(1)Existing state law provides that a law enforcement official has discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold after the person becomes eligible for release only if continued detention of the individual on the basis of the hold does not violate federal, state, or local law, or any local policy, and the person has been convicted of certain crimes.

This bill would require a local law enforcement official to cooperate with federal immigration officials by detaining an individual convicted of a felony on the basis of an immigration hold for up to 48 hours, as specified, after the person becomes eligible for release from custody if continued detention on the basis of the immigration hold would not violate federal law. By creating new duties for local officials, this bill would impose a state-mandated local program. The bill would also make conforming changes.

(2)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 the statutory provisions noted above.

Date of Hearing: March 28, 2017

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Requires law enforcement to cooperate with federal immigration by detaining an individual convicted of a felony for up to 48 hours on an immigration hold, as specified, after the person becomes eligible for release from custody. Specifically, this bill:

1. Repeals the Trust Act.
   
2. Requires local law enforcement to cooperate with federal immigration officials by detaining an individual convicted of a felony on the basis of an immigration hold after that individual becomes eligible for release from custody if the continued detention would not violate federal law.
   
3. Clarifies that the maximum detention period for an immigration hold is 48 hours, excluding Saturdays, Sundays, and holidays.

EXISTING FEDERAL LAW:

1. Provides that any authorized immigration officer may at any time issue Immigration Detainer-Notice of Action, to any other federal, state, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department of Homeland Security (DHS) seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the DHS, prior to release of the alien, in order for the DHS to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible. (8 CFR Section 287.7(a).)
   
2. States that upon a determination by the DHS to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the DHS. (8 CFR Section 287.7(d).)
   
3. Authorizes the Secretary of Homeland Security under the 287(g) program to enter into agreements that delegate immigration powers to local police. The negotiated agreements between ICE and the local police are documented in memorandum of agreements (MOAs). (8 U.S.C. Section 1357(g).)
   
4. States that a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. 8 USC 1373, subd. (a).)
   
5. Specifies that no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
   
   1. Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (8 USC 1373, subd. (b)(1).)
      
   2. Maintaining such information. (8 USC 1373, subd. (b)(2).)
      
   3. Exchanging such information with any other Federal, State, or local government entity. (8 USC 1373, subd. (b)(3).)
      
6. Provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. 14th Amend.)
   
7. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Const. 4th Amend.)

EXISTING LAW:

1. Defines "immigration hold" as "an immigration detainer issued by an authorized immigration officer, pursuant to specified regulations, that requests that the law enforcement official to maintain custody of the individual for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays, and to advise the authorized immigration officer prior to the release of that individual." (Gov. Code, § 7282, subd. (c).)
   
2. States that a law enforcement official shall have discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold after that individual becomes eligible for release from custody only if the continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy, and only under the following circumstances:
   
   1. The individual has been convicted of a serious or violent felony; (Gov. Code, § 7282.5, subd. (a), subd. (1).)
      
   2. The individual has been convicted of a felony punishable by imprisonment in the state prison; (Gov. Code, § 7282.5, subd. (a), subd. (2).)
      
   3. The individual has been convicted within the past five years of a misdemeanor for a crime that is punishable as either a misdemeanor or a felony, or has been convicted at any time of a specified felony; (Gov. Code, § 7282.5, subd. (a), subd. (3).)
      
   4. The individual is a current registrant on the California Sex and Arson Registry; (Gov. Code, § 7282.5, subd. (a), subd. (4).)
      
   5. The individual is arrested and taken before a magistrate on a charge involving a serious or violent felony, a felony punishable by imprisonment in state prison, or other specified felonies, and the magistrate makes a finding of probable cause as to that charge after a preliminary hearing; and (Gov. Code, § 7282.5, subd. (a), subd. (5).)
      
   6. The individual has been convicted of a federal crime that meets the definition of an aggravated felony as specified, or is identified by the United States Department of Homeland Security's Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant. (Gov. Code, § 7282.5, subd. (a), subd. (6).)
      
3. States that if none of the conditions listed above is satisfied, an individual shall not be detained on the basis of an immigration hold after the individual becomes eligible for release from custody. (Gov. Code, § 7282.5, subd. (b).)
   
4. Specifies that when there is reason to believe that any person arrested for a violation of specified drug related offenses, may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters. (Health and Saf. Code, § 11369.)
   
5. States the right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. (California Const., Art. I, § 13.)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Kate Steinle was murdered by a six time felon in San Francisco. He was protected by San Francisco’s sanctuary city program. Additionally, two sheriffs were similarly killed by an undocumented immigrant who was allowed back into the country. We need to make sure we are not protecting felons at the expense of innocent people.
   
   “The U.S. Department of Homeland Security implemented more refined Civil Immigration Enforcement Priorities in 2015, placing increased emphasis and focus on removal of undocumented, convicted felons and other public safety threats over non-criminals. 92% of ICE removals initiated in the interior of the country were of convicted criminals. Sanctuary city programs like San Francisco’s undermine the Department’s priorities, reducing effectiveness and protecting criminals. This bill aligns California law with federal immigration policy and ensures felons are not released back into our communities.”
   
2. Past Federal Immigration Programs: Secure Communities (a.k.a. S-Comm), launched in October 2008, was a Department of Homeland Security (DHS) program for detecting non-citizens who come into custody of law enforcement. Ordinarily, when someone is arrested and taken to a police station or jail, their fingerprints are scanned and sent to the FBI to check against federal criminal databases. Under the Secure Communities program, those prints were also checked against DHS immigration databases, and information about matching prints was sent to the local DHS Immigration and Customs Enforcement (ICE) field office and the originating jail or police station. ICE could initiate deportation proceedings as a result of one’s identification through Secure Communities. Secure Communities made use of immigration detainers (a.k.a. immigration holds). Immigration detainers are requests from federal immigration authorities to local law enforcement that they continue to hold an individual after they would otherwise be released from custody.
   
   California’s TRUST Act was enacted in 2013. (AB 4 (Ammiano), Chapter 570, Statutes of 2013.) The TRUST Act limits immigration “hold” or detainer requests, triggered by deportation programs like Secure Communities. The requests caused immigrants to be detained for extra time for deportation purposes.
   
   On November 20, 2014, the Obama administration stopped S-Comm and put in place the Priority Enforcement Program (PEP). PEP was similar to S-Comm, in that it continued to check the immigration status of all individuals by reviewing fingerprints obtained by local police at the point of booking. When an individual was arrested and booked by a law enforcement officer for a criminal violation, his or her fingerprints were submitted to the FBI for criminal history and warrant checks. This same biometric data was also sent to U.S. Immigration and Customs Enforcement (ICE). Under PEP, ICE could determine whether the individual was a priority for removal, consistent with the DHS enforcement priorities. Under PEP, ICE would seek the transfer of a removable individual when that individual had been convicted of an offense listed under the DHS civil immigration enforcement priorities, had intentionally participated in an organized criminal gang to further the illegal activity of the gang, or posed a danger to national security. (https://www.ice.gov/sites/default/files/documents/Fact%20sheet/2015/pep_brochure.pdf)
   
   Under PEP, ICE only sought the transfer of individuals in state and local custody under specific, limited circumstances. ICE would only issue a detainer where an individual fit within DHS’s narrower enforcement priorities and ICE had probable cause that the individual was removable. In many cases, rather than issue a detainer, ICE would instead request notification (at least 48 hours, if possible) of when an individual is to be released. ICE would use that time to determine whether there was probable cause to conclude that the individual was removable. (Id.)
   
   Although PEP relied more on requests to local law enforcement to notify ICE when an individual was released than hold requests, concerns were raised that the requests for notifications of release resulted in delays in release to allow ICE time to detain the individual.
   
   This bill would repeal the Trust Act and instead require that that law enforcement continue to keep individuals convicted of a felony in custody for up to 48 hours on immigration holds when they would otherwise be eligible for release.
   
3. Immigration Policies of the Trump Administration: The Trump administration is in the process of formulating the immigration policy of the executive branch. Based on executive orders and other statements from the president, it appears that immigration enforcement is likely to be aggressive.
   
   On January 25, 2016, President Trump signed a pair of executive orders on immigration. The orders crack down on people in the country without documentation and the cities that don’t readily hand them over for deportation. www.washingtonpost.com/news/post-nation/wp/2017/01/26/trump-wants-to-empower-local-police-to-enforce-immigration-law-raising-fears-of-racial-profiling/?utm_term=.f84cf1e505c6
   
   The executive orders issued on January 25, 2016 included the following action items, among others:
   
   1. Direct action for the hiring of an additional 5,000 border patrol agents.
      
   2. Direct action for the hiring of an additional 10,000 immigration officers.
      
   3. Instruct homeland security to broker agreements with governors and local officials so that state and local law enforcement authorities can enforce immigration law.
      
   4. Declare that “sanctuary jurisdictions” be prohibited from receiving federal grants.
      
   5. Direct appropriate action to terminate the Priority Enforcement Program and to reinstitute the immigration program known as "Secure Communities."
      
   6. Direct construction of a southern border wall.
      
4. Potential Constitutional Violations and Civil Liability for Maintaining Custody of an Individual Solely on the Basis of an Immigration Hold: Law enforcement agencies risk civil liability if they continue to hold an individual in custody on an immigration hold when there is no other basis to detention. A detention based solely on an immigration hold may violate the State and Federal Constitutions prohibition against unreasonable seizure. A violation of an individual’s constitutional rights can expose a law enforcement agency to civil liability.
   
   The intersection of civil liability for law enforcement and immigration detainer requests was addressed by the United States District Court for the District of Oregon. In the case of Miranda-Olivares v. Clackamas County, 2014 U.S. Dist. LEXIS 50340, federal authorities issued an immigration detainer request when Ms. Miranda-Olivares was taken into to custody by a local law enforcement agency on a state criminal charge. On the basis of that detainer request, the law enforcement agency did not allow Ms. Miranda-Olivares to post bail to be released from custody on her pending state charge. Ms. Miranda-Olivares brought a civil action alleging that the law enforcement agency had unlawfully detained her on the basis of the immigration detainer request.
   
   The District Court in Miranda-Olivares noted that unlike criminal detainers, which are supported by a warrant and require probable cause, there is no requirement for a warrant and no established standard of proof, such as reasonable suspicion or probable cause, for issuing an ICE detainer request. Because of that distinction, the court concluded that federal law does not require law enforcement agencies to detain suspected aliens upon receipt of an immigration detainer request and that the jail was at liberty to refuse ICE's request to detain Miranda-Olivares if that detention violated her constitutional rights. (Miranda-Olivares v. Clackamas County, 2014 U.S. Dist. LEXIS 50340, p. 24.)
   
   The District Court observed that the judge had ordered the pre-trial release of Miranda-Olivares at the arraignment upon posting of bail. “It is undisputed that she could and would have posted bail but for the County's custom and practice of continued detention upon receipt of the ICE detainer. Both at the arraignment (had bail been posted) and upon resolution of her state charges, the County no longer had probable cause to justify her detention.” (Id. at 30.)
   
   The District Court found that “. . . that the County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention. That custom and practice violated Miranda-Olivares's Fourth Amendment rights by detaining her without probable cause both after she was eligible for pre-trial release upon posting bail and after her release from state charges.” (Id. at 32-33.) Based on its findings, the court determined that Ms. Miranda-Olivares was entitled to money damages on the basis of the violation of her Fourth Amendment rights.
   
   California law enforcement risks similar civil liability if they hold individuals solely on the basis of a federal immigration detainer request.
   
5. California Attorney General’s Opinion On Immigration Detainer Requests: The California Attorney General issued an opinion on June 25, 2014 which reiterated that immigration detainer requests are voluntary and warned local law enforcement about the potential for civil liability if they continued to hold people on immigration detainer requests when they were otherwise eligible to be released from custody.
   
   The opinion stated that “. . . , satisfaction of the TRUST Act conditions for compliance with ICE immigration detainer requests does not mean that compliance is mandatory. As we explained in Bulletin No. 2012-DLE-01, law enforcement agencies in California are not required to fulfill an ICE immigration detainer. Recent court rulings and correspondence from ICE’s Acting Director have further confirmed that ICE immigration detainers are not mandatory.” (Information Bulletin, California Department of Justice, June 25, 2014, p. 2.)
   
   Attorney General’s opinion advises that, “ . . . , in circumstances where compliance with ICE immigration detainers is permitted, an agency may use its discretion whether to devote resources to holding a suspected undocumented immigrant on behalf of the federal government.” (Id. at p. 2-3.)
   
   The attorney general warned that even compliance with the TRUST Act does not necessarily immunize a local law enforcement agency from civil liability related to immigration detainer requests and referenced the Miranda-Olivares.
   

The Miranda-Olivares court held, consistent with Information Bulletin No. 2012-DLE-01, that local authorities can choose to comply with a request from ICE, but are not required to do so by law. The court also held that because compliance with an ICE detainer is voluntary rather than mandatory, a local agency could violate the Fourth Amendment by detaining an individual solely based on the request of ICE, without some other probable cause for arrest. No state or federal court with California jurisdiction has yet ruled on whether detentions authorized under the TRUST Act, but solely based on the request of ICE, violate the Constitution. If a California court adopts the reasoning of the district court in Miranda-Olivares, local jurisdictions may be held liable for damages for such a detention. Further, compliance with the TRUST Act may not immunize local jurisdictions from liability. As described above, the TRUST Act permits a law enforcement official to detain an individual on the basis of an immigration hold after that individual becomes otherwise eligible for release from custody only if the continued detention would “not violate any federal law . . . .” (Gov. Code, § 7282.5, subd. (a).) If continued detention is found to violate the Fourth Amendment, it would therefore likely be no defense for the local jurisdiction to argue that it was acting under the authority of the TRUST Act. (Id. at p. 3.)

This bill would mandate that law enforcement honor immigration detainer requests under specified circumstances. That mandate would force local law enforcement to hold individuals in custody in situations where there is not a warrant for the individual’s arrest or probable cause to believe that the individual has committed a crime. Mandating continued detention under such circumstances likely violates the Federal and State Constitution prohibitions against unreasonable seizure. Such actions would violate civil liberties and increase local law enforcement agencies’ exposure to civil liability.

1. ICE Involvement Can Impede Cooperation Between Local Law Enforcement and the Community: A study by the University of Illinois – Chicago surveyed Latino immigrants in Cook (Chicago), Harris (Houston), Los Angeles, and Maricopa (Phoenix) counties on their perception of local law enforcement when there’s involvement in immigration enforcement found the following:
   1. 44 percent of Latinos surveyed reported they are less likely to contact police officers if they have been the victim of a crime because they fear that police officers will use this interaction as an opportunity to inquire into their immigration status or that of people they know;
      
   2. 45 percent of Latinos stated that they are less likely to voluntarily offer information about crimes, and 45 percent are less likely to report a crime because they are afraid the police will ask them or people they know about their immigration status;
      
   3. 70 percent of undocumented immigrants reported they are less likely to contact law enforcement authorities if they were victims of a crime;
      
   4. Fear of police contact is not confined to immigrants. For example, 28 percent of US-born Latinos said they are less likely to contact police officers if they have been the victim of a crime because they fear that police officers will use this interaction as an opportunity to inquire into their immigration status or that of people they know; and
      
   5. 38 percent of Latinos reported they feel like they are under more suspicion now that local law enforcement authorities have become involved in immigration enforcement. This figure includes 26 percent of US-born respondents, 40 percent of foreign-born respondents, and 58 percent of undocumented immigrant respondents. (Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, University of Illinois at Chicago, Nik, Theodore et al., (May 2013), available at http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF)
      
2. Argument in Opposition: According to the American Civil Liberties Union of California, “AB 298 is contrary to existing law that sets reasonable limits on local participation with these deeply flawed detainer programs. California’s TRUST Act, AB 4 (Ammiano) (2013) ensures that people with low-level, non-violent misdemeanor offenses are not unnecessarily held for deportation and provides local discretion to not use scarce taxpayer dollars to detain immigrants beyond their scheduled release time. The TRUST Act was enacted in response to the immigration hold and detainer requests triggered by the federal government’s controversial ‘Secure Communities’ or ‘S-Comm’ deportation program. In 2014, a federal court found S-Comm unconstitutional and in November 2014, the Obama Administration acknowledged it failures and dropped the program. In January 2017, the Trump Administration reversed course and issued an executive order reinstituting S-Comm and significantly expanding enforcement against individuals a with criminal convictions and criminal charges.
   
   “California has already learned the painful lessons of how detainer programs undermine public safety by eroding community trust in law enforcement permanent rip individuals with low-level offense from their families, and siphon away local financial resources.”
   
3. Related Legislation:
   
   1. AB 1252 (Allen), would repeal the TRUST Act and prohibit state grants to county and local “sanctuary jurisdictions.” AB 1252 is pending hearing in this committee.
      
   2. AB 3 (Bonta), would require the California Department of Social Services to issue grants to provide legal training and assistance to county public defenders on issues relating to the immigration consequences of criminal convictions. AB 3 is awaiting hearing in the Assembly Appropriations Committee.
      
   3. SB 6 (Hueso), would require the Department of Social Services to contract with specified organizations to provide legal services to individuals facing deportation proceedings who are not otherwise entitled to legal representation. SB 6 is on Senate Third Reading.
      
   4. SB 54 (De León), would prohibit state and local law enforcement agencies and school police and security departments from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. SB 54 is on Senate Third Reading.
      
   5. SB 31 (Lara), would prohibit a state or local agency or a public employee from providing or disclosing to the federal government personally identifiable information regarding a person’s religious beliefs, practices, or affiliation, as specified, when the information is sought for compiling a database of individuals based on religious belief, practice or affiliation, national origin, or ethnicity for law enforcement or immigration purposes. SB 31 is awaiting hearing in the Senate Appropriations Committee.
      
4. Prior Legislation:
   
   1. AB 4 (Ammiano), Chapter 570, Statutes of 2013, prohibits a law enforcement official, as defined, from detaining an individual on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from custody, unless, at the time that the individual becomes eligible for release from custody, certain conditions are met, including, among other things, that the individual has been convicted of specified crimes.
      
   2. SB 713 (Nielsen), of 2015-2016 Legislative Session, would have expanded the list of prior felony convictions under the TRUST Act to include the conviction of a felony which formed the basis upon which the individual was previously deported, thereby allowing a law enforcement official, to detain an individual with that felony conviction on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from custody. SB 713 was held in the Senate Public Safety Committee.
      
   3. SB 417 (Stone), of 2015-2016 Legislative Session, would require a law enforcement official to detain an individual on the basis of a United States Immigration and Customs Enforcement hold for up to 48 hours after that individual becomes eligible for release from custody if that individual has been convicted of, or arrested for, specified crimes. The bill would require a local agency that violates these provisions to pay a fine of $100,000.
      
   4. AB 524 (Mullin), Chapter 572, Statutes of 2013, provides that a threat to report the immigration status or suspected immigration status of an individual or the individual's family may induce fear sufficient to constitute extortion.
      

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Civil Liberties Advocacy

California Immigrant Policy Center

California Public Defenders Association

Californians United for a Responsible Budget

Coalition of Humane Immigrant Rights

Drug Policy Alliance

Friends Committee on Legislation of California

Human Impact Partners

Mexican American Legal Defense and Education Fund

Pangea

Root and Rebound

Santa Clara Board of Supervisors

Western Center on Law and Poverty

Analysis Prepared by:

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 298

Author:(Gallagher) – As Introduced Ver:February 6, 2017

SUMMARY:

Requires law enforcement to cooperate with federal immigration by detaining an individual convicted of a felony for up to 48 hours on an immigration hold, as specified, after the person becomes eligible for release from custody. Specifically, this bill:

1. Repeals the Trust Act.
   
2. Requires local law enforcement to cooperate with federal immigration officials by detaining an individual convicted of a felony on the basis of an immigration hold after that individual becomes eligible for release from custody if the continued detention would not violate federal law.
   
3. Clarifies that the maximum detention period for an immigration hold is 48 hours, excluding Saturdays, Sundays, and holidays.

EXISTING FEDERAL LAW:

1. Provides that any authorized immigration officer may at any time issue Immigration Detainer-Notice of Action, to any other federal, state, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department of Homeland Security (DHS) seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the DHS, prior to release of the alien, in order for the DHS to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible. (8 CFR Section 287.7(a).)
   
2. States that upon a determination by the DHS to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the DHS. (8 CFR Section 287.7(d).)
   
3. Authorizes the Secretary of Homeland Security under the 287(g) program to enter into agreements that delegate immigration powers to local police. The negotiated agreements between ICE and the local police are documented in memorandum of agreements (MOAs). (8 U.S.C. Section 1357(g).)
   
4. States that a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. 8 USC 1373, subd. (a).)
   
5. Specifies that no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
   
   1. Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (8 USC 1373, subd. (b)(1).)
      
   2. Maintaining such information. (8 USC 1373, subd. (b)(2).)
      
   3. Exchanging such information with any other Federal, State, or local government entity. (8 USC 1373, subd. (b)(3).)
      
6. Provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. 14th Amend.)
   
7. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Const. 4th Amend.)

EXISTING LAW:

1. Defines "immigration hold" as "an immigration detainer issued by an authorized immigration officer, pursuant to specified regulations, that requests that the law enforcement official to maintain custody of the individual for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays, and to advise the authorized immigration officer prior to the release of that individual." (Gov. Code, § 7282, subd. (c).)
   
2. States that a law enforcement official shall have discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold after that individual becomes eligible for release from custody only if the continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy, and only under the following circumstances:
   
   1. The individual has been convicted of a serious or violent felony; (Gov. Code, § 7282.5, subd. (a), subd. (1).)
      
   2. The individual has been convicted of a felony punishable by imprisonment in the state prison; (Gov. Code, § 7282.5, subd. (a), subd. (2).)
      
   3. The individual has been convicted within the past five years of a misdemeanor for a crime that is punishable as either a misdemeanor or a felony, or has been convicted at any time of a specified felony; (Gov. Code, § 7282.5, subd. (a), subd. (3).)
      
   4. The individual is a current registrant on the California Sex and Arson Registry; (Gov. Code, § 7282.5, subd. (a), subd. (4).)
      
   5. The individual is arrested and taken before a magistrate on a charge involving a serious or violent felony, a felony punishable by imprisonment in state prison, or other specified felonies, and the magistrate makes a finding of probable cause as to that charge after a preliminary hearing; and (Gov. Code, § 7282.5, subd. (a), subd. (5).)
      
   6. The individual has been convicted of a federal crime that meets the definition of an aggravated felony as specified, or is identified by the United States Department of Homeland Security's Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant. (Gov. Code, § 7282.5, subd. (a), subd. (6).)
      
3. States that if none of the conditions listed above is satisfied, an individual shall not be detained on the basis of an immigration hold after the individual becomes eligible for release from custody. (Gov. Code, § 7282.5, subd. (b).)
   
4. Specifies that when there is reason to believe that any person arrested for a violation of specified drug related offenses, may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters. (Health and Saf. Code, § 11369.)
   
5. States the right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. (California Const., Art. I, § 13.)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Kate Steinle was murdered by a six time felon in San Francisco. He was protected by San Francisco’s sanctuary city program. Additionally, two sheriffs were similarly killed by an undocumented immigrant who was allowed back into the country. We need to make sure we are not protecting felons at the expense of innocent people.
   
   “The U.S. Department of Homeland Security implemented more refined Civil Immigration Enforcement Priorities in 2015, placing increased emphasis and focus on removal of undocumented, convicted felons and other public safety threats over non-criminals. 92% of ICE removals initiated in the interior of the country were of convicted criminals. Sanctuary city programs like San Francisco’s undermine the Department’s priorities, reducing effectiveness and protecting criminals. This bill aligns California law with federal immigration policy and ensures felons are not released back into our communities.”
   
2. Past Federal Immigration Programs: Secure Communities (a.k.a. S-Comm), launched in October 2008, was a Department of Homeland Security (DHS) program for detecting non-citizens who come into custody of law enforcement. Ordinarily, when someone is arrested and taken to a police station or jail, their fingerprints are scanned and sent to the FBI to check against federal criminal databases. Under the Secure Communities program, those prints were also checked against DHS immigration databases, and information about matching prints was sent to the local DHS Immigration and Customs Enforcement (ICE) field office and the originating jail or police station. ICE could initiate deportation proceedings as a result of one’s identification through Secure Communities. Secure Communities made use of immigration detainers (a.k.a. immigration holds). Immigration detainers are requests from federal immigration authorities to local law enforcement that they continue to hold an individual after they would otherwise be released from custody.
   
   California’s TRUST Act was enacted in 2013. (AB 4 (Ammiano), Chapter 570, Statutes of 2013.) The TRUST Act limits immigration “hold” or detainer requests, triggered by deportation programs like Secure Communities. The requests caused immigrants to be detained for extra time for deportation purposes.
   
   On November 20, 2014, the Obama administration stopped S-Comm and put in place the Priority Enforcement Program (PEP). PEP was similar to S-Comm, in that it continued to check the immigration status of all individuals by reviewing fingerprints obtained by local police at the point of booking. When an individual was arrested and booked by a law enforcement officer for a criminal violation, his or her fingerprints were submitted to the FBI for criminal history and warrant checks. This same biometric data was also sent to U.S. Immigration and Customs Enforcement (ICE). Under PEP, ICE could determine whether the individual was a priority for removal, consistent with the DHS enforcement priorities. Under PEP, ICE would seek the transfer of a removable individual when that individual had been convicted of an offense listed under the DHS civil immigration enforcement priorities, had intentionally participated in an organized criminal gang to further the illegal activity of the gang, or posed a danger to national security. (https://www.ice.gov/sites/default/files/documents/Fact%20sheet/2015/pep_brochure.pdf)
   
   Under PEP, ICE only sought the transfer of individuals in state and local custody under specific, limited circumstances. ICE would only issue a detainer where an individual fit within DHS’s narrower enforcement priorities and ICE had probable cause that the individual was removable. In many cases, rather than issue a detainer, ICE would instead request notification (at least 48 hours, if possible) of when an individual is to be released. ICE would use that time to determine whether there was probable cause to conclude that the individual was removable. (Id.)
   
   Although PEP relied more on requests to local law enforcement to notify ICE when an individual was released than hold requests, concerns were raised that the requests for notifications of release resulted in delays in release to allow ICE time to detain the individual.
   
   This bill would repeal the Trust Act and instead require that that law enforcement continue to keep individuals convicted of a felony in custody for up to 48 hours on immigration holds when they would otherwise be eligible for release.
   
3. Immigration Policies of the Trump Administration: The Trump administration is in the process of formulating the immigration policy of the executive branch. Based on executive orders and other statements from the president, it appears that immigration enforcement is likely to be aggressive.
   
   On January 25, 2016, President Trump signed a pair of executive orders on immigration. The orders crack down on people in the country without documentation and the cities that don’t readily hand them over for deportation. www.washingtonpost.com/news/post-nation/wp/2017/01/26/trump-wants-to-empower-local-police-to-enforce-immigration-law-raising-fears-of-racial-profiling/?utm_term=.f84cf1e505c6
   
   The executive orders issued on January 25, 2016 included the following action items, among others:
   
   1. Direct action for the hiring of an additional 5,000 border patrol agents.
      
   2. Direct action for the hiring of an additional 10,000 immigration officers.
      
   3. Instruct homeland security to broker agreements with governors and local officials so that state and local law enforcement authorities can enforce immigration law.
      
   4. Declare that “sanctuary jurisdictions” be prohibited from receiving federal grants.
      
   5. Direct appropriate action to terminate the Priority Enforcement Program and to reinstitute the immigration program known as "Secure Communities."
      
   6. Direct construction of a southern border wall.
      
4. Potential Constitutional Violations and Civil Liability for Maintaining Custody of an Individual Solely on the Basis of an Immigration Hold: Law enforcement agencies risk civil liability if they continue to hold an individual in custody on an immigration hold when there is no other basis to detention. A detention based solely on an immigration hold may violate the State and Federal Constitutions prohibition against unreasonable seizure. A violation of an individual’s constitutional rights can expose a law enforcement agency to civil liability.
   
   The intersection of civil liability for law enforcement and immigration detainer requests was addressed by the United States District Court for the District of Oregon. In the case of Miranda-Olivares v. Clackamas County, 2014 U.S. Dist. LEXIS 50340, federal authorities issued an immigration detainer request when Ms. Miranda-Olivares was taken into to custody by a local law enforcement agency on a state criminal charge. On the basis of that detainer request, the law enforcement agency did not allow Ms. Miranda-Olivares to post bail to be released from custody on her pending state charge. Ms. Miranda-Olivares brought a civil action alleging that the law enforcement agency had unlawfully detained her on the basis of the immigration detainer request.
   
   The District Court in Miranda-Olivares noted that unlike criminal detainers, which are supported by a warrant and require probable cause, there is no requirement for a warrant and no established standard of proof, such as reasonable suspicion or probable cause, for issuing an ICE detainer request. Because of that distinction, the court concluded that federal law does not require law enforcement agencies to detain suspected aliens upon receipt of an immigration detainer request and that the jail was at liberty to refuse ICE's request to detain Miranda-Olivares if that detention violated her constitutional rights. (Miranda-Olivares v. Clackamas County, 2014 U.S. Dist. LEXIS 50340, p. 24.)
   
   The District Court observed that the judge had ordered the pre-trial release of Miranda-Olivares at the arraignment upon posting of bail. “It is undisputed that she could and would have posted bail but for the County's custom and practice of continued detention upon receipt of the ICE detainer. Both at the arraignment (had bail been posted) and upon resolution of her state charges, the County no longer had probable cause to justify her detention.” (Id. at 30.)
   
   The District Court found that “. . . that the County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention. That custom and practice violated Miranda-Olivares's Fourth Amendment rights by detaining her without probable cause both after she was eligible for pre-trial release upon posting bail and after her release from state charges.” (Id. at 32-33.) Based on its findings, the court determined that Ms. Miranda-Olivares was entitled to money damages on the basis of the violation of her Fourth Amendment rights.
   
   California law enforcement risks similar civil liability if they hold individuals solely on the basis of a federal immigration detainer request.
   
5. California Attorney General’s Opinion On Immigration Detainer Requests: The California Attorney General issued an opinion on June 25, 2014 which reiterated that immigration detainer requests are voluntary and warned local law enforcement about the potential for civil liability if they continued to hold people on immigration detainer requests when they were otherwise eligible to be released from custody.
   
   The opinion stated that “. . . , satisfaction of the TRUST Act conditions for compliance with ICE immigration detainer requests does not mean that compliance is mandatory. As we explained in Bulletin No. 2012-DLE-01, law enforcement agencies in California are not required to fulfill an ICE immigration detainer. Recent court rulings and correspondence from ICE’s Acting Director have further confirmed that ICE immigration detainers are not mandatory.” (Information Bulletin, California Department of Justice, June 25, 2014, p. 2.)
   
   Attorney General’s opinion advises that, “ . . . , in circumstances where compliance with ICE immigration detainers is permitted, an agency may use its discretion whether to devote resources to holding a suspected undocumented immigrant on behalf of the federal government.” (Id. at p. 2-3.)
   
   The attorney general warned that even compliance with the TRUST Act does not necessarily immunize a local law enforcement agency from civil liability related to immigration detainer requests and referenced the Miranda-Olivares.
   

The Miranda-Olivares court held, consistent with Information Bulletin No. 2012-DLE-01, that local authorities can choose to comply with a request from ICE, but are not required to do so by law. The court also held that because compliance with an ICE detainer is voluntary rather than mandatory, a local agency could violate the Fourth Amendment by detaining an individual solely based on the request of ICE, without some other probable cause for arrest. No state or federal court with California jurisdiction has yet ruled on whether detentions authorized under the TRUST Act, but solely based on the request of ICE, violate the Constitution. If a California court adopts the reasoning of the district court in Miranda-Olivares, local jurisdictions may be held liable for damages for such a detention. Further, compliance with the TRUST Act may not immunize local jurisdictions from liability. As described above, the TRUST Act permits a law enforcement official to detain an individual on the basis of an immigration hold after that individual becomes otherwise eligible for release from custody only if the continued detention would “not violate any federal law . . . .” (Gov. Code, § 7282.5, subd. (a).) If continued detention is found to violate the Fourth Amendment, it would therefore likely be no defense for the local jurisdiction to argue that it was acting under the authority of the TRUST Act. (Id. at p. 3.)

This bill would mandate that law enforcement honor immigration detainer requests under specified circumstances. That mandate would force local law enforcement to hold individuals in custody in situations where there is not a warrant for the individual’s arrest or probable cause to believe that the individual has committed a crime. Mandating continued detention under such circumstances likely violates the Federal and State Constitution prohibitions against unreasonable seizure. Such actions would violate civil liberties and increase local law enforcement agencies’ exposure to civil liability.

1. ICE Involvement Can Impede Cooperation Between Local Law Enforcement and the Community: A study by the University of Illinois – Chicago surveyed Latino immigrants in Cook (Chicago), Harris (Houston), Los Angeles, and Maricopa (Phoenix) counties on their perception of local law enforcement when there’s involvement in immigration enforcement found the following:
   1. 44 percent of Latinos surveyed reported they are less likely to contact police officers if they have been the victim of a crime because they fear that police officers will use this interaction as an opportunity to inquire into their immigration status or that of people they know;
      
   2. 45 percent of Latinos stated that they are less likely to voluntarily offer information about crimes, and 45 percent are less likely to report a crime because they are afraid the police will ask them or people they know about their immigration status;
      
   3. 70 percent of undocumented immigrants reported they are less likely to contact law enforcement authorities if they were victims of a crime;
      
   4. Fear of police contact is not confined to immigrants. For example, 28 percent of US-born Latinos said they are less likely to contact police officers if they have been the victim of a crime because they fear that police officers will use this interaction as an opportunity to inquire into their immigration status or that of people they know; and
      
   5. 38 percent of Latinos reported they feel like they are under more suspicion now that local law enforcement authorities have become involved in immigration enforcement. This figure includes 26 percent of US-born respondents, 40 percent of foreign-born respondents, and 58 percent of undocumented immigrant respondents. (Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, University of Illinois at Chicago, Nik, Theodore et al., (May 2013), available at http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF)
      
2. Argument in Opposition: According to the American Civil Liberties Union of California, “AB 298 is contrary to existing law that sets reasonable limits on local participation with these deeply flawed detainer programs. California’s TRUST Act, AB 4 (Ammiano) (2013) ensures that people with low-level, non-violent misdemeanor offenses are not unnecessarily held for deportation and provides local discretion to not use scarce taxpayer dollars to detain immigrants beyond their scheduled release time. The TRUST Act was enacted in response to the immigration hold and detainer requests triggered by the federal government’s controversial ‘Secure Communities’ or ‘S-Comm’ deportation program. In 2014, a federal court found S-Comm unconstitutional and in November 2014, the Obama Administration acknowledged it failures and dropped the program. In January 2017, the Trump Administration reversed course and issued an executive order reinstituting S-Comm and significantly expanding enforcement against individuals a with criminal convictions and criminal charges.
   
   “California has already learned the painful lessons of how detainer programs undermine public safety by eroding community trust in law enforcement permanent rip individuals with low-level offense from their families, and siphon away local financial resources.”
   
3. Related Legislation:
   
   1. AB 1252 (Allen), would repeal the TRUST Act and prohibit state grants to county and local “sanctuary jurisdictions.” AB 1252 is pending hearing in this committee.
      
   2. AB 3 (Bonta), would require the California Department of Social Services to issue grants to provide legal training and assistance to county public defenders on issues relating to the immigration consequences of criminal convictions. AB 3 is awaiting hearing in the Assembly Appropriations Committee.
      
   3. SB 6 (Hueso), would require the Department of Social Services to contract with specified organizations to provide legal services to individuals facing deportation proceedings who are not otherwise entitled to legal representation. SB 6 is on Senate Third Reading.
      
   4. SB 54 (De León), would prohibit state and local law enforcement agencies and school police and security departments from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. SB 54 is on Senate Third Reading.
      
   5. SB 31 (Lara), would prohibit a state or local agency or a public employee from providing or disclosing to the federal government personally identifiable information regarding a person’s religious beliefs, practices, or affiliation, as specified, when the information is sought for compiling a database of individuals based on religious belief, practice or affiliation, national origin, or ethnicity for law enforcement or immigration purposes. SB 31 is awaiting hearing in the Senate Appropriations Committee.
      
4. Prior Legislation:
   
   1. AB 4 (Ammiano), Chapter 570, Statutes of 2013, prohibits a law enforcement official, as defined, from detaining an individual on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from custody, unless, at the time that the individual becomes eligible for release from custody, certain conditions are met, including, among other things, that the individual has been convicted of specified crimes.
      
   2. SB 713 (Nielsen), of 2015-2016 Legislative Session, would have expanded the list of prior felony convictions under the TRUST Act to include the conviction of a felony which formed the basis upon which the individual was previously deported, thereby allowing a law enforcement official, to detain an individual with that felony conviction on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from custody. SB 713 was held in the Senate Public Safety Committee.
      
   3. SB 417 (Stone), of 2015-2016 Legislative Session, would require a law enforcement official to detain an individual on the basis of a United States Immigration and Customs Enforcement hold for up to 48 hours after that individual becomes eligible for release from custody if that individual has been convicted of, or arrested for, specified crimes. The bill would require a local agency that violates these provisions to pay a fine of $100,000.
      
   4. AB 524 (Mullin), Chapter 572, Statutes of 2013, provides that a threat to report the immigration status or suspected immigration status of an individual or the individual's family may induce fear sufficient to constitute extortion.
      

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Civil Liberties Advocacy

California Immigrant Policy Center

California Public Defenders Association

Coalition of Humane Immigrant Rights

Friends Committee on Legislation of California

Human Impact Partners

Mexican American Legal Defense and Education Fund

Pangea

Root and Rebound

Santa Clara Board of Supervisors

Western Center on Law and Poverty

Analysis Prepared by:

David Billingsley / PUB. S. /