BILL NUMBER: AB 1081 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 15, 2012
AMENDED IN SENATE MAY 14, 2012
AMENDED IN SENATE AUGUST 15, 2011
AMENDED IN SENATE JUNE 8, 2011
AMENDED IN ASSEMBLY MAY 16, 2011
AMENDED IN ASSEMBLY APRIL 15, 2011
INTRODUCED BY Assembly Member Ammiano
( Principal coauthor: Senator
De León )
(Coauthors: Assembly Members Alejo, Bonilla, Cedillo, Eng,
Monning, V. Manuel Pérez, Skinner, and Yamada)
(Coauthors: Senators Calderon, Hancock, and Yee)
FEBRUARY 18, 2011
An act to add Chapter 17.1 (commencing with Section 7282) to
Division 7 of Title 1 of the Government Code, relating to state
government.
LEGISLATIVE COUNSEL'S DIGEST
AB 1081, as amended, Ammiano. State government: federal
immigration policy enforcement.
Existing federal law authorizes any authorized immigration officer
to issue an immigration detainer that serves to advise another law
enforcement agency that the federal department seeks custody of an
alien presently in the custody of that agency, for the purpose of
arresting and removing the alien. Existing federal law provides that
the detainer is a request that the agency advise the department,
prior to release of the alien, in order for the department to arrange
to assume custody, in situations when gaining immediate physical
custody is either impracticable or impossible.
This bill would prohibit 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 criminal custody, unless
the local agency adopts a plan that meets certain requirements prior
to or after compliance with the immigration hold, and , at
the time that the individual becomes eligible for release from
criminal custody, certain conditions are met.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The United States Immigration and Customs Enforcement's (ICE)
Secure Communities program shifts the burden and
responsibility of federal civil immigration enforcement
onto local law enforcement while undercutting community
policing strategies . To operate the Secure Communities
program, ICE relies on immigration detainers. These are
voluntary requests , known as ICE holds or detainers,
to local law enforcement to hold individuals in local
jails for additional time beyond when they would be eligible
for release in a criminal matter .
(b) Immigration detainers are a drain on local resources
because state State and local law enforcement
agencies are not reimbursed by the federal government for
the full cost of responding to a detainer, which can include, but is
not limited to, extended detention time and the administrative costs
of tracking and responding to detainers. ICE may not mandate
the expenditure of state and local resources or the use of state and
local agencies to implement federal programs, such as the Secure
Communities program.
(c) Immigration detainers are not Unlike
criminal detainers . Criminal detainers are
, which are supported by a warrant and require
probable cause . In contrast , there is no
requirement for a warrant and no established standard of proof ,
such as reasonable suspicion or probable cause ,
for issuing an ICE detainer request. Immigration detainers have
erroneously been placed on United States citizens as well as
immigrants who are not deportable.
(d) The Secure Communities program and immigration detainers harm
community policing efforts because immigrant residents who are
victims or witnesses to crime, including domestic violence, are less
likely to report crime or cooperate with law enforcement when any
contact with law enforcement could result in deportation. The program
can result in a person being held and transferred into immigration
detention without regard to whether the arrest is the result of a
mistake, or merely a routine practice of questioning individuals
involved in a dispute without pressing charges. Victims or witnesses
to crimes may have recourse to lawful status (such as U-visas or
T-visas) that detention resulting from the Secure Communities program
obstructs.
(e) Illinois, Massachusetts, New York, Washington, and Washington,
D.C. have all refused to enter into, suspended, or terminated a
memorandum of agreement with the United States Department of Homeland
Security regarding the Secure Communities program citing concerns
about harm caused to community policing, public safety, and
protections against racial profiling.
(e) It is the intent of the Legislature that this act shall not be
construed as providing, expanding, or ratifying the legal authority
for any state or local law enforcement agency to detain an individual
on an immigration hold.
SEC. 2. Chapter 17.1 (commencing with Section 7282) is added to
Division 7 of Title 1 of the Government Code, to read:
CHAPTER 17.1. STANDARDS FOR RESPONDING TO UNITED STATES
IMMIGRATION AND CUSTOMS ENFORCEMENT HOLDS
7282. For purposes of this chapter, the following terms have the
following meanings:
(a) "Conviction" shall have the same meaning as subdivision (d) of
Section 667 of the Penal Code.
(a)
(b) "Eligible for release from criminal custody" means
that the individual may be released from criminal custody because one
of the following conditions has occurred:
(1) All criminal charges against the individual have been dropped
or dismissed.
(2) The individual has been acquitted of all criminal charges
filed against him or her.
(3) The individual has served all the time required for his or her
sentence.
(4) The individual has posted a bond.
(5) The individual is otherwise eligible for release under state
or local law, or local policy.
(b)
(c) "Immigration hold" means an immigration detainer
issued by an authorized immigration officer, pursuant to Section
287.7 of Title 8 of the Code of Federal Regulations, that requests
that the law enforcement official 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.
(c)
(d) "Law enforcement official" means any local agency or
officer of a local agency authorized to enforce criminal statutes,
regulations, or local ordinances or to operate jails or to maintain
custody of individuals in jails, and any person or local agency
or state governmental entity authorized to operate
juvenile detention facilities or to maintain custody of individuals
in juvenile detention facilities.
(d)
(e) "Local agency" means any city, county, city and
county, special district, or other political subdivision of the
state.
(e)
(f) "Serious felony" means any of the offenses listed
in subdivision (c) of Section 1192.7 of the Penal Code and any
offense committed in another state which, if committed in California,
would be punishable as a serious felony as defined by subdivision
(c) of Section 1192.7 of the Penal Code.
(f)
(g) "Violent felony" means any of the offenses listed
in subdivision (c) of Section 667.5 of the Penal Code and any offense
committed in another state which, if committed in California, would
be punishable as a violent felony as defined by subdivision (c) of
Section 667.5 of the Penal Code.
7282.5. An individual shall not be detained by a
(a) A law enforcement
official has the discretion to detain an individual on the
basis of an immigration hold after that individual becomes eligible
for release from criminal custody, unless, at the time the
individual becomes eligible for release from criminal custody, both
if both of the following conditions are
satisfied:
(a)
(1) The individual has been convicted of a serious or
violent felony, felony according to a
criminal background check or documentation provided to the law
enforcement official by United States Immigration and Customs
Enforcement or is currently in custody for a charge
of a serious or violent felony by a district attorney .
(b)
(2) 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.
(b) If either of the conditions set forth in subdivision (a) is
not satisfied, an individual shall not be detained on the basis of an
immigration hold after that individual becomes eligible for release
from criminal custody.
7282.10. (a) The legislative body of the local agency of the
jurisdiction that the individual is being detained in shall, prior to
or after complying with an immigration hold, adopt a plan that
monitors and guards against all of the following:
(1) A United States citizen being detained pursuant to an
immigration hold.
(2) Racial profiling.
(3) Victims and witnesses to crime being discouraged from
reporting crimes.
(b) This plan is a public record for purposes of the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1).
(c) A local agency is not required to adopt a plan pursuant to
this section prior to complying with an immigration hold pursuant to
Section 7282.5.
SEC. 3. The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.