits every year from incarcerating mothers, fathers, children, and others in our broken immigration system.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, there are potential fiscal impacts on the Attorney General, local prosecutors, and local governments. There are potentially significant workload increases (General Fund) should the Attorney General choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually. There are potentially significant non-reimbursable local costs (Local Funds) for local prosecutors to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. There are also potentially significant losses of future revenue (Local Funds) due to the inability of local governments/agencies to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met. There are also unknown and potentially major costs (private funds) for private contracts and vendors to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in this bill.

SUPPORT: (Verified 5/30/16)

Community Initiatives for Visiting Immigrants in Confinement (co-source)

Immigrant Legal Resource Center (ILRC) (co-source)

Alliance for Boys and Men of Color

American Immigration Lawyers’ Association

A New Way of Life Re-entry; Asian Law Alliance

Asian Pacific Islander Legal Outreach; Aspire

California Immigrant Policy Center

California Immigrant Youth Justice Alliance

Catholic Charities of the East Bay

Center for Gender and Refugee Studies

Central American Resource Center-Los Angeles

Central American Resource Center of Northern California

Central Laboral de Graton

Coalition for Humane Immigrant Rights of Los Angeles

Community United Against Violence

Congregations Building Community

Dolores Street Community Services

East Bay Sanctuary Covenant

Ella Baker Center for Human Rights

Enlace

Familia Trans Queer Liberation Movement

Friends Committee on Legislation

Human Rights Watch

Immigrant Youth Coalition

Inland Empire Immigrant Youth Coalition

Interfaith Movement for Human Integrity

Jewish Family Services of Los Angeles

Just Cause/Causa Justa

Justice Now

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners with Children

Los Angeles LGBT Center

Marin Interfaith Alliance

Motivating Individual Leadership for Public Advancement

Mount Diablo Unitarian Universalist Church

National Immigration Law Center

Pangea Legal Services

PICO

Prison Law Office

San Diego Volunteer Lawyer Program

San Fernando Dream Team

San Joaquin Immigrant Youth Coalition

Services Immigrant Rights and Education Network

Silicon Valley Debug

Social Justice Collaborative

Transgender Law Center

TransLatin@

UC Irvine Law Clinic

Vital Immigrant Defense Advocacy and Services Incorporated

One individual

OPPOSITION: (Verified 5/30/16)

California State Sheriffs’ Association

Prepared by: Margie Estrada / JUD. / (916) 651-4113

5/31/16 21:51:58

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1289 (Lara) - Law enforcement: immigration

Bill Summary:

SB 1289 would prohibit local law enforcement agencies and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill would authorize the Attorney General, a district attorney or city attorney to bring a civil action for injunctive and other appropriate equitable relief and seek a civil penalty of $25,000, as specified, when an immigrant detention facility deprives an immigrant detainee of his or her rights, as specified.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 27, 2016

Fiscal Impact:

• Attorney General (AG): Potentially significant workload increase (General Fund) should the AG choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually.
• Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues.
• Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met.
• Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill.

Author Amendments:

• Provide that transgender and gender non-conforming immigration detainees shall be given the option to choose a housing placement consistent with their gender identity.
• Make other technical and clarifying changes.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1289 (Lara) - Law enforcement: immigration

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1289 would prohibit local law enforcement agencies and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill would authorize the Attorney General, a district attorney or city attorney to bring a civil action for injunctive and other appropriate equitable relief and seek a civil penalty of $25,000, as specified, when an immigrant detention facility deprives an immigrant detainee of his or her rights, as specified.

Fiscal Impact:

• Attorney General (AG): Potentially significant workload increase (General Fund) should the AG choose to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues. To the extent the number and complexity of cases brought forward is significant, costs could rise into the hundreds of thousands of dollars annually.
• Local prosecutors: Potentially significant non-reimbursable local costs (Local Funds) to bring civil actions for injunctive and other equitable relief, offset in part by civil penalty revenues.
• Local governments/agencies: Potentially significant loss of future revenue (Local Funds) due to the inability to contract with for-profit entities for immigrant detention services. To the extent a local law enforcement agency opts to detain immigrants in its facilities through a direct contract with the federal government, the agency could incur potentially significant non-reimbursable costs (Local Funds) to ensure immigrant detainee rights as prescribed are met.
• Private contractors/vendors: Unknown, potentially major costs (private funds) to adhere to the specified standards and processes for detainee transfers and rights to counsel, translators, interpreters, and medical care as outlined in the bill.

Background:

Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

As stated in the Senate Committee on Judiciary analysis of this measure: In California, and around the country, for-profit detention facilities are increasingly relied upon to detain immigrants who are oftentimes eligible for Asylum, Special Immigrant Juvenile Status immigration relief, Victims of Crime Visas (U-Visas), Victims of Human Trafficking Visas (T-Visas), or other forms of immigration relief. Additionally, a few local government and local law enforcement entities choose to enter into agreements with federal immigration authorities to detain immigrants in their county or city jails on behalf of the federal immigration authorities.

For-profit detention facilities are accountable to their shareholders and not the people of the State of California. Oftentimes, immigrants in immigrant detention facilities are escaping persecution in their countries of origin and in need of special care due to their persecution or because they have suffered arduous journeys as unaccompanied children. Ensuring that immigrants are provided with the services they need to heal oftentimes is in contrast to corporate interests. Because these facilities are private, they routinely claim exemptions to the California’s Public Records Act and the federal Freedom of Information Act. Despite the lack of access to records through these acts, there have been reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for-profit immigrant detention facilities. Somewhat perversely, because immigration detention is technically a civil form of confinement, immigrants in immigrant detention facilities lack many of the safeguards of the criminal justice system, including access to counsel.

Local government and law enforcement entities that choose to contract with immigration authorities to detain immigrants are to adhere to national immigration detention standards, promulgated by U.S. Immigration and Customs Enforcement (ICE) regardless of whether they detain the immigrants in their local jails or contract their immigrant detention duties out to private for-profit corporations. But many detainees have reported experiencing deplorable conditions at city and county immigrant detention facilities in violation of the national standards. No meaningful enforcement mechanism currently exists to hold immigration detention facilities accountable, whether for-profit or run by local governmental agency, when they violate immigrant detainees’ rights.

Proposed Law:

This bill would prohibit local governments or local law enforcement agencies from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor or vendor to detain immigrants for profit, on behalf of the Department of Homeland Security (DHS), Office of Refugee Resettlement, or the United States Marshals Service. Additionally, this bill:

• Provides that if an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with DHS or other federal agency to adhere to the standards for detaining those individuals described in the 2011 Operations Manual ICE Performance-Based National Detention Standards, as corrected and clarified in 2013.
• Prohibits immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees of (1) access to legal representation; (2) access to translator or interpretation services; (3) medical care; (4) freedom from harm or harassment; or (5) privacy.
• Requires immigrant detention facilities to complete enumerated activities when an immigrant detainee is transferred to ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer.
• Prohibits the involuntary placement of an immigration detainee in segregated housing because of the detainee’s actual or perceived gender, gender identity, gender expression, or sexual orientation.
• Requires immigrant detention facilities to have a Legal Orientation Program, as specified, that includes an orientation on immigration removal proceedings and forms of relief, distribution of self-help materials, provision of private and individual consultations with unrepresented detainees to discuss their cases, and referrals to pro bono legal services.
• Authorizes the Attorney General, any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of his or her rights, as specified.
• Authorizes any individual who has been deprived of his or her rights to bring a civil action for damages, including, but not limited to, damages, injunctive and other appropriate equitable relief, when an immigrant detention facility, its agent or person acting on its behalf deprives an immigrant detainee of his or her rights, as specified.
• Requires that if a civil penalty is requested by the Attorney General, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual whose rights are determined to be violated.
• Provides that the court may award the petitioner or plaintiff reasonable attorney’s fees and costs in addition to any damages, injunction, or other equitable relief.
• Includes related legislative findings and declarations.

Staff Comments:

The office of the Attorney General has indicated potentially significant costs to address an increase in workload should be bill be enacted. Additional workload would include the cost of additional staffing to complete the drafting of pleadings, discovery, and extensive legal research required for these cases.

By prohibiting local governments and law enforcement agencies from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities, this bill could result in some degree of lost revenue to local entities. For example, based on information reported by the Community Initiatives for Visiting Immigrants in Confinement (CIVIC), an intergovernmental service agreement (IGSA) that utilizes the City of Adelanto for a contract between the GEO Group and ICE for immigrant detention at the Adelanto Detention Facility, could potentially result in lost revenue to the City of nearly $228,000 (based on a flat administrative fee of $50,000 per year for the facility and a reimbursement rate of $0.75 per person per day for 650 persons).

Staff notes the provisions of this measure do not prohibit an IGSA between a local entity and the federal government, should a local government entity, such as a law enforcement agency, choose to detain immigrants on behalf of the federal government. By prohibiting the practice of subcontracting with for-profit entities for use of its facilities, a direct contract between a law enforcement agency and the federal government to detain immigrants in its own local facilities could result in significant costs to local agencies to ensure immigrant detainee rights as prescribed in the bill are met. It is unclear to what degree the existing pressure on the capacity of local jails would be impacted by this bill, but as previously noted, the detention of immigrants on behalf of the federal immigration authorities is optional. To the extent local agencies do not have sufficient capacity or resources, local agencies could choose not to enter into such agreements.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: SB 1289 (Author:Lara)

Version: April 11, 2016

Hearing Date: April 19, 2016

Fiscal: Yes

Urgency: No

Consultant: ME

SUBJECT

Law enforcement: immigration

DESCRIPTION

This bill would prohibit local law enforcement agencies and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities. This bill would require that immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill further would require that immigrants in detention be provided other legal rights, as specified.

This bill would authorize a private right of action against immigrant detention facilities and their agents for violations of the national detention standards or violations of the other rights created by this bill, and authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards or violations of other legal rights created by this bill.

BACKGROUND

In California, and around the country, for-profit detention facilities are increasingly relied upon to detain immigrants who are oftentimes eligible for Asylum, Special Immigrant Juvenile Status immigration relief, Victims of Crime Visas (U-Visas), Victims of Human Trafficking Visas (T-Visas), or other forms of immigration relief. Additionally, a few local government and local law enforcement entities choose to enter into agreements with federal immigration authorities to detain immigrants in their county or city jails on behalf of the federal immigration authorities.

For-profit detention facilities are accountable to their shareholders and not the people of the State of California. Oftentimes, immigrants in immigrant detention facilities are escaping persecution in their countries of origin and in need of special care due to their persecution or because they have suffered arduous journeys as unaccompanied children. Ensuring that immigrants are provided with the services they need to heal oftentimes is in contrast to corporate interests. Because these facilities are private, they routinely claim exemptions to the California’s Public Records Act and the federal Freedom of Information Act. Despite the lack of access to records through these acts, there have been reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for-profit immigrant detention facilities. Somewhat perversely, because immigration detention is technically a civil form of confinement, immigrants in immigrant detention facilities lack many of the safeguards of the criminal justice system, including access to counsel.

Local government and law enforcement entities that choose to contract with immigration authorities to detain immigrants are supposed to adhere to national immigration detention standards, promulgated by Immigration Customs and Enforcement (ICE) regardless of whether they detain the immigrants in their local jails or contract their immigrant detention duties out to private for-profit corporations. But many detainees have reported experiencing deplorable conditions at city and county immigrant detention facilities in violation of the national standards. No meaningful enforcement mechanism currently exists to hold immigration detention facilities accountable, whether for-profit or run by local governmental agency, when they violate immigrant detainee’s rights. Various reports indicate that the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) detained immigrants have been extensively violated at both types of detention facilities.

This bill would prohibit local law enforcement and local governments from contracting with for-profit entities to detain immigrants on behalf of federal immigration authorities and would require that all immigrant detention facilities adhere to national immigration standards for the detention of immigrants. This bill would create legal rights for immigrants in detention, including but not limited to, access to legal representatives, access to translation or interpreters, medical care, freedom from harm or harassment, and privacy. In order to ensure that the national detention standards are complied with and that the legal rights of the immigrant detainees are respected, this bill includes an enforcement mechanism whereby abused immigrant detainees can bring a civil action to stop the abuses and recover damages resulting from the abuse. Additionally, the bill also authorizes the Attorney General, district attorneys, and city attorneys to bring suits against detention facilities for violations of the national detention standards and other legal rights created by this bill.

CHANGES TO EXISTING LAW

Existing international law provides that everyone has the right to seek and to enjoy in other countries asylum from persecution. (UN General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948, 217A(III), Art. 14.)

Existing federal law, the Immigration and Naturalization Act, protects all asylum seekers by prohibiting the federal government from returning to their home countries people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. (8 U.S.C. Sec. 1101(a)(42)(A).)

Existing federal law provides that victims of certain crimes may obtain immigration relief through a Victim of Crime Visa (U-Visa) and victims of human trafficking may obtain immigration relief through a Victim of Trafficking Visa (T-Visa). (8 U.S.C. Sec. 1101(a)(15)(U); 8 U.S.C. Sec. 1101(a)(15)(T).)

Existing federal law provides immigration relief that relies on a State’s interest in the welfare of children and provides for Special Immigrant Juvenile Status where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country. (8 U.S.C. Sec. 1101 (a)(27)(J).)

Existing federal law establishes that the care and custody of unaccompanied minors is the responsibility of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services instead of the Department of Homeland Security (DHS). (Homeland Security Act of 2002; P.L. 107-296, Sec. 462)

Existing case law holds that immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves are entitled to qualified legal representatives provided by the federal government for representation during all phases of their immigration proceedings, including appeals and custody hearings. (Franco-Gonzalez v. Holder, CV 10-02211-DMG)

This bill would prohibit local governments or local law enforcement from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor or vendor to detain immigrants for profit, on behalf of the Department of Homeland Security, Office of Refugee Resettlement, or the United States Marshals Service.

This bill would provide that when an immigrant detention facility chooses to enter into a contract to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the entity contracting with DHS or other federal agency to adhere to the standards for detaining those individuals described in the 2011 Operations Manual Immigration and Customs Enforcement (ICE) Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).

This bill would make clear that an immigrant detention facility can provide more rights than are required under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).

This bill would prohibit immigrant detention facilities, their agents, or those acting on their behalf from depriving immigrant detainees with: (1) access to legal representatives; (2) access to translation or interpreters; (3) medical care; (4) freedom from harm or harassment; and (5) privacy.

This bill would prohibit an immigration detention facility, agent or person acting on behalf of the facility, from depriving a detainee with access to medical care, including but not limited to, HIV medication and transition-related health care, and further prohibit the denial of medical care on the basis that an immigrant is likely to be released or deported.

This bill would require immigrant detention facilities to do all of the following when an immigrant detainee is transferred: (1) ensure that all medical records of the detainee are promptly transferred to ICE at the time of transfer or promptly provided to the facility to which the detainee is transferred; (2) ensure that all detainees receive all medications needed while in transit; (3) ensure that a detainee’s treatment plan is received by the medical personnel at the facility to which the detainee is being transferred; and (4) ensure that there is no delay, disruption, or denial of medical treatment, after or before detainee transfer.

This bill would prohibit the involuntary placement of immigration detainees in segregated housing because of the detainee’s actual or perceived gender, gender identity, gender expression, or sexual orientation.

This bill would require immigrant detention facilities to have a Legal Orientation Program, as specified, that includes an orientation on immigration removal proceedings and forms of relief, distribution of self-help materials, provision of private and individual consultations with unrepresented detainees to discuss their cases, and referrals to pro bono legal services.

This bill would authorize the Attorney General, any district attorney, or city attorney to bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and seek a civil penalty of $25,000, as specified, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).

This bill would authorize any individual who has been deprived of his or her rights to bring a civil action for damages, including, but not limited to, damages under Section 52 of the Civil Code, injunctive and other appropriate equitable relief, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).

This bill would require that if a civil penalty is requested by the Attorney General, a district attorney, or city attorney, the civil penalty shall be assessed individually against each person who is determined to have violated the legal rights of a detained immigrant and awarded to each individual whose rights are determined to be violated.

This bill would provide that the court may award the petitioner or plaintiff reasonable attorney’s fees and costs in addition to any damages, injunction, or other equitable relief.

This bill includes related legislative findings and declarations.

COMMENT

1. Stated need for the bill

According to the author:

In 2011 ICE developed the Operations Performance-Based National Detention Standards, which lays out the basic health and safety standards detainees should receive while in detention. However, these standards are not codified and are unenforceable. There have been widespread reports of human right’s abuses in detention facilities, including physical and sexual abuse, poor access to healthcare, little access to legal counsel, overuse of solitary confinement, and even death. LGBT detainees have reported facing discrimination, harassment, and abuse due to their sexual orientation. In many of these instances, even the Department of Homeland Security has found these deaths were preventable. Tragically, the incidents often go unaddressed and victims have no recourse.

Private, for-profit immigration detention facilities present a host of problems. The facilities are not subject to the Freedom of Information Act and operate with little to no oversight. Many also operate under a perverse incentive, where they are guaranteed a minimum number of detainees in their facility at all times, ensuring their profits. For example in Adelanto Detention Facility in Adelanto, California, ICE is guaranteed 975 detainees at all times with a per diem rate of $111 per bed per day. Perversely, if the number of beds increases over 975, the per diem rate drops to $50 per day per bed. The private detention contracts are designed to incentivize filling the most beds at all times, regardless of public safety or their destructive effects on communities. Indeed, private companies make billions in profits every year from incarcerating mothers, fathers, children, and others in our broken immigration system.

2. California’s recent history of empowering immigrants

California is leading the nation in ensuring that immigrants are treated with dignity and respect. While Congress fails to pass comprehensive immigration reform, California has exercised its state power to protect immigrants who are caught in limbo due to Washington’s inaction. Just last year, the legislature passed a historic package of 10 bills to empower immigrants in California—the “Immigrants Shape California” package. All 10 bills were signed into law by Governor Jerry Brown, including: AB 900 (Levine, Chapter 694, Statutes of 2015) to allow youth aged 18-21 who have escaped violence and terror in Central America to come under the protection of a guardianship that can also help the youth obtain Special Immigrant Juvenile Status immigration relief; SB 674 (De León, Chapter 721, Statutes of 2015) requiring law enforcement to complete certifications for a victim of crime who was helpful to the criminal investigation so that victims can apply for Victims of Crime immigration visas (U-Visas); and AB 1343 (Thurmond, Chapter 705, Statutes of 2015) requiring defense counsel in criminal proceedings to provide accurate and affirmative advice and defense to immigrants to avoid unintended immigration consequences, like detention, deportation, and loss of citizenship eligibility.

The State of California also shows its support for immigrants by funding legal services for unaccompanied minors and youth and legal services for immigrants to apply for naturalization, U-Visas, Victims of Human Trafficking Visas (T-Visas), Deferred Action for Parental Arrival (DAPA), Deferred Action for Childhood Arrival (DACA), and other immigration remedies.

3. Immigration detention is civil and immigrants are denied appointed counsel

Immigration detention is civil in nature and deportation unlike in criminal proceedings is not punitive. (Wong Wing v. United States, (1896) 163 U.S. 228.) Immigration and Customs Enforcement (ICE) states that they detain people for no purpose other than to secure their presence both for immigration proceedings and their removal. (U.S. Customs and Immigration Service, Performance Based National Detention Standards (2011), See <https://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf >[as of April 9, 2016].) “Unlike criminal incarceration, immigration detention is not to be punitive…ICE is to confine detainees for the administrative purpose of holding, processing, and preparing them for removal.” (United States Government Accountability Office, “Immigration Detention” Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse (Nov. 2013), p.8,<http://www.gao.gov/assets/660/ 659145.pdf> [as of April 9, 2016].)

Immigrants in civil detention are not provided with the same protections as individuals in the criminal justice system, such as appointed legal counsel. Even California immigrants with mental disabilities were deprived of counsel until a federal district judge in the Central District of California ordered that detained immigrants with mental disabilities are entitled to qualified legal representatives provided by the federal government for representation during all phases of their immigration proceedings, including appeals and custody hearings. (Franco-Gonzalez v. Holder, No. CV 10-02211 DMG (DTBx), 2013 WL 3674492, *8 (C.D. Cal Apr. 23, 2013).)

A nationwide class action lawsuit was filed in the U.S. District Court for the Western District of Washington in July 2014 on behalf of thousands of children who are challenging the federal government’s failure to provide them with legal representation in deportation hearings. (J.E.F.M. v. Holder, CV-01026-TSZ.) These children argue that the failure of the United States government to provide them with lawyers, even though they face the threat of deportation to countries where they may face persecution, violence, or even death, violates their basic rights under international law and is a violation of their due process rights under the Fifth Amendment of the United States Constitution. (“No person shall be…deprived of life, liberty, or property without due process of law” U.S. Const. Amend 5). Indeed, at least 83 deportees, including children, were reported murdered upon their return to Central America since January 2014. (Sibylla Brodzinsky & Ed Pilkington, US Government Deporting Central American Migrants to Their Deaths (Oct. 12, 2015), The Guardian <http://www.theguardian.com/us-news/2015/oct/12/obama-immigration-deportations-central-america> [as of April 12, 2016].) California’s immigrant children are expecting the J.E.F.M. court to decide whether they are to be considered part of the class in the next few weeks. Currently, over 13,800 children in California are not represented by legal counsel in immigration court, and a recent investigative report detailed that some unaccompanied minors who fled violence in Central America are being detained in California on behalf of the Office of Refugee Resettlement for months and in some cases years. (The California Report, Hundreds of Migrant Teens Are Being Held Indefinitely in Locked Detention (April 8-10, 2016) KQED <http://audio.californiareport.org./archive/R201604081630/a> [as of 4/9/16])

Without procedural protections, such as access to appointed counsel, immigrants, including children, in immigration detention facilities are arguably more vulnerable to abuse and in need of additional protections and safeguards. Mandating that immigrant detention facilities adhere to national immigration detention standards and affording immigrants a private right of action against the detention facility when the immigrant’s legal rights are violated will lead to more accountability and less abuse.

4. Immigrant detention facilities in California

Local governments and local law enforcement entities are not required to detain immigrants on behalf of federal immigration authorities. The ones in California that decide to detain immigrants do so by choice. Federal immigration authorities enter into Intergovernmental Service Agreements (IGSAs) with local governments or local law enforcement whereby the local entity agrees to detain immigrants on behalf of the federal government. Local governments or local law enforcement can then choose to detain the immigrants in their own facilities or subcontract with for-profit detention facilities instead. There are currently four for-profit detention facilities in California. They are located in Adelanto, Calexico, Bakersfield, and San Diego.

Ensuring that immigrants, who are oftentimes in need of special care due to persecution in their country of escape or who have suffered arduous journeys, are provided with the services they need to thrive mentally and physically often conflicts with corporate profit objectives. For-profit detention facilities are accountable to their shareholders and not the people of the State of California. For example, for-profit detention facilities claim exemptions to the public disclosure requirements under the Freedom of Information Act (FOIA) (5 U.S.C. Sec. 552) because they are private corporations, which makes the potentially unlawful conduct occurring within the facility hidden from discovery. A 2012 article in Forbes noted that “if serious questions arise about…the 16,500 federal immigration detainees held in privately-operated facilities under contracts with the U.S. Department of Homeland Security, there’s no legal remedy in place forcing those questions to be answered.” (Matt Stroud, Private Prisons Are Exempted From Federal Disclosure Laws; Advocates Say that Should Change, (Feb. 7, 2013) Forbes, <http://www.forbes.com/sites/mattstroud/2013/02/07/private-prisons-are-exempted-from-federal-disclosure-laws-advocates-say-that-should-change/#234489614d0d> [as of April 9, 2016].) The private detention facilities similarly claim an exemption to California’s State counterpart, the California Public Records Act (CPRA) (Gov. Code Sec 6250 et seq). Community Initiatives for Visiting Immigrants in Confinement (CIVIC), a sponsor of this bill, notes that despite numerous reports of inadequate medical care, suicide attempts, sexual assault, and even deaths at for profit immigrant detention facilities, it is difficult to obtain information about these facilities. CIVIC explains the process for obtaining information about private for profit immigrant detention facilities as follows:

[A] person can FOIA the IGSA between ICE and the private prison. When this occurs, ICE is required to ask the corporation if they are OK with the government disclosing it. If the corporation is OK, then it will be disclosed. However, it is completely in the discretion of the private prison corporation whether any document pertaining to the IGSA or any other aspect of the business is disclosed through a FOIA request.

The public policy of the State of California (See comment 2 above) is not in line with allowing corporations, who operate with no public accountability and are exempted from public disclosure laws, to profit from holding California’s immigrants, who are oftentimes eligible for immigration relief, in prison like conditions while those immigrants have none of the due process protections that are afforded to Californians held in criminal detention. This population of Californians is exceptionally vulnerable to abuses due to language barriers and inability to access counsel. It is not the public policy of this state to allow vulnerable Californians to be placed behind closed doors in settings with no accountability to the public for how they treat immigrant detainees. Therefore, it is consistent with the public policy of the state of California to prohibit local governments and local law enforcement from contracting with private for profit immigrant detention facilities to fulfill the commitment local governments and local law enforcement voluntarily make to the federal government to hold immigrants in civil detention on behalf of the federal government.

5. Reports of Abuses in Immigration Detention Facilities:

Staff notes that there are numerous reports detailing abuses of immigrant detainees in immigration detention facilities in California.^[1]

a. LGBT Abuse

Human Rights Watch notes in their letter of support that they “have uncovered widespread abuse against transgender women in immigration detention, including precisely the kind of abusive misuse of solitary confinement SB 1289 seeks to prevent.” In immigration detention, those belonging to the lesbian, gay, bisexual, and transgender (LGBT) community are among the most vulnerable and reported to be subject to denial of hormones and other medications, forced into long stays in solitary confinement, and subject to sexual assault, and other abuses. (Matt Schiavenza, LGBT Activists Are Still Fighting (June 28, 2015) <http://www.theatlantic.com/national/archive/2015/06/ice-transgender-lgbt-immigrants/397046/> [as of April 9, 2016]; “Do You See How Much I’m Suffering Here?” Abuse Against Transgender Women in US Immigration Detention, (March 2016) Human Rights Watch.) LGBT immigrants in detention are oftentimes seeking asylum due to persecution in their country of origin and are eligible for asylum because of being persecuted as LGBT. Studies note that in the LGBT detained population there are higher accounts of the use of solitary confinement, sexual abuse, and poor medical care in immigration detention facilities. (See National Immigrant Justice Center, Stop Abuse of Detained LGBT Immigrants, <http://www.immigrantjustice.org/stop-abuse-detained-lgbt-immigrants> [as of April 9, 2016].) In their letter of support, Human Rights Watch detailed abuses against transgender women as follows:

In our recent research on abuse against transgender women in immigration detention, many of the women we interviewed had been subjected to sexual assault and ill-treatment in detention, and others had been held in abusive conditions of indefinite solitary confinement that are justified by prison authorities as a measure for transgender detainees’ protection. Many of the cases of abuse of transgender women we documented occurred in California. As part of its transgender detention policy, ICE now detains a majority of transgender women in a segregated unit at the Santa Ana City Jail, in Santa Ana, California.

All of the transgender women who had been at Santa Ana and were interviewed by Human Rights Watch said that they were consistently subjected to strip searches by male guards. Many of these women were repeatedly sexually assaulted prior to fleeing their home countries and described the experience of being required to strip nude and undergo full cavity searches by male guards as painfully reminiscent of prior sexual assaults…

Several of the transgender women who had been at Santa Ana and were interviewed by Human Rights Watch said they had been subjected to arbitrary “lockdowns,” raising concerns that the facility is overusing lockdowns and solitary confinement in ways that violate the rights of the individuals held there and that potentially subject vulnerable detainees to additional trauma. SB 1289 would prohibit the regular use of solitary confinement for any individuals because “he or she is a member of the lesbian, gay, bisexual, transgender, or queer communities.”

Several transgender women told Human Rights Watch that they were unable to access their HIV medications for periods ranging from two to three months after entering detention, including one transgender woman who was held in the segregated unit at Santa Ana. SB 1289 would require that no “delay or disruption” to medical treatment occur.

b. Pregnant women are held in detention facilities

CIVIC, a sponsor of this bill, detailed abuse of a pregnant woman in a for-profit detention facility in California as follows:

[The for profit detention facility] staff fully shackled [the pregnant woman] while she was transported to a hospital to receive urgent medical care related to her pregnancy. While in transit, she tripped on the shackles and fell on her stomach. She suffered a miscarriage the next day. After a doctor confirmed she had suffered a miscarriage, [the woman] did not receive any follow-up gynecological care to ensure she had not contracted an infection or continued hemorrhaging, despite the fact that [the woman] was experiencing ongoing bleeding and vaginal irritation. This shackling violated the [2011 Operations Manual ICE Performance-Based National Detention Standards], which bars the restraint of pregnant women absent “extraordinary circumstances that render restraints absolutely necessary.”

c. In an attempt to effectuate change in for-profit immigrant detention facilities, immigrant detainees use their bodies to protest through hunger strikes

Reports document poor conditions and treatment in immigration detention facilities, including deaths allegedly due to substandard medical care. (See e.g. Fatal Neglect How Ice Ignores Death in Detention (February 2016) American Civil Liberties Union, Detention Watch Network, and Heartland Alliance’s National Immigrant Justice Center; Abuse in Adelanto: An Investigation into a California Town’s Immigration Jail, CIVIC & Detention Watch Network, p. 16.) Frontline reported that immigrants held in immigration detention facilities lack effective recourse if they are victims of crime, including sexual abuse and assault, and sometimes the government deports them before an investigation is completed. (Sarah Childress, Why Immigrant Detainees Still Aren’t Safe from Abuse (Nov. 20, 2013) Frontline <http://www.pbs.org/wgbh/frontline/article/why-immigrant-detainees-still-arent-safe-from-abuse/> [As of April 9, 2016]; Catherine Rentz, How Much Sexual Abuse Gets “Lost in Detention”? (October 19, 2011) Frontline <http://www.pbs.org/wgbh/frontline/article/how-much-sexual-abuse-gets-lost-in-detention/> [As of April 17, 2016])

With no ability to fight against poor detention conditions, detainees have turned to hunger strikes to protest poor conditions in immigrant detention facilities. Late last year, it was reported that hundreds launched a hunger strike at the private for-profit immigrant detention facility in Adelanto, California. (Katie Linthicum, Hundreds launch hunger strike at immigrant detention center in Adelanto, Calif. (Nov. 6, 2015) Los Angeles Times <http://www.latimes.com/local/lanow/la-me-ln-immigrant-hunger-strike-20151106-story.html> [as of April 9, 2016].) More than 300 men were reported to have stopped eating to protest conditions including poor medical care. Id. Hunger strikers included an asylum seeker from Ghana who had been in immigration detention for 11 months since he asked for asylum at the border. Id.

6. Codifying minimum standards for immigrant detention facilities to follow in the treatment of immigrants held in civil detention on behalf of federal immigration authorities

Immigration and Customs Enforcement (ICE) promulgated a series of national standards laying out the requirements for basic care in immigrant detention facilities. The most recent are the Performance-Based National Detention Standards 2011 (PBNDS 2011). ICE uses national detention standards to govern conditions of confinement in its detention facilitates established through contracts with those facilities. (United States Government Accountability Office, “Immigration Detention” Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse, p. 12 (Nov. 2013), <http://www.gao.gov/assets/660/659145.pdf> [as of April 9, 2016].) Immigration detention facilities already agree to follow these standards pursuant to the Intergovernmental Service Agreements (IGSAs) between the federal government and the local governments, including when the local entities contract out with for-profit corporations. (See e.g. Mesa Verde IGSA pp. 4, 7, 19 <http://www.documentcloud.org/documents/2631228-Mesa-Verde-CA-IGSA-Contract.html> [as of April 9, 2016].)

However, these standards are not required to be adhered to under any federal or state law. And, there is no recourse for individuals when the facilities fail to follow the standards. In support of SB 1289, Human Rights Watch explains:

Many of [the abuses documented in California] violate the 2011 Performance-Based National Detention Standards (PBNDS) promulgated by US Immigration and Customs Enforcement (ICE) in 2011. The PBNDS establish concrete standards on access to counsel, visitation, medical and mental health care, solitary confinement, and sexual assault prevention. Unfortunately, the measures are not legally binding and have only been implemented at select facilities that have voluntarily elected to modify their operating agreements with ICE. Without a mechanism to ensure compliance with these standards by all facilities, such as the one SB 1289 would provide, too many immigrant detainees suffer basic rights abuses.

An additional federal policy, ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees), was created to govern the placement of immigrant detainees in solitary confinement. The directive was created after a joint study by two human rights organization revealed that immigrant detainees were increasingly placed in solitary confinement due to mental illness, sexual orientation, or not speaking English. (See Heartland Alliance and Physicians for Human Rights (Sept. 2012) Invisible in Isolation: The Use of Segregation and Solitary Confinement in Immigration Detention.) This policy directive is equally unenforceable by immigrant detainees.

This bill makes it clear that every immigrant detention facility in California must, at a minimum, meet the same objective national standards for the detention of immigrants. Mandating that all immigrant facilities in California must meet the same minimum standards will arguably lead to uniformity of treatment of immigrant detainees across the state and will diminish abuse in the immigrant detention facilities.

7. Enforcement mechanism

This bill would require that immigrant detention facilities adhere to the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees), and other rights granted by this bill. This bill would provide an enforcement mechanism whereby any immigrant detainee who has been deprived of their rights would be allowed to bring a civil action for damages, including, but not limited to, damages under Civil Code Section 52, injunctive and other appropriate equitable relief, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees). The bill further specifies that an action brought pursuant to the bill is independent of any other action, remedy, or procedure that may be available to an individual under any other provision of law. As such, this bill preserves all other remedies that may be available to the aggrieved immigrant detainee.

This bill also provides an enforcement mechanism to the Attorney General, any district attorney, or city attorney whereby they may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California and may also seek a civil penalty of $25,000, as specified, when an immigrant detention facility, or its agent or person acting on its behalf deprives an immigrant detainee of their rights created under this bill or rights under the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).

8. Opposition Arguments

The California State Sheriffs’ Association writes the following in opposition:

When local correctional facilities house detained immigrants, they do so in coordination with the federal government, according to the laws and standards created by federal authorities. Additionally, state regulations provide minimum standards for all public detention facilities. We believe SB 1289 inappropriately inserts the state into matters that are appropriately governed by federal authorities. Given the fact that the federal government has occupied the field of immigration enforcement, it is certainly possible that this measure would be preempted by federal law.

Additionally, by creating public and private rights of action for alleged violations of the federal guidelines and the bill’s standards, SB 1289 exposes local governments to state civil liability despite federal oversight and enforcement. We are also concerned that the bill’s provisions limiting for-profit contracting for detention services could inadvertently jeopardize a local government’s ability to participate with federal partners. This bill’s ban on contracting with private entities could also result in overcrowded local facilities being left as the only viable option for immigrant detention.

In response to the California State Sheriffs’ Association’s opposition to immigrant detainees being able to enforce their rights to be free from abuse, the author states:

The standards in SB 1289 are already included in all immigration detention contracts in California, but are currently not being upheld in large part because there is no consequence if facilities fall below these standards. In fact, there have been many accounts documenting repeated failures to adhere to these standards, resulting in poor medical treatment and other substandard care. (See e.g., Fatal Neglect, How ICE ignores Deaths in Detention (Feb. 2016) American Civil Liberties Union, Detention Watch Network, and Heartland Alliance’s National Immigrant Justice Center; Congressional letter to ICE about Adelanto conditions, (July 14, 2015), https://www.documentcloud.org/documents/2165708-adelanto-letter.html.)

There has to be a consequence for facilities that do not uphold the standards, otherwise abuse and neglect will continue. And, despite numerous reports of facilities falling below the detention standards, historically there has been little to no action even when facilities fall below the federal standards. Further, immigration detention is civil in nature. It is thus important that we provide protections to this especially vulnerable population, especially since these individuals are not afforded some of the protections built into the criminal justice system, such as the right to government-appointed counsel.

In response to the California State Sheriffs’ Association’s assertion that “SB 1289 inappropriately inserts the state into matters that are appropriately governed by federal authorities…it is certainly possible that this measure would be preempted by federal law,” the author responds:

Immigration is federally regulated. However, this bill is not about immigration enforcement, this is about ensuring state standards for treating people humanely. The state is fully within its jurisdiction to assert higher standards of care for detainees being held in our state. Regardless, the facilities in California are contracting with local governments, which the state has purview over.

Staff notes that local governments and local law enforcement entities in California are choosing to enter into contracts with federal immigration authorities. They are not mandated to enter into contracts to detain immigrants on behalf of federal immigration authorities. In fact, less than twenty local government or local law enforcement entities out of the hundreds of cities, counties, police departments, and Sheriffs offices have made the choice to get paid by the federal government to detain immigrants. The state would not regulate the federal government through any provision in this bill. The state would only regulate the local governments and local law enforcement entities. These are entities the state has clear authority to regulate.

In response to California State Sheriffs’ Association’s concern that the bill’s ban on contracting out with private for-profit detention facilities “could also result in overcrowded local facilities being left as the only viable option for immigrant detention,” the author responds:

There are alternatives to detention that exist for immigrants that are not being utilized because the private for-profit detention facilities are guaranteed they will be paid for certain numbers of detainees every day. These alternatives include releasing immigrants on bond or through other alternatives to bond. (See Mills Legal Clinic Stanford Law School Immigrants’ Rights Clinic and Detention Watch Network (Aug. 2010) Community-based Alternatives to Immigration Detention); Mark Noferi, Esq., A Human Approach Can Work: The Effectiveness of Alternatives to Detention for Asylum Seekers (July 2015) American Immigration Council.) Again, local government entities and local law enforcement entities do not have to participate in detaining immigrants in their county or city jails. In fact, if there is jail overcrowding, the county or city or law enforcement entity should be using their jail facilities to hold criminal detainees, not to choose to make extra money holding immigrants in civil detention.

Staff again notes that detaining immigrants on behalf of the federal immigration authorities is optional. Local governments can avoid any issues of exacerbated overcrowding at jail facilities by choosing not to engage in civilly detaining immigrants. Moreover, any concerns regarding a local government’s liability due to a private right of action can equally be eliminated if the entities choose not to contract to detain immigrants. However, the bill makes it clear that if California’s local governments or local law enforcement entities make the choice to detain immigrants as civil immigration detainees, the immigrants will be held under uniform humane standards and will be afforded a mechanism to enforce their legal rights.

Support: Alliance for Boys and Men of Color; American Immigration Lawyers’ Association (AILA); A New Way of Life Re-entry; Asian Law Alliance; Asian Pacific Islander Legal Outreach; Aspire; California Immigrant Policy Center (CIPC); California Immigrant Youth Justice Alliance; Catholic Charities of the East Bay; Center for Gender and Refugee Studies; Central American Resource Center-Los Angeles; Central American Resource Center of Northern California; Central Laboral de Graton; Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA); Community United Against Violence; Congregations Building Community; Dolores Street Community Services; East Bay Sanctuary Covenant; Ella Baker Center for Human Rights; Enlace; Familia Trans Queer Liberation Movement; Friends Committee on Legislation; Human Rights Watch; Immigrant Youth Coalition; Inland Empire Immigrant Youth Coalition; Interfaith Movement for Human Integrity; Jewish Family Services of Los Angeles; Just Cause/Causa Justa; Justice Now; Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Legal Services for Prisoners with Children; Los Angeles LGBT Center; Marin Interfaith Alliance; Motivating Individual Leadership for Public Advancement; Mount Diablo Unitarian Universalist Church; National Immigration Law Center (NILC); Pangea Legal Services; PICO; Prison Law Office; San Diego Volunteer Lawyer Program (SDVLP); San Fernando Dream Team; San Joaquin Immigrant Youth Coalition; Services Immigrant Rights and Education Network (SIREN); Silicon Valley Debug; Social Justice Collaborative; Transgender Law Center; TransLatin@; UC Irvine Law Clinic; Vital Immigrant Defense Advocacy and Services Incorporated (VIDA); one individual

Opposition: California State Sheriffs’ Association

HISTORY

Source: Immigrant Legal Resource Center (ILRC); Community Initiatives for Visiting Immigrants in Confinement (CIVIC)

Related Pending Legislation: None known

Prior Legislation:

AB 900 (Levine, Chapter 694, Statutes of 2015) See Comment 2.

SB 674 (de Leon, Chapter 721, Statutes of 2015) See Comment 2.

AB 1343 (Thurmond, Chapter 705, Statutes of 2015) See Comment 2.

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1. See e.g. American Civil Liberties Union, Detention Watch Network, and Heartland Alliance’s National Immigrant Justice Center Fatal Neglect How Ice Ignores Death in Detention (February 2016); “Do You See How Much I’m Suffering Here?” Abuse Against Transgender Women in US Immigration Detention, (March 2016) Human Rights Watch. ↑