Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1113

Author:(Chiu) – As Amended Ver:March 18, 2019

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

SUMMARY:

This bill creates an agency in state government called the Office of Immigrant and Refugee Affairs (OIRA). Specifically, this bill:

1. Provides the OIRA is headed by a secretary, who is appointed by the governor, subject to Senate confirmation, and that the secretary serves at the pleasure of the governor.
   
2. Provides the secretary may appoint two chief deputy secretaries, subject to Senate confirmation, and that these chief deputy secretaries hold office at the pleasure of the secretary.
3. Transfers to the OIRA any property of any office, agency or department that relates to functions transferred to the OIRA by the bill.
   
4. Establishes the Immigrant and Refugee Integration Fund in the State Treasury, the moneys of which are available to the secretary, upon appropriation by the Legislature, for the office to expend to defray its expenses.
5. Requires the OIRA, among other things, to assist other state agencies in evaluating their programs for accessibility and effectiveness in providing services to immigrants and refugees and to develop and implement grant programs that directly support capacity building and training among other state agencies and state and local communities through technical assistance, training and organization.

FISCAL EFFECT:

Costs (GF), potentially between three and eight million dollars annually, for staff and infrastructure and to the extent the OIRA offers immigrant-related services and engages with other state and local agencies to coordinate services. The OIRA appears similar in scope to the Workforce Development Agency. The 2017-2018 GF budget allocation for for the WDA was approximately $4 million dollars.

Additionally, this bill provides that, where appropriate, funds allocated for other immigrant-related services will be transferred to OIRA. This may result in additional GF costs to backfill amounts re-directed to OIRA given that this bill does not eliminate immigration-related duties performed by the Department of Social Services. The 2019-2020 fiscal year budget allocates $75 million dollars from the GF to other state agencies for immigration-related services.

COMMENTS:

1. Purpose. According to the author:

With an agency dedicated to Immigrant and Refugee Affairs, in addition to an added secretary and two deputy positions, California will also be able to coordinate with local immigrant affairs offices to streamline services and maximize their impact. Additionally, these positions will help to develop and execute grant programs that directly support capacity building and training among state agencies and state and local communities through technical assistance, training, organizing, and other programs.

1. Background. SB 84 (Committee on Budget), Chapter 25, Statutes of 2015, implemented the Statewide Director of Immigration Integration to serve as lead on planning and coordination of immigration and policies in California. The Department of Social Services operates the Immigration Services Unit and the Refugee Programs Bureau aimed at providing legal services, outreach and other integration efforts.
2. Prior Legislation.
   1. SB 84 (Committee on Budget), Chapter 25, Statutes of 2015, created the Statewide Director of Immigrant Integration.
   2. SB 10 (Lara), Chapter 22, Statutes of 2016, as introduced, created the California Office of New Americans. SB 10 was substantially amended to authorize the state to apply for a waiver from federal authorities to permit undocumented individuals to obtain health coverage through the California Health Benefit Exchange.
   3. SB 1 (Cedillo), of the 2006-2007 Legislative Session, as introduced, would have created the Office of Immigrant Affairs within the Department of Community Services & Development. The bill was later amended to address financial aid for higher education and was vetoed.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: April 9, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1113

Author:(Chiu) – As Amended Ver:March 18, 2019

SUBJECT: OFFICE OF IMMIGRANT AND REFUGEE AFFAIRS

KEY ISSUE: WOULD THE POWERS EXERCISED BY A CABINET-LEVEL STATE AGENCY TASKED WITH COORDINATING AND IMPROVING EXISTING AND FUTURE PROGRAMS TO ASSIST IMMIGRANTS AND REFUGEES BE PREEMPTED BY THE FEDERAL GOVERNMENT’S PLENARY POWERS IN THE AREAS OF IMMIGRATION AND FOREIGN RELATIONS?

SYNOPSIS

This bill, sponsored by the Coalition for Humane Immigration Rights, would establish a new Cabinet-level agency in state government entitled the Office of Immigrant and Refugee Affairs. The agency’s responsibilities would include coordinating immigrant and refugee services among state agencies; assisting state agencies in evaluating the effectiveness and reach of their services; making policy recommendations to the Governor and Legislature; and coordinating with local immigrant affairs offices to maximize the impact of the services they provide.

In our system of federalism, state governments are generally free to exercise their powers in support of the health, safety, and welfare of their residents, unless the federal government has reserved such an area to itself, has regulated that area so pervasively that there is no room for state action in the area, has rendered it impossible to comply with both state and federal mandates in the area, or where state law would create an obstacle to the achievement of the federal government’s objectives. Here, the powers to be exercised by the proposed agency are meant to enhance the welfare of immigrants and refugees in California and thus fall squarely within the scope of California’s authority. As a result, there appears to be no basis for arguing that the proposed agency’s powers are preempted by the federal government’s supreme authority in the areas of immigration and foreign relations. This well-intentioned bill is supported by numerous legal services and immigrant rights advocacy organizations and has no opposition on file.

SUMMARY: Establishes the Office of Immigrant and Refugee Affairs as a new Cabinet-level agency in state government. Specifically, this bill:

1. Creates an agency in state government, entitled the Office of Immigrant and Refugee Affairs (Office).
2. Provides that the Office is headed by a Secretary, who is appointed by the Governor, subject to Senate confirmation, and that the Secretary serves at the pleasure of the Governor.
3. Provides that the Secretary may appoint two Chief Deputy Secretaries, subject to Senate confirmation, and that these Chief Deputy Secretaries hold office at the pleasure of the Secretary.
4. Transfers to the Office any property of any office, agency, or department that relates to functions transferred to the Office by the bill.
5. Delegates to the Department of General Services the responsibility of determining whether a transfer of property to the Office should be made if there is doubt over the question.
6. Transfers to the Office funds available for use in connection with any function, or the administration of any law, transferred to the Office.
7. Delegates to the Department of Finance the responsibility of determining whether a transfer of funds to the Office should be made if there is doubt over the question.
8. Establishes the Immigrant and Refugee Integration Fund in the State Treasury, the moneys in which are available to the Secretary, upon appropriation by the Legislature, for the Office to expend to defray its expenses.
9. Sets forth the following duties for the Secretary:
   1. Developing a mission statement, strategic plan, and matrix of success for the Office.
   2. Establishing a permanent structure within the State to serve immigrants and refugees.
   3. Assisting other state agencies in evaluating their programs for accessibility and effectiveness in providing services to immigrants and refugees.
   4. Coordinating integration efforts among state agencies and recommending policy and budget mechanisms for meeting immigrant and refugee integration goals.
   5. Engaging stakeholders inside and outside of government to identify key integration opportunities and challenges, and to communicate the critical importance of immigrant and refugee integration for the success of immigrants, refugees, their children, the communities in which they settle, and of the nation as a whole.
   6. Developing and executing grant programs that directly support capacity building and training among state agencies and state and local communities through technical assistance, training, organizing, and other programs.
   7. Identifying effective practices and successful modes of delivering services to immigrant and refugee communities.
   8. Evaluating the need for improvements in the implementation and coordination of public policies relating to immigrant and refugee communities.
   9. Making policy recommendations to the Governor and Legislature, with express authorization provided to the Office to (1) inform the Legislature of its position on any legislative proposal pending before the Legislature and to urge the introduction of legislative proposals, and (2) state its position and viewpoint on issues developed in the performance of its specified duties and responsibilities.
   10. Coordinating with local immigrant affairs offices to streamline services and maximize their impact.
   11. Creating a clearinghouse of information and referral systems for services available to immigrants.
   12. Monitoring the implementation of passed legislation as it relates to immigrants and refugees.
   13. Engaging the federal government and federal agencies, when appropriate, to maximize effectiveness of services provided to immigrants and refugees.
10. Requires the Secretary to report to the Legislature on a biannual basis regarding successes and challenges in meeting immigrant and refugee integration goals.
11. Amends existing law establishing a statewide Director of Immigrant Integration to add refugee services to the Director’s portfolio.
12. Changes the date on which the Director must provide a comprehensive report regarding (1) programs and services that serve immigrants, and (2) a plan for better implementation and coordination of immigrant and refugee assistance policies and programs, from January 10, 2017 to January 1, 2021.

EXISTING LAW:

1. Establishes the position of Statewide Director of Immigrant Integration, appointed by the Governor, to serve as the statewide lead for the planning and coordination of immigrant services and policies in California. (Government Code Section 65050.)
2. Requires the Director to develop a comprehensive statewide report on programs and services that serve immigrants, develop an online clearinghouse of immigrant services, resources, and programs, and monitor the implementation of statewide laws and regulations that service immigrants. (Ibid.)

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

COMMENTS: This bill, sponsored by the Coalition for Humane Immigration Rights, would establish a new Cabinet-level agency in state government entitled the Office of Immigrant and Refugee Affairs. The agency’s responsibilities would include coordinating immigrant and refugee services among state agencies; assisting state agencies in evaluating the effectiveness and reach of their services; making policy recommendations to the Governor and Legislature; and coordinating with local immigrant affairs offices to maximize the impact of the services they provide.

Background and justification for this bill. California state government agencies currently administer a number of programs directed at securing the welfare of immigrant and refugees in the State. AB 1113 proposes to create the Office of Immigrant and Refugee Affairs, a new Cabinet-level agency that would coordinate these disparate programs with an eye to enhancing their overall effectiveness. The author writes:

California is home to the largest population of immigrants in the nation. To that end, in 2015, Governor Jerry Brown created a position of a “Statewide Director of Immigrant Integration,” which has been critical to assess the challenges of immigrants and refugees in our state. However, one position within the Governor’s office is not enough to address the needs of the immigrants in our state. […T]here is not yet a comprehensive approach to integrate the policies and programs we’ve passed to serve this population.

While there are programs that specifically aim to help immigrant and refugee communities, there is not one central agency that coordinates/communicates between other state agencies. This makes monitoring the efficacy of policies aiming to assist refugee and immigrant communities more difficult than necessary.

With an agency dedicated to Immigrant and Refugee Affairs, in addition to an added secretary and two deputy positions, California will also be able to coordinate with local immigrant affairs offices to streamline services and maximize their impact. Additionally, these positions will help to develop and execute grant programs that directly support capacity building and training among state agencies and state and local communities through technical assistance, training, organizing, and other programs.

The only aspect of this bill that lies within the jurisdiction of this Committee is the relation between state and federal immigration law, and therefore, that issue is the only aspect of the bill analyzed herein.

As contemplated by AB 1113, the Office of Immigrant and Refugee Affairs would exercise powers within the State’s traditional police powers. California state agencies provide numerous services, both direct and indirect, for immigrants and refugees. To take only a few examples:

• The Immigration Services Unit of the California Department of Social Services (CDSS) “ensures the effective development and implementation of programs and funding initiatives necessary to support legal services, outreach, community education, and other immigrant integration efforts…includ[ing] services to increase access to Deferred Action for Childhood Arrivals (DACA), Other Immigration Remedies (OIR), naturalization, removal defense, and immigration protection for Unaccompanied Undocumented Minors (UUMs).” (See https://www.cdss.ca.gov/inforesources/Immigration)
• The Refugee Programs Bureau, also part of CDSS, “oversees culturally-sensitive and linguistically-appropriate services that helps [refugees] attain the skills needed to achieve self-sufficiency and a successful integration… by partnering with counties, resettlement agencies, school districts, and community based organizations.” (See http://www.cdss.ca.gov/inforesources/Refugees)
• The “California Dream Act” enables undocumented immigrants who are eligible for in-state tuition to obtain financial aid to attend the California Community Colleges, the California State University, and the University of California. (Education Code Sections 66021.6, 66021.7, 69508.5, 76300.5.)
• The Secretary of State requires immigration consultants to register with it; these consultants are regulated by the Department of Consumer Affairs. (Business and Professions Code Sections 22440 et seq.)

All of these services fall squarely within California’s police powers. “[T]he structure and limitations of federalism . . . allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” (Gonzales v. Oregon (2006) 546 U.S. 243, 270 (internal quotation marks omitted).) “[Police] regulations may validly be imposed if they constitute a reasonable exertion of governmental authority for the public good.” (In re Fuller (1940) 15 Cal. 2d 425, 428.) The successful integration of immigrants and refugees into California communities, the provision of higher education to immigrant populations, and the supervision of professionals who provide immigration-related services are all legitimate ends to which the State’s police powers may be exercised. As AB 1113 proposes to centralize the coordination and management of such programs in order to increase the State’s effectiveness in providing services to immigrants and refugees, the bill would appear to also be a valid exercise of the state’s police power.

The powers delegated to the Office of Immigrant and Refugee Affairs appear not to be preempted by federal law. There is nevertheless the issue of whether California’s power to create an Office of Immigrant and Refugee Affairs is preempted by the federal government’s power over immigration and foreign policy. The federal government has power under the United States Constitution to “establish a Uniform Rule of Naturalization[.]” (United States Constitution, Article I, Section 8, Clause 4.) The federal government also has inherent authority as a sovereign to conduct relations with foreign nations. (United States v. Curtiss-Wright Export Corp. (1936) 299 U.S. 304, 318 [“The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.”].)

Courts have generally recognized three forms of federal preemption of state law: express preemption, field preemption, and conflict preemption. Express preemption occurs when a federal statute contains a provision that explicitly “withdraw[s] specified powers from the States.” (Arizona v. United States (2012) 567 U.S. 387, 399.) Field preemption occurs when the “intent to displace state law altogether can be inferred from a framework of [federal] regulation so pervasive […] that Congress left no room for the States to supplement it or where there is a federal interest […] so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” (Ibid., internal quotations omitted.) Conflict preemption generally occurs in situations where it is physically impossible to comply with both federal and state regulations, or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Ibid.)

AB 1113 does not appear to run afoul of any of these three forms of preemption. There is no express federal preemption of the types of immigration and refugee services that the Office of Immigrant and Refugee Affairs would coordinate. While the Supreme Court has long held that immigration policy is the exclusive domain of the federal government (Chy Lung v. Freeman (1876) 92 U.S. 275), AB 1113 does not contemplate regulating immigration or setting up any legal framework in which federal immigration law cannot be complied with. As a result, neither field preemption, nor conflict preemption appear to be implicated. The bill also appears not to infringe on the United States’ power to conduct relations with other nations.

Moreover, the Supreme Court has recognized that “[t]he pervasiveness of federal regulation does not diminish the importance of immigration policy to the States.” (Arizona, supra, 567 U.S. at 397.) It is critically important for California to successfully integrate immigrants and refugees, and to give these populations the tools they need to enhance their well-being. The benefits of California doing so inure not only to these groups, but to the state as a whole. (See, e.g., Assembly Joint Resolution No. 1 (Daly, Chap. 8, Stats. 2019.) [“Vietnamese Americans have enhanced California’s culture through the establishment of vibrant Little Saigon communities throughout the state that … allow all Californians to be immersed in the richness of Vietnamese culture[.]”].)

The Supreme Court has made it clear that “[f]ederalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.” (Arizona, supra, 567 U.S. at 398.) Based on the legal principles outlined above, and the fact that none of the services that would be coordinated by the contemplated Office have been found to be preempted, it appears sufficiently clear that the powers that the Office would exercise are squarely within the California’s sovereignty and do not run afoul of the federal government’s plenary power over immigration and foreign affairs.

To sum, enactment of the Office of Immigrant and Refugee Affairs under AB 1113 does not present federal preemption concerns.

Other Related Legislation: SB 84 (Budget and Fiscal Review, Chap. 25, Stats. 2015) established a Statewide Director of Immigrant Integration to serve as the statewide lead for the planning and coordination of immigrant services and policies in California.

SB 10 (Lara, 2015), as introduced, would have established the California Office of New Americans to create a centralized office to lead and assess challenges and opportunities to coordinate the implementation of immigrant integration legislation. The bill was later amended to authorize the State to apply for a waiver from federal authorities in order to permit individuals previously ineligible because of their immigration status to obtain health coverage through the California Health Benefit Exchange.

SB 1 (Cedillo, 2007), as introduced, would have created the Office of Immigrant Affairs within the Department of Community Services & Development in order to ensure the integration and civic participation of new citizens in the State. The bill was later amended to address financial aid for higher education.

REGISTERED SUPPORT / OPPOSITION:

Support

Coalition for Humane Immigrant Rights (CHIRLA) (sponsor)

Central American Resource Center of California (CARECEN)

Good Samaritan Family Resource Center

National Partnership for New Americans

Instituto Familiar De La Raza

Opposition

None on file

Analysis Prepared by: Jith Meganathan / JUD. / (916) 319-2334