BILL NUMBER: AB 4 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 14, 2013
INTRODUCED BY Assembly Member Ammiano
(Principal coauthors: Assembly Members Alejo and V. Manuel Pérez)
(Principal coauthor: Senator De León)
(Coauthor: Assembly Member Skinner)
DECEMBER 3, 2012
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 4, 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, at the
time that the individual becomes eligible for release from criminal
custody, certain conditions are met. This bill would prohibit an
immigration detainer or suspected or actual immigration status from
being the basis for denial of certain pretrial or
postconviction services and programs, rights, opportunities, or
benefits to individuals in county custody. The bill also would
prohibit a law enforcement official from arresting, detaining, or
continuing to detain a person based on an administrative warrant
entered into the Federal Bureau of Investigation's National Crime
Information Center database or a successor or similar database, when
the administrative warrant is based solely on a violation of civil
immigration law.
Vote: majority. Appropriation: no. Fiscal committee: no.
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 of federal civil
immigration enforcement onto local law enforcement. To operate the
Secure Communities program, ICE relies on voluntary requests, known
as ICE holds or detainers, to local law enforcement to hold
individuals in local jails for additional time beyond when they would
be eligible for release in a criminal matter.
(b) 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.
(c) 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. Immigration
detainers have erroneously been placed on United States
citizens 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 of or witnesses to crime, including domestic violence, are
less likely to report crime or cooperate with law enforcement when
any contact with law enforcement could result in deportation. The
program can result in a person being held and transferred into
immigration detention without regard to whether the arrest is the
result of a mistake, or merely a routine practice of questioning
individuals involved in a dispute without pressing charges. Victims
or witnesses to crimes may otherwise have recourse to lawful status
(such as U-visas or T-visas) that detention resulting from the Secure
Communities program obstructs.
(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.
(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.
(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 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.
(d) "Administrative warrant" means an immigration warrant issued
by ICE, or a successor or similar federal agency charged with
enforcement of civil immigration laws, used as a noncriminal, civil
warrant for immigration purposes.
(d)
(e) "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
authorized to operate juvenile detention facilities or to maintain
custody of individuals in juvenile detention facilities.
(e)
(f) "Local agency" means any city, county, city and
county, special district, or other political subdivision of the
state.
(f)
(g) "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.
(g)
(h) "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. (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, only
if both of the following conditions are satisfied:
(1) The individual has been convicted of a serious or violent
felony that, if committed in California on January 1, 2013,
would result in a sentence to state prison, according to a
criminal background check or documentation provided to the law
enforcement official by United States Immigration and Customs
Enforcement.
(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.
(c) An immigration detainer or suspected or actual immigration
status shall not be a basis to deny any pretrial or postconviction
services and programs, rights, opportunities, or benefits to
individuals in county custody, including alternatives to
incarceration, rehabilitation, drug treatment, educational and
vocational programs, early release, probation, bail, and release on
their own recognizance.
(d) A law enforcement official shall not arrest, detain, or
continue to detain a person based on an administrative warrant
entered into the Federal Bureau of Investigation's National Crime
Information Center database or a successor or similar database
maintained by the United States, when the administrative warrant is
based solely on a violation of civil immigration law.
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.