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Item # 21
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 4, 2021
TOPIC: Assembly Bill 937 (the “VISION Act”)
AGENDA TITLE:
Resolution Declaring the City of Santa Ana's Support for Assembly Bill 937 (the “VISION
Act”)
RECOMMENDED ACTION
Adopt a resolution supporting Assembly Bill 937 (the “VISION Act”).
DISCUSSION
At the request of Mayor Sarmiento, the attached resolution (Exhibit 1) is presented for
consideration by the City Council.
About Assembly Bill 937 (the “VISION Act”)
The resolution, “A Resolution of the Santa Ana City Council Supporting Assembly Bill 937
(the “VISION Act”),” declares the City’s support for Assembly Bill 937 (AB 937), also
referred to as the VISION Act. In summary, AB 937 prohibits state and local law
enforcement agencies from cooperating with federal immigration authorities, or assisting
in the detention, deportation, or interrogation of an individual by immigration enforcement.
Specifically, AB 937 establishes the following:
1. Specifies that a state or local agency shall not arrest or assist with the arrest,
confinement, detention, transfer, interrogation, or deportation of an individual for
an immigration enforcement purpose in any manner including, but not limited to,
by notifying another agency or subcontractor thereof regarding the release date
and time of an individual, releasing or transferring an individual into the custody
of another agency or subcontractor thereof, or disclosing personal information, as
specified, about an individual, including, but not limited to, an individual’s date of
birth, work address, home address, or parole or probation check in date and time
to another agency or subcontractor thereof.
Assembly Bill 937 (the “VISION Act”)
May 4, 2021
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2. States that the prohibition described above shall apply notwithstanding any
contrary provisions in the California Values Act, as specified, which allows law
enforcement to cooperate with immigration authorities in limited circumstances.
3. Specifies that this bill does not prohibit compliance with a criminal judicial
warrant.
4. Prohibits a state or local agency or court from using immigration status as a
factor to deny or to recommend denial of probation or participation in any
diversion, rehabilitation, mental health program, or placement in a credit-earning
program or class, or to determine custodial classification level, to deny
mandatory supervision, or to lengthen the portion of supervision served in
custody.
5. Defines the following terms for purposes of this bill:
a. “Immigration enforcement” includes “any and all efforts to investigate,
enforce, or assist in the investigation or enforcement of any federal civil
immigration law, and also includes any and all efforts to investigate,
enforce, or assist in the investigation or enforcement of any federal
criminal immigration law that penalizes a person’s presence in, entry, or
reentry to, or employment in, the United States.”
b. “State or local agency” includes, but is not limited to, “local and state law
enforcement agencies, parole or probation agencies, the Department of
Juvenile Justice, and the Department of Corrections and Rehabilitation.”
6. Specifies that in addition to any other sanctions, penalties, or remedies provided
by law, a person may bring an action for equitable or declaratory relief in a court
of competent jurisdiction against a state or local agency or state or local official
that violates this section. A state or local agency or official that violates this
section is also liable for actual and general damages and reasonable attorney’s
fees.
7. Repeals statutory provisions directing California Department of Corrections and
Rehabilitation (CDCR) to implement and maintain procedures to identify inmates
serving terms in state prison who are undocumented aliens subject to
deportation.
8. Repeals statutory provisions directing CDCR and California Youth Authority to
implement and maintain procedures to identify, within 90 days of assuming
custody, inmates who are undocumented felons subject to deportation and refer
them to the United States Immigration and Naturalization Service.
Assembly Bill 937 (the “VISION Act”)
May 4, 2021
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9. Repeals statutory provisions directing CDCR to cooperate with the United States
Immigration and Naturalization Service by providing the use of prison facilities,
transportation, and general support, as needed, for the purposes of conducting
and expediting deportation hearings and subsequent placement of deportation
holds on undocumented aliens who are incarcerated in state prison.
10.Repeals the statutory directive to include place of birth (state or country) in state
or local criminal offender record information systems.
11.States that, to ensure an equitable opportunity for noncarceral, rehabilitative, and
diversionary dispositions or custody status to all persons involved in the criminal
legal system, irrespective of immigration status, it is the intent of the Legislature
to abrogate case law that is inconsistent with this value, including, but not limited
to, People v. Sanchez (1987) 190 Cal.App.3d 224; People v. Cisneros (2000) 84
Cal.App.4th 352; People v. Espinoza (2003) 107 Cal.App.4th 1069; People v.
Arce (2017) 11 Cal.App.5th 613.
12.Makes other findings and declarations.
For more information on AB 937, please see the attached analyses prepared by the
Assembly Committee on Public Safety (Exhibit 2) and Assembly Committee on Judiciary
(Exhibit 3).
About the Santa Ana Sanctuary Ordinance (Ordinance No. NS-2908)
On January 17, 2021, the Santa Ana City Council adopted Ordinance No. NS-2908: An
Uncodified Ordinance of the City Council of the City of Santa Ana relating to the City’s
Procedures Concerning Sensitive Information and the Enforcement of Federal
Immigration Law following the Declaration of the City of Santa Ana as a Sanctuary for all
its Residents (“Sanctuary Ordinance”). The Sanctuary Ordinance established the City’s
procedures concerning immigration status and enforcement of federal civil immigration
laws. These procedures included the following: protecting sensitive information,
prohibiting the use of City resources for immigration enforcement, preventing biased-
based policing, and directing law enforcement personnel to exercise discretion to cite and
release individuals in lieu of detaining them at a local detention facility or county jail based
on the nature of the alleged crime.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal impact associated with this action.
EXHIBIT(S)
1. Resolution
Assembly Bill 937 (the “VISION Act”)
May 4, 2021
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2. Analysis of AB 937 prepared by the Assembly Committee on Public Safety
3. Analysis of AB 937 prepared by the Assembly Committee on the Judiciary
Submitted By: Kristine Ridge, City Manager
Approved By: Kristine Ridge, City Manager
Resolution No. 2021-XXX
Page 1 of 2
RESOLUTION 2021-XXX
A RESOLUTION OF THE SANTA ANA CITY COUNCIL SUPPORTING ASSEMBLY BILL 937
(THE “VISION ACT”)
WHEREAS, refugees and immigrants are a vital part of California’s heart and identity,
and we recognize the humanity of all people who call our community home; and
WHEREAS, California’s criminal justice system unjustly and disproportionately harms
Black, Latinx, Indigenous, and Asian and Pacific Islander American communities; and
WHEREAS, with the passing of SB 260, SB 261, SB 1437, AB 1812, which amended
paragraph (1) of subdivision (d) of Section 1170 of the Penal Code, and Proposition 47, the
Legislature and California voters have demonstrated a strong commitment to reforming our
criminal justice system and ending mass incarceration; and
WHEREAS, despite these reforms, California reinforces systemic racism when its jails
and prisons voluntarily and unnecessarily transfer immigrant and refugee community members
eligible for release from state or local custody to Immigration and Customs Enforcement (ICE) for
immigration detention and deportation purposes; and
WHEREAS, jails and prisons serve as the main pipeline to fill immigration detention beds,
and approximately 70 percent of people detained in ICE custody, nationally, have been funneled
through our criminal justice system; and
WHEREAS, California should not subject these community members to a cruel “double
punishment,” and disregard their humanity, records of rehabilitation, stable reentry plans, and
community support, purely because they are refugees or immigrants; and
WHEREAS, ending ICE transfers in California is a reflection of the state’s commitment to
ending racial injustice and mass incarceration; and
WHEREAS, the VISION Act (Assembly Bill 937), authored by Assemblymember Carrillo,
prohibits jails, prisons, and other public agencies from funneling community members who are
eligible for release to ICE jails where they endure deplorable conditions and face permanent
separation from their families and communities; and
WHEREAS, through the passing of the VISION Act, California has an opportunity to set
a model for the nation and advance a positive vision of a society based on care, healing, and
transformation; and
WHEREAS, our community refuses to use local and state resources to separate children
from their parents and detain and deport millions of parents, neighbors, co-workers, and friends;
and
Resolution No. 2021-XXX
Page 2 of 2
WHEREAS, the City of Santa Ana values all members of our community, embraces
compassion, equality, and inclusion, and proudly defends the rights of all residents, including
refugees and immigrants.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana, that:
Section 1. The City of Santa Ana is in strong support of the passing of the VISION Act
in California.
Section 2. This Resolution shall take effect immediately upon its adoption by the City
Council, and the Clerk of Council shall attest to and certify the vote adopting this Resolution.
ADOPTED this ____ day of May, 2021.
Vicente Sarmiento
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By:
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, DAISY GOMEZ, Clerk of the Council, do hereby certify the attached Resolution No.
2021 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on
_____________________, 2021.
Date:
Clerk of the Council
City of Santa Ana
AB 937
Page 1
Date of Hearing: April 6, 2021
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB 937 (Carrillo ) – As Amended March 22, 2021
SUMMARY: Eliminates the existing ability under the Values Act for law enforcement
agencies to cooperate with federal immigration authorities by giving them notification of release
for inmates or facilitating inmate transfers. Prohibits all state and local agencies from assisting,
in any manner, the detention, deportation, interrogation, of an individual by immigration
enforcement. Specifically, this bill:
1) Specifies that a state or local agency shall not arrest or assist with the arrest, confinement,
detention, transfer, interrogation, or deportation of an individual for an immigration
enforcement purpose in any manner including, but not limited to, by notifying another
agency or subcontractor thereof regarding the release date and time of an individual,
releasing or transferring an individual into the custody of another agency or subcontractor
thereof, or disclosing personal information, as specified, about an individual, including, but
not limited to, an individual’s date of birth, work address, home address, or parole or
probation check in date and time to another agency or subcontractor thereof.
2) States that the prohibition described above shall apply notwithstanding any contrary
provisions in the California Values Act, as specified, which allowed law enforcement to
cooperate with immigration authorities in limited circumstances.
3) Specifies that this bill does not prohibit compliance with a criminal judicial warrant.
4) Prohibits a state or local agency or court from using immigration status as a factor to deny or
to recommend denial of probation or participation in any diversion, rehabilitation, mental
health program, or placement in a credit-earning program or class, or to determine custodial
classification level, to deny mandatory supervision, or to lengthen the portion of supervision
served in custody.
5) Clarifies the following terms for purposes of this bill:
a) “Immigration enforcement” includes “any and all efforts to investigate, enforce, or assist
in the investigation or enforcement of any federal civil immigration law, and also
includes any and all efforts to investigate, enforce, or assist in the investigation or
enforcement of any federal criminal immigration law that penalizes a perso n’s presence
in, entry, or reentry to, or employment in, the United States.”
b) “State or local agency” includes, but is not limited to, “local and state law enforcement
agencies, parole or probation agencies, the Department of Juvenile Justice, and the
Department of Corrections and Rehabilitation.”
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6) “Transfer” includes “custodial transfers, informal transfers in which a person’s arrest is
facilitated through the physical hand -off of that person in a nonpublic area of the state or
local agency, or any coordination between the state or local agency and the receiving agency
about an individual’s release to effectuate an arrest for immigration enforcement purposes
upon or following their release from the state or local agency’s custody.”
7) States that in addition to any other sanctions, penalties, or remedies provided by law, a
person may bring an action for equitable or declaratory relief in a court of competent
jurisdiction against a state or local agency or state or local official that violates the provisions
of this bill.
8) Specifies that a state or local agency or official that violates the provisions of this bill is also
liable for actual and general damages and reasonable attorney’s fees.
9) Repeals statutory provisions directing California Department of Corrections and
Rehabilitation to implement and maintain procedures to identify inmates serving terms in
state prison who are undocumented aliens subject to deportation.
10) Repeals statutory provisions directing CDCR and California Youth Authority to implement
and maintain procedures to identify, within 90 days of assuming custody, inmates who are
undocumented felons subject to deportation and refer them to the United States Immigration
and Naturalization Service.
11) Repeals statutory provisions directing CDCR to cooperate with the United States
Immigration and Naturalization Service by providing the use of prison facilities,
transportation, and general support, as needed, for the purposes of conduc ting and expediting
deportation hearings and subsequent placement of deportation holds on undocumented aliens
who are incarcerated in state prison.
12) Repeals the statutory directive to include place of birth (state or country) in state or local
criminal offender record information systems.
13) Makes Legislative findings and declarations.
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 deta iner 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
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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 notwithstanding any other provision of Federal, State, or local law, 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 U.S.C. 1373, subd. (a).)
5) States that notwithstanding any other provision of Federal, State, or local law, no State or
local government entity may be prohibited, or in any way restricted, from sending to or
receiving from the Immigration and Naturalization Service information regarding the
immigration status, lawful or unlawful, of an alien in the United States. (8 U.S.C. 1644.)
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) Defines "Notification request" as an Immigration and Customs Enforcement request that a
local law enforcement agency inform ICE of the release date and time in advance of the
public of an individual in its custody and includes, but is not limited to, DHS Form I-247N.
(Gov. Code, § 7283, subd. (f).)
3) Defines "Transfer request" as an Immigration and Customs Enforcement request that a local
law enforcement agency facilitate the transfer of an individual in its custody to ICE, and
includes, but is not limited to, DHS Form I-247X. (Gov. Code, § 7283, subd. (f).)
4) Prohibits law enforcement agencies (including school police and security departments) from
using resources to investigate, interrogate, detain, detect, or arrest people for immigration
enforcement purposes. These provisions are commonly known as the Values Act.
Restrictions include:
a) Inquiring into an individual's immigration status;
b) Detaining a person based on a hold request from ICE;
c) Providing information regarding a person’s release date or responding to requests for
notification by providing release dates or other information unless that information is
available to the public;
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d) Providing personal information, as specified, including, but not limite d to, name, social
security number, home or work addresses, unless that information is “available to the
public;”
e) Arresting a person based on a civil immigration warrant;
f) Participating in border patrol activities, including warrantless searches;
g) Performing the functions of an immigration agent whether through agreements known as
287(g) agreements, or any program that deputizes police as immigration agents;
h) Using ICE agents as interpreters;
i) Transfer an individual to immigration authorities unless authorized by a judicial warrant
or judicial probable cause determination, or except as otherwise specified;
j) Providing office space exclusively for immigration authorities in a city or county law
enforcement facility; and,
k) Entering into a contract, after June 15, 2017, with the federal government to house or
detain adult or minor non-citizens in a locked detention facility for purposes of
immigration custody. (Gov. Code, § 7284.6, subd. (a).)
5) Describes the circumstances under which a law enforcement agency has discretion to respond
to transfer and notification requests from immigration authorities. These provisions are
known as the TRUST Act. Law enforcement agencies cannot honor transfer and notification
requests unless one of the following apply:
a) The individual has been convicted of a serious or violent felony, as specified;
b) The individual has been convicted of any felony which is punishable by imprisonment in
state prison;
c) The individual has been convicted within the last five years of a misdemeanor for a crime
that is punishable either as a felony or misdemeanor (a wobbler);
d) The individual has been convicted within the past 15 years for any one o f a list of
specified felonies;
e) The individual is a current registrant on the California Sex and Arson Re gistry;
f) The individual has been convicted of a federal crime that meets the definition of an
aggravated felony as specified in the federal Immigration and Nationality Act ; or,
g) The individual is identified by ICE as the subject of an outstanding federal felony arrest
warrant for any federal crime; or,
h) The individual is arrested on a charge involving a serious or violent felony, as specified,
or a felony that is punishable by imprisonment in state prison, and a magistrate makes a
finding of probable cause as to that charge. (Gov. Code, § 7282.5.)
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6) Provides that law enforcement agencies are able to participate in joint taskforces with the
federal government only if the primary purpose of the joint task force is not immigration
enforcement. Participating agencies must annually report to the California Department of
Justice (DOJ) if there were immigration arrests as a result of task force operations. (Gov.
Code, § 7284.6, subds. (b) & (c).)
7) Allows law enforcement agencies to respond to a request from immigration authorities for
information about a person’s criminal history. (Gov. Code, § 7284.6, subd. (b)(2).)
8) Allows law enforcement agencies to make inquiries into information necessary to certify an
individual who has been identified as a potential crime or trafficking victim for a T or U
Visa. (Gov. Code, § 7284.6, subds. (b)(4).)
9) Allows law enforcement agencies to give immigration authorities access to interview an
individual in agency custody if such access complies with the TRUTH Act. (Gov. Code, §
7284.6, subds. (b)(5).)
FISCAL EFFECT: Unknown.
COMMENTS:
1) Author's Statement: According to the author, "AB 937 helps California realize its promise
of protecting immigrant rights and reforming our criminal justice system. Under current law
many individuals that have completed their sentence or have been deemed eligible for release
from a California jail or prison can face a second punishment in the immigration detention
system, solely because of where they were born. AB 937 will stop this arbitrary second
punishment where one has no right to legal representation, pretrial release, or a hearing from
a jury of their peers. Immigration Detainees can find themselves housed in county jails and
even private facilities anywhere in America, facilities beyond the oversight and
accountability of the state of California where abuse and neglect is well documented. All
Californians, regardless of citizenship status, should get the chance to reintegrate back into
their communities and reunite with their families when they have paid their debt to society.”
2) California Values Act: The Values Act, which became effective on January 1, 2018, limits
the involvement of state and local law enforcement agencies in federal immigration
enforcement. It prohibits law enforcement agencies (including school police and security
departments) from using resources to investigate, interrogate, detain, detect, or arrest people
for immigration enforcement purposes. It also places limitations on the ways in which law
enforcement agencies can collaborate with federal task forces that involve elements of
immigration enforcement. Under the Values Act, CDCR is not considered a law
enforcement agency.
The Values Act was an expansion of prior state law, the TRUST Act which prohibited law
enforcement from honoring federal immigration holds unless the detainee had a criminal
history involving a serious or violent felony.
The Values Act contains some exceptions that allows law enforcement agencies to cooperate
with immigration authorities. Under the Values Act law enforcement is allowed to engage
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with immigration authorities in the following circumstances:
a) Provide a person’s release date or personal information, as specified, if such information
is available to the public;
b) Respond to notification and transfer requests when the individual had been convicted of
specified crimes which reflected a higher public safety danger and are on the serious end
of the criminal spectrum. Specifically, those crimes included serious and violent
felonies, as well as offenses requiring an individual to register as a sex offender;
c) Make inquiries into information necessary to certify an individual for a visa for a victim
of domestic violence and human trafficking;
d) Respond to a request from immigration authorities for information ab out a person’s
criminal history;
e) Participate with a joint law enforcement task force, as long as the primary purpose of the
task force is not immigration enforcement; or,
f) Give immigration authorities access to interview an individual in agency custody as long
as the interview access complied with the require ments of the TRUTH Act.
This bill would eliminate those exceptions for law enforcement to the extent that such
exceptions would constitute assistance in immigration enforcement, in any manner.
The prohibitions in this bill on assisting immigration enforcement in any manner are broader
in scope than the prohibitions described in the Values Act. The scope of this bill is also
broader than the Values Act because the prohibition on assistance applies to all state and
local agencies, as opposed to being directed toward law enforcement agencies.
This bill would prohibit any state of local agency, including law enforcement agencies, from
engaging in conduct which assists, in any manner, the arrest, detention, interrogation, or
deportation of an individual for immigration purposes. To the extent those broader
prohibitions might create a conflict with the Values Act, it is not clear which language would
control.
3) Reenactment Clause of the California Constitution:
“A section of a statute may not be amended unless the section is re-enacted as amended.”
California Const., Art. IV, § 9.
Under this provision of the State Constitution, the Legislature is required to reenact a code
section when passing legislation which amends that particular code section. This is intended
to ensure that legislators understand the scope and effect of the bill they are voting on. In
reviewing the contents of a bill that amends a code section, this rule allows that the bill
reader to easily identify amendments to existing law beca use the bill will set forth the
changes within the context of the current statute(s). One purpose of this constitutional
provision “is to make sure legislators are not operating in the blind when they amend
legislation, and to make sure the public can bec ome apprised of changes in the law.” The
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Gillette Company, et. al., v. Franchise Tax Board (2015) 62 Cal.4th 468,483.
This bill would amend the Values Act by repealing the portions of the Values Act which
allow law enforcement to cooperate under certain circumstances. Rather than amend the
Values Act, this bill creates a new statute and the repeals the portions of the Values Act by
cross reference. By failing to amend the Values Act, it creates confusion about how this bill
will change current law. To the extent that the provisions of this bill conflict with the Values
Act, it is not clear which statute would control.
One example of a potential conflict involves the directive in the Values Act for the Attorney
General to develop model policies. The Values Act required that the Attorney General to
publish model polices limiting assistance with immigration enforcement to the fullest extent
possible consistent with federal and state law at public schools, public libraries, health
facilities operated by the state, courthouses, division of Labor Standards Enforcement
facilities, the Agricultural Labor Relations Board, the Division of Workers Compensation,
and shelters. Under the Values Act, certain agencies are required to adopt those policies,
and the other entities are encouraged to adopt them. Would the provisions of this bill take
precedence over compliance with the policies generated by the Attorney General if there was
a conflict between the policies developed by the Attorney General and the provisions of this
bill?
Expressly amending the Values Act would provide legislators and the public clarity about
how the provisions of this bill are intended to interact with current law.
4) The Language in This Bill Prohibiting a State or Local Agency From Assisting
Immigration Enforcement is Quite Broad: This bill specifies that a “state or local agency
shall not arrest or assist with the arrest, confinement, detention, transfer, interrogat ion, or
deportation of an individual for an immigration enforcement purpose in any manner, . . .”
To “assist an immigration enforcement purpose in any manner” covers a wide range of
behavior, including making information available. That language is broad enough that a state
and local agency will need to evaluate whether any action it engages in might assist in
immigration enforcement, regardless of whether the action might have a policy purpose
unconnected to immigration enforcement. Any information that a state or local agency
shares with a federal entity makes it likely that such information would be accessible by
federal immigration authorities. It could be difficult for a state or local agency determine if
any information shared with federal agency might “assist” an immigration enforcement
purpose leading to an interrogation, detention, or ultimately deportation. State and local
agencies would face a similar problem with information that is available to the public either
via a website or through a public records request. If such information could assist with
immigration enforcement, should the state or local agency release such information? This
bill would expose any state or local agency to civil liability if the agency assists immigration
enforcement in any manner.
5) Lawsuit Challenging the Values ACT (U.S. v. California): The federal government filed
suit in federal court to challenge the Values Act asserting that the Values Act was preempted
and violated the supremacy clause of the U.S. Constitut ion because the Values Act
constituted an “obstacle” to federal immigration enforcement.
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A 2019 decision by the 9th Circuit Court of Appeal upheld the legitimacy of the Values act.
(US v. California (2019) 921 F.3d 865.) The U.S. Supreme Court subsequently declined the
opportunity to review the case. The case was first heard in federal district court. The District
Court held that the Values Act was not preempted by federal law:
“California's decision not to assist federal immigration enforcement in its endeavors is
not an ‘obstacle’ to that enforcement effort. [The United States'] argument that SB 54
makes immigration enforcement far more burdensome begs the question: more
burdensome than what? The laws make enforcement more burdensome than it would be
if state and local law enforcement provided immigration officers with their
assistance. But refusing to help is not the same as impeding. If such were the rule,
obstacle preemption could be used to commandeer state resources and subvert Tenth
Amendment principles.” (California I, 314 F. Supp. 3d at 1104.)
The case was appealed to the 9th District Court of Appeal which upheld the decision of the
district court regarding the Values Act. The 9th District Court of Appeal stated, “Even if SB
54 obstructs federal immigration enforcement, the United States' position that such
obstruction is unlawful runs directly afoul of the Tenth Amendment and the
anticommandeering rule.” (U.S. v. California, at 888.)
The United States' primary argument against SB 54 was that it forces federal authorities to
expend greater resources to enforce immigration laws. However, the 9th District Court of
Appeal found that would be the case regardless of SB 54, since California would still retain
the ability to decline to administer the federal program under the anticommandeering rule.
Under the anticommandeering rule Congress cannot issue direct orders to state legislatures
and permits a state to refuse to adopt federal policies. The court held that even in the absence
of SB 54, Congress could not "impress into its service—and at no cost to itself—the police
officers of the 50 States." (Id. at 889.)
The 9th District Court of Appeal noted that:
“F ederal schemes are inevitably frustrated when states opt not to participate in federal
programs or enforcement efforts. But the choice of a state to refrain from participation
cannot be invalid under the doctrine of obstacle preemption where, as here, it retains the
right of refusal. Extending conflict or obstacle preemption to SB 54 would, in effect,
‘dictate[] what a state legislature may and may not do,’ Murphy, 138 S. Ct. at 1478,
because it would imply that a state's otherwise lawful decision not to assist federal
authorities is made unlawful when it is codifie d as state law.” (Id. at 890.)
This bill would expand on the scope of the Values Act by extending the prohibition on
cooperation with immigration authorities to all state and local agencies. The reasoning
behind the 9th District’s holding in U.S. v. California would likely continue to apply to the
expansion in scope. However, this bill potentially conflict s with existing federal statutes
require specific types of communication on immigration status to be exchanged between
immigration authorities and state and local entities.
The Values Act specifically allowed law enforcement to c omply with two federal statutes
related to immigration enforcement. (8 U.S.C. 1373, subd. (a), and 8 U.S.C. 1644.) These
statutes prohibit a state and local government from in any way restricting, any government
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entity or official from sending to, or receiving from, the Immigration and Naturalization
Service information regarding the citizenship or immigration status of any individual.
As part of its challenge to the Values Act, the United States contended that 8 U.S.C.
1373 directly prohibits the information-sharing restrictions of the Values Act. The 9 th Circuit
Court of appeal disagreed and noted that the Values Act expressly permits the sharing of
such information, and so does not appear to conflict with Section 1373.
This bill does not specifically reference those federal statutes or the sections of the Values
Act concerning those statutes. Therefore, to the extent the Values Act continues to have
effect beyond the enactment of this bill, perhaps law enforcement agencies would still be
allowed to comply with those federal statutes. This bill does not provide an exception
allowing state and local agencies (including law enforcement) to comply with those federal
statutes if such compliance would otherwise be prohibited by this bill.
The prohibitions in this bill on state and local agencies actions that assist in immigration
enforcement would seem to include a prohibition on sending any information to immigration
authorities if it would assist in immigration enforcement. Without express provisions
allowing state and local agencies to comply with those federal statutes, it does seem more
likely that a court could find that this bill is in conflict with, and preempted by, federal law.
6) Argument in Support: According to the Initiate Justice, "When California’s jails and
prisons voluntarily and unnecessarily transfer immigrant and refugee community members
eligible for release from state or local custody to ICE for immigration detention and
deportation purposes, they subject these community members to double punishment and
perpetual trauma. Community members can be incarcerated by ICE, often for pro longed
periods and with no right to bail, and deported --permanently banishing them from the
country, from their families, their homes, their livelihoods.
“As the state with the largest immigrant community in the country, California has an ethical
and moral obligation to step up our leadership and take action to protect the rights of all
refugees and immigrants who call California home, including those eligible for release from
our local jails and state prisons. If we fail to end the cruel practice of ICE t ransfers,
California will continue to actively participate in the separation of immigrant and refugee
families, and inflict irreparable harm to those who came here fleeing war and genocide or to
simply build a better life for themselves and their children.
“Moreover, state and local participation in federal immigration enforcement programs has
raised constitutional concerns, including arrests and detentions that violate the Fourth
Amendment to the United States Constitution, and that target immigrants on the basis of race
or ethnicity in violation of the Equal Protection Clause.
“Transferring California residents to ICE custody is costly. By ending voluntary ICE
transfers, California stands to save state resources that can be invested in mental health,
housing, youth development, and access to living wages-- all of which have been proven to
reduce crime and stabilize communities.
“In conclusion, California should not subject community members to double punishment,
and disregard their record of rehabilitation, stable reentry plans, and community support,
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purely because they are refugees or immigrants. Ending ICE transfers in California is a
necessary step in fulfilling the state’s commitment to ending racial injustice and mass
incarceration.”
7) Argument in Opposition: According to the Peace Officers Research Association of
California, “AB 937 would prohibit any state or local agency from arresting or assisting with
the arrest, confinement, detention, transfer, interrogation, or deportation of an individual for
an immigration enforcement purposes. The bill would additionally prohibit state or local
agencies or courts from using immigration status as a factor to deny or to recommend denial
of probation or participation in any diversion, rehabilitation, mental health program, or
placement in a credit-earning program or class, or to determine custodial classification level,
to deny mandatory supervision, or to lengthen the portion of supervision served in custody.
“Congress defined our nation’s immigration laws in the Immigration and Nationality Act
(INA), which contains both criminal and civil enforcement measures. PORAC cannot
support a State bill that forces our States public safety officers to stand by while our federal
counterparts are injured or killed in the performance of their duties. In addition, if the federal
government requires our involvement, such as temporarily housing an undocumented
arrestee, then it is our responsibility to adhere to the needs of the federal government. This
proposed legislation puts local law enforcement in a no-win situation, having to choose
between state and federal laws.”
8) Related Legislation: AB 263 (Bonta), would specify that private detention centers are
subject to state and local health orders. AB 263 is on the Assemb ly Floor.
9) Prior Legislation:
a) AB 2596 (Bonta), of the 2019-2020 Legislative Session, would have eliminated the
existing ability for law enforcement agencies to cooperate with federal immigration
authorities by giving them notification of release for inmates or facilitating inmate
transfers. AB 2596 was never heard in Assembly Public Safety.
b) AB 2948 (Allen), of the 2017-2018 Legislative Session, would have repealed the
California Values Act SB 54, which defines the circumstances under which law
enforcement agencies may assist in the enforcement of federal immigration laws and
participate in joint law enforcement task forces. AB 2948 failed passage in the Assembly
Public Safety Committee.
c) AB 2931 (Patterson), of the 2017-2018 Legislative Session, would have expanded the list
of qualifying criminal convictions which permit law enforcement to cooperate with
federal immigration authorities. AB 2931 failed passage in the Assembly Public Safety
Committee.
d) AB 298 (Gallagher), of the 2017-2018 Legislative Session, would have repealed the
TRUST Act and required 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 became eligible for release from custody. AB 298 failed
passage in this committee.
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e) AB 1252 (Allen), of the 2017-2018 Legislative Session, would have repealed the TRUST
Act and prohibited state grants to county and local “sanctuary jurisdictions.” AB 1252
fa iled passage in this committee.
f) SB 54 (De Leon), Chapter 495, Statutes of 2017, limited the involvement of state and
local law enforcement agencies in federal immigration enforcement.
g) AB 2792 (Bonta), Chapter 768, Statutes of 2016, requires local law enforcement agencies
to provide copies of specified documentation received from ICE to the individual in
custody and to notify the individual regarding the intent of the agency to comply with
ICE requests.
REGISTERED SUPPORT / OPPOSITION :
Support
Alliance for Boys and Men of Color (Co-Sponsor)
Alliance San Diego (Co-Sponsor)
Asian Americans Advancing Justice - California (Co-Sponsor)
Asian Prisoner Support Committee (Co-Sponsor)
California Coalition for Women Prisoners (Co -Sponsor)
California Immigrant Policy Center (Co-Sponsor)
Center for Empowering Refugees and Immigrants (Co -Sponsor)
Communities United for Restorative Youth Justice (CURYJ) (Co -Sponsor)
Community United Against Violence (Co-Sponsor)
Freedom for Immigrants (Co-Sponsor)
Ice Out of Marin (Co-Sponsor)
Immigrant Legal Resource Center (Co -Sponsor)
Inland Coalition for Immigrant Justice (Co -Sponsor)
Interfaith Movement for Human Integrity (Co -Sponsor)
Legal Services for Prisoners With Children (Co -Sponsor)
Long Beach Immigrant Rights Coalition (Co-Sponsor)
Orange County Rapid Response Network (Co -Sponsor)
Re:store Justice (Co-Sponsor)
Santa Barbara County Action Network (Co -Sponsor)
Secure Justice (Co-Sponsor)
South Bay People Power (Co-Sponsor)
The Orange County Justice Fund (Co -Sponsor)
Vietrise (Co-Sponsor)
Young Women's Freedom Center (Co-Sponsor)
Youth Justice Coalition (Co-Sponsor)
Alianza
Alliance of Californians for Community Empowerment (ACCE) Action
American Civil Liberties Union/northern California/southern California/san Diego and Impe rial
Counties
Asian Solidarity Collective
Buen Vecino
Buena Vista United Methodist Church Immigration Committee
AB 937
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California Public Defenders Association (CPDA)
California United for A Responsible Budget (CURB)
Californiahealth+ Advocates
Californians for Safety and Justice
Church World Service
Community Justice Exchange
Community Legal Services in East Palo Alto
Contra Costa Immigrant Rights Alliance
Courage California
Critical Resistance
Drug Policy Alliance
East Yard Communities for Environmental Justice
Ella Baker Center for Human Rights
Empowering Pacific Islander Communities (EPIC)
Equal Rights Advocates
Filipino Migrant Center
Friends Committee on Legislation of California
Hope for All: Helping Others Prosper Economically
Human Impact Partners
Human Rights Watch
Immigrant Defenders Law Center
Immigrant Defense Advocates
Indivisible Sausalito
Initiate Justice
Irvine United Congregational Church -- Advocates for Peace and Justice
Kehilla Community Synagogue
Khmer Girls in Action
Lakeshore Avenue Baptist Church
Long Beach Southeast Asian Anti-deportation Collective
Mixteco Indigena Community Organizing Project (MICOP)
Network in Solidarity With the People of Guatemala
New Bridges Presbyterian Church
Nikkei Progressives
No New Sf Jail Coalition
Norcal Resist
Oakland Privacy
Or Shalom Jewish Community
Orange County Equality Coalition
Pangea Legal Services
Pico California
Pillars of The Community
San Diego; County of
San Francisco Peninsula People Power
San Francisco Public Defender
Showing Up for Racial Justice (SURJ) San Diego
Showing Up for Racial Justice North County
Southeast Asia Resource Action Center
Surj Contra Costa County
Surj San Mateo
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Survived and Punished
Team Justice
Think Dignity
UC Berkeley's Underground Scholars Initiative (USI)
Uncommon Law
Unitarian Universalist Fellowship of Redwood City, Social Action Committee
Viet Rainbow of Orange County
We the People - San Diego
Woman INC
Women for American Values and Ethics Action Fund
Women For: Orange County
Oppose
California Police Chiefs Association
California State Sheriffs' Association
Peace Officers Research Association of California (PORAC)
Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744
AB 937
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Date of Hearing: April 20, 2021
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 937 (Carrillo ) – As Amended March 22, 2021
As Proposed to be Amended
SUBJECT: IMMIGRATION ENFORCEMENT
KEY ISSUE: SHOULD SEVERAL PROVISIONS OF EXISTING LAW THAT LIMIT THE
ABILITY OF STATE AND LOCAL LAW ENFORCEMEN T TO COOPERATE AND SHARE
INFORMATION WITH FEDERAL IMMIGRATION AUTHORITIES BE STRENGTHENED
AND EXPANDED SO THAT THEY, AMONG OTHER THINGS, ALSO APPLY TO ALL
STATE AND LOCAL GOVERNMENT AGENCIES AS WELL AS THE CALIFORNIA
DEPARTMENT OF CORREC TIONS AND REHABILITATION ?
SYNOPSIS
This bill, the Voiding Inequality and Seeking Inclusion for Our Immigrant Neig hbors (VISION)
Act, would prohibit all state and local agencies (including law enforcement agencies and the
California Department of Corrections and Rehabilitation) from doing any of the following:
1) Arresting or assisting with the arrest, confinement, deten tion, transfer, interrogation, or
deportation of an individual for an immigration enforcement purpose in any manner .
2) Using immigration status as a factor to deny or to recommend denial of probation or
participation in any diversion, rehabilitation, mental health program, or placement in a
credit -earning program or class, or to determine custodial classification level, to deny
mandatory supervision, or to lengthen the portion of supervision served in custody.
These prohibitions would apply, according to the bill, notwithstanding any contrary provisions
in existing law —specifically including those in the California Values Act --which allow for state
and local law enforcement agencies to cooperate with federal immigration authorities under
certain specified and limited circumstances.
The analysis reviews the long history of ICE employing methods that range from inhumane to
illegal, beginning at least as early as the Obama administration, worsening during the Trump
administration, and continuing through today. Th e analysis explains why, even though the
Values Act, current California law that limits law enforcement involvement in immigration
enforcement activities, was adopted in reaction to the Trump administration’s particularly cruel
policies, even greater restrictions on the use of public resources to assist ICE, as propo sed by
the bill, are necessary. The analysis also addresses the fact that the bill does not amend or
repeal the Values Act, but instead is a parallel statute, creating less than ideal clarity ab out how
the two laws would interact. It discusses why the bill almost certainly does not violate the state
constitution’s reenactment clause, but could possibly be subject to a conflict preemption
challenge, Finally, the analysis discusses the fact that th e bill imposes civil liability on
government employees and agencies for violating the bill’s prohibitions, an exception to the
general rule of governmental immunity.
In order to address the possible, but remote, concern that some aspects of the bill could raise
conflict preemption concerns, the author proposes to make two clarifying amendments. First, the
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author intends to amend the bill to add additional intent language, clarifying that it is the intent
of the bill to be consistent with federal law. Secon d, the author proposes to add a severability
clause to the bill so that in the event that any portion of the bill should be invalidated, other
portions of the bill would remain in effect.
The bill, which recently was approved by the Assembly Public Safety Committee, is co-sponsored
by a large coalition of social justice organizations led by Asian Americans Advancing Justice –
Asian Law Caucus and supported by dozens of civil rights, criminal justice reform, and
immigrant advocacy organizations. It is opposed by three law enforcement organizations:
Calif ornia Police Chiefs Association, California State Sheriffs' Association , and Peace Officers
Research Association of California (PORAC).
SUMMARY: Prohibits state and local law enforcement agencies from cooperating with federal
immigration authorities, or assisting in the detention, deportation, interrogation, of an individual
by immigration enforcement. Specifically, this bill:
1) Specifies that a state or local agency shall not arrest or assist with the arrest, confinement,
detention, transfer, interrogation, or deportation of an individual for an immigration
enforcement purpose in any manner including, but not limited to, by notifying another
agency or subcontractor thereof regarding the release date and time of an individual,
releasing or transferring an individual into the custody of another agency or subcontractor
thereof, or disclosing personal information, as specified, about an individual, including, but
not limited to, an individual’s date of birth, work address, home address, or parole or
probation check in date and time to another agency or subcontractor thereof.
2) States that the prohibition described above shall apply notwithstanding any contrary
provisions in the California Values Act, as specified, which allows law enforcement to
cooperate with immigration authorities in limited circumstances.
3) Specifies that this bill does not prohibit compliance with a criminal judicial warrant.
4) Prohibits a state or local agency or court from using immigra tion status as a factor to deny or
to recommend denial of probation or participation in any diversion, rehabilitation, mental
health program, or placement in a credit-earning program or class, or to determine custodial
classification level, to deny mandato ry supervision, or to lengthen the portion of supervision
served in custody.
5) Defines the following terms for purposes of this bill:
a) “Immigration enforcement” includes “any and all efforts to investigate, enforce, or assist
in the investigation or enforceme nt of any federal civil immigration law, and also
includes any and all efforts to investigate, enforce, or assist in the investigation or
enforcement of any federal criminal immigration law that penalizes a person’s presence
in, entry, or reentry to, or employment in, the United States.”
b) “State or local agency” includes, but is not limited to, “local and state law enforcement
agencies, parole or probation agencies, the Department of Juvenile Justice, and the
Department of Corrections and Rehabilitation.”
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6) Specifies that in addition to any other sanctions, penalties, or remedies provided by law, a
person may bring an action for equitable or declaratory relief in a court of competent
jurisdiction against a state or local agency or state or local official that violates this section. A
state or local agency or official that violates this section is also liable for actual and general
damages and reasonable attorney’s fees.
7) Repeals statutory provisions directing California Department of Corrections and
Rehabilitation (CDCR) to implement and maintain procedures to identify inmates serving
terms in state prison who are undocumented aliens subject to deportation.
8) Repeals statutory provisions directing CDCR and California Youth Authority to implement
and maintain procedures to identify, within 90 days of assuming custody, inmates who are
undocumented felons subject to deportation and refer them to the United States Immigration
and Naturalization Service.
9) Repeals statutory provisions directing CDCR to cooperate with the United States
Immigration and Naturalization Service by providing the use of prison facilities,
transportation, and general support, as needed, for the purposes of c onducting and expediting
deportation hearings and subsequent placement of deportation holds on undocumented aliens
who are incarcerated in state prison.
10) Repeals the statutory directive to include place of birth (state or country) in state or local
criminal offender record information systems.
11) States that, to ensure an equitable opportunity for noncarceral, rehabilitative and diversionary
dispositions or custody status to all persons involved in the criminal legal system,
irrespective of immigration status, it is the intent of the Legislature to abrogate case law that
is inconsistent with this value, including, but not limited to, People v. Sanchez (1987) 190
Cal.App.3d 224; People v. Cisneros (2000) 84 Cal.App.4th 352; People v. Espinoza (2003)
107 Cal.App.4th 1069; People v. Arce (2017) 11 Cal.App.5th 613.
12) Makes other findings and declarations.
EXISTING FEDERAL LAW:
1) Provides that any authorized immigration officer may at any time issue an Immigration
Detainer-Notice of Action, to any other federal, state, or local law enforcement agency,
which 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 requests that the notified 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 eithe r impracticable or
impossible. (8 C .F.R. Section 287.7 (a).)
2) Requires 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 C.F.R. Section 287.7 (d).)
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3) Authorizes the Secretary of Homeland Security to enter into agreements that delegate
immigration powers to local police. (8 U.S.C. Section 1357 (g).)
4) States that notwithstanding any other provision of Federal, State, or local law, 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 U.S.C. 1373 (a).)
5) States that notwithstanding any other provision of Federal, State, or local law, no State or
local government entity may be prohib ited, or in any way restricted, from sending to or
receiving from the Immigration and Naturalization Service information regarding the
immigration status, lawful or unlawful, of an alien in the United States. (8 U.S.C. 1644.)
EXISTING STATE LAW:
1) Defines a “California law enforcement agency” to mean a state or local law enforcement
agency, including school police or security departments, but not to include the Department of
Corrections and Rehabilitation. (Government Code Section 7284.4 (a). All further statutory
references are to the Government Code, unless otherwise indicated.)
2) Provides that a law enforcement official shall ha ve discretion to cooperate with immigration
authorities only if doing so would not violate any federal, state, or local law, or local policy,
and where permitted by the California Values Act. (Section 7282.5 (a).)
3) Prohibits a California law enforcement agency from performing a number of immigration-
related activities, including the following:
a) Using agency or department moneys or personnel to investigate, interrogate, detain,
detect, or arrest persons for immigration enforcement purposes, including providing
information regarding a person’s release date or responding to requests for notification by
providing release dates or other information unless that information is available to the
public, or is in response to a notification request from immigration authorities. (Section
7284.6 (a)(1)(C).)
b) Transferring an individual to immigration authorities unless authorized by a judicial
warrant or judicial probable cause determination, or in accordance with existing law.
(Section 7284.6 (a)(4).)
4) Notwithstanding 3), above, allows any California law enforcement agency to do the
following as long as it does not violate any policy of the law enforcement agency or any local
law or policy of the jurisdiction in which the agency is operating:
a) Investigating, enforcing, or detaining upon reasonable suspicion of, o r arresting for a
violation of a specified immigration offense that is detected during an unrelated law
enforcement activity.
b) Responding to a request from immigration authorities for information about a specific
person’s criminal history, including previous criminal arrests, convictions, or similar
criminal history information accessed through the California Law Enforcement
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Telecommunications System (CLETS), where otherwise permitted by state law. (Section
7284.6 (b).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill, the Voiding Inequality and Seeking Inclusion for Our Immigrant
Neighbors (VISION) Act, seeks to further the priorities of the State of California by prohibiting
all public resources, including all state and local government agency personnel, facilities, and
equipment, from being used to assist with the arrest, confinement, detention, transfer,
interrogation, or deportation of an individual for an immigration enforcement purpose .
Specifically, this bill would prohibit all state and local agencies (including law enforcement
agencies and the California Department of Corrections and Rehabilitation) from doing any of the
following:
1) Arresting or assisting with the arrest, confinement, detention, transfer, interrogation, or
deportation of an individual for an immigration enforcement purpose in any manner ,
including the following:
a) N otifying another agency or subcontractor thereof regarding the release date a nd time of
an individual, releasing or transferring an individual into the custody of another age ncy or
subcontractor thereof.
b) Disclosing personal information about an individual, including, but not limited to, an
individual’s date of birth, work address, home address, or parole or probation check in
date and time to another agency or subcontractor thereof.
2) Using immigration status as a factor to deny or to recommend denial of probation or
participation in any diversion, rehabilitation, mental health program, or placement in a credit-
earning program or class, or to determine custodial classification level, to deny mandatory
supervision, or to lengthen the portion of supervision served in custody.
These prohibitions would apply, according to the bill, notwithstanding any contrary provisions in
existing law—specifically including those in the California Values Act--which allow for state
and local law enforcement agencies to cooperate with federal immigration authorities under
certain specified and limited circumstances.
The bill is therefore more restrictive than the Values Act in several ways . First, the bill prohibits
disclosure or release of personal information about detainees to federal immigration authorities,
even when the information is available to the public. Second, it prohibits the transfer of detainees
to federal immigration, including in cases where there has been a probable cause determination
and those in which the detainee has been convicted of one or more crimes specified in the Values
Act; and third, it applies to the California Department of Rehabilitation, and all state and local
government agencies, as well as all other state and local law enforcement agencies . Finally, in
order to help enforce its restrictions, the bill imposes civil liability on public agencies and
employees for violating its provisions.
Author’s Statement. According to the author, the greater protections offered by this bill because
of a well-documented history of immigration enforcement authorities abusing individuals who
are in their custody:
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AB 937 helps California realize its promise of protecting immigrant rights and reforming our
criminal justice system. . .. Immigration Detainees can find themselves housed in county jails
and even private facilities anywhere in America, facilities beyond the oversight and
accountability of the state of California where abuse and neglect is well documented. All
Californians, regardless of citizenship status, should get the chance to reintegrate back into
their communities and reunite with their families when they have paid their debt to society.
ICE regularly employs methods that range between inhumane and illegal. ICE was created in
response to the tragic events of September 11, 2001, with a stated mission to protect the United
States from cross-border crime and illegal immigration that threaten national security and public
safety. However, critics claim that the agency has gained a notorious record of abuse, illegality,
waste, and ineffectiveness in carrying out its intended purpo se. ICE’s abusive tactics are well-
documented. They include the separation of toddlers from their parents, forced sterilization, and
inhumane treatment in facilities. ICE has therefore earned a reputation amongst immigration
advocates as a dishonest and racist agency that regularly ignores legal limits. (See, e.g., Ms. L. v.
ICE (S.D. Cal.) No. 3:18-cv-00428, filed February 26, 2018; Flores v. Garland (C.D. Cal.), No.
2:85-cv-04544-DMG-AGR, filed June 26, 2020; Crew et al. v. ICE (D.D.C.), No. 1:20-cv-
03120, filed October 29, 2020.)
ICE under the Obama administration. Immigration advocates began criticizing ICE during the
George W. Bush. However, it was during the Obama administration that internal removal of
immigrants by ICE reached what was then an all-time high. The Obama administration removed
approximately 1,242,486 immigrants from the interior of the United States during its full eight
years, averaging 155,311 removals per year. Data from the earlier Bush administration are
more speculative, but they show an increase in deportations during the last half of President
Bush’s administration. This increase continued during President Obama’s first term, before
flattening and, finally, dropping rapidly in his second term. During his second term, President
Obama responded to the outcry against the high rates of deportation, which led to a pronounced
shift in focus to the removal of recent border crossers and criminals, rather than ordinary status
violators apprehended in the interior of the U.S. As a result, interior removals decreased sharply
from 181,798 in FY 2009 to 65,332 in FY 2016. Nevertheless, border removals stayed high and
increased, from 207,525 to 279,022 over the same period . (See Transactional Records Access
Clearinghouse, The Role of ICE Detainers Under Bush and Obama (Feb. 1, 2016), available at
https://trac.syr.edu/immigration/reports/458/.) President Obama summarized this later policy as:
“Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to
provide for her kids.” (See Barack Obama, Remarks by the President in Address to the Nation on
Immigration (Nov. 20, 2014), available at https://obamawhitehouse.archives.gov/the-press-
office/2014/11/20/remarks-president-address-nation-immigration.)
ICE’s changed priorities under the Trump administration. The Trump administration,
however, changed the federal government’s immigration enforcement priorities and tactics.
Many of those changes emanate from Executive Order 13768: “Enhancing Public Safety in the
Interior of the United States,” which President Trump issued on January 25, 2017, five days after
taking office. (Executive Order No. 13768, 82 Fed. Reg. 8799.) President Trump largely echoed
President Obama in his rhetoric regarding his immigration enforcement priorities, stating that he
intended to focus on criminals. His actual policies, however, dramatically expanded the list of
immigration enforcement priorities to include virtually every undocumented person. Pursuant to
executive orders from President Trump, on February 20, 2017, Department of Homeland
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Security Secretary John Kelly issued a pair of memoranda changing immigration enforcement
policy. In those memos, Secretary Kelly directed ICE to prioritize:
Removable aliens who: (1) have been convicted of any criminal offense; (2) have been
charged with any criminal offense that has not been resolved; (3) have committed acts which
constitute a chargeable criminal offense; (4) have engaged in fraud or willful
misrepresentation in connection with any official matter before a governmental agency;
(5) have abused any program related to receipt of public benefits; (6) are subject to a final
order of removal but have not complied with their legal obligation to depart the United
States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety
or national security. (See John Kelly, Enforcement of the Immigration Laws to Serve the
National Interest, U.S. Department of Homeland Security (Feb. 20, 2017) at 2, available at
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement -of-the-
Immigration-Laws-to-Serve-the-National-Interest.pdf.)
ICE’s role in family separations. On April 6, 2018, Attorney General Jeff Sessions notified all
U.S. Attorney’s Offices along the southwest border of a new “zero -tolerance policy” for both
actual and attempted illegal entry into the United States by any individual, as provided under 8
U.S.C. Section 1325(a). The zero-tolerance policy directed these U.S. Attorney’s Offices (which
included specified districts in California, Arizona, New Mexico, and Texas) to adopt a policy of
prosecuting all Department of Homeland Security (DHS) referrals of illegal entry or attempted
illegal entry to the extent practicable. (Attorney General Announces Zero-Tolerance Policy for
Criminal Illegal Entry, U.S. Department of Justice Office of Public Affairs (Apr. 2018),
available at https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-
criminal-illegal-entry.) On May 7, 2018, Sessions elaborated on the policy by stating, “If you are
smuggling a child then we will prosecute you, and that child will be separated from you as
required by law. If you don’t like that, then don’t smuggle children over our border." (Attorney
General Sessions Delivers Remarks Discussing the Immigra tion Enforcement Actions of the
Trump Administration, U.S. Department of Justice Office of Public Affairs (May 2018),
available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-
discussing-immigration-enforcement-actions.)
Unaccompanied minors taken into DHS custody are supposed to be transferred to the custody of
the Office of Refugee Resettlement (ORR) within the Department of Health and Human
Services. ORR is then required to care for the children in accordance with the Flores Settlement
Agreement. This Agreement sets the minimum nationwide standards for the detention, housing,
and release of non-citizen juveniles who are detained by the government and, according to the
Ninth Circuit United States Court of Appeals, “obliges the government to pursue a ‘general
policy favoring release’ of such juveniles.” (Flores v. Sessions (9th Cir. 2017) 862 F.3d 863.)
Flores created a presumption in favor of release of the detained minor, and particularly favors
release that results in family reunification. The Agreement provides that, unless immigration
authorities determine the detention of a minor is req uired to secure the minor’s timely
appearance before the immigration court, or to ensure the safety of the minor or others, the
authorities must release the minor from their custody without unnecessary delay, to a parent,
legal guardian, or other person or entity as specified. (Ibid.)
Instead, as a result of the Trump administration's zero -tolerance policy, thousands of children
were separated from their parents and housed in group facilities while their parents faced
prosecution for illegal entry into the United States—a crime that may ultimately result in their
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deportation. In response to this, on February 26, 2018, the American Civil Liberties Union
(ACLU) filed Ms. L. v. ICE (S.D. Cal.), No. 3:18-cv-00428, a nationwide class action that sought
to halt and undo the Trump administration’s family separation policy. On June 26, 2018, the
district court issued a preliminary injunction ordering the U.S. government to halt the family
separation policy, and to reunify all families that had already been separated . The court also
stayed the deportation of separated families. The case is currently ongoing.
However, it should be noted that another particularly cruel form of family separation also
occurred under the Trump administration due to ICE. Many undocumented individuals live with
family members in communities throughout the United States. As a result of increased
enforcement and raids by ICE officials, such individuals have been apprehended and detained in
detention centers, severing their connections to their loved ones, despite having no criminal
record. (See Priscilla Alvarez, Family separation and the Trump administration’s immigration
legacy (Oct. 7, 2020), CNN, available at https://www.cnn.com/2020/10/07/politics/trump-
family-separation/index.html.) Transactional Records Access Clearinghouse, a Syracuse
University-based research organization, created a profile of detainees held in 217 ICE
detention centers. As of June 30, 2018, ICE was holding 44,435 people in custody. Out of
this group, 58 percent had no criminal convictions, while about 21 percent had committed a
minor infraction, such a traffic violation; and 16 percent had committed what ICE
considered a serious crime, which included offenses such as selling marijuana. (See
Transactional Records Access Clearinghouse, Profiling Who ICE Detains - Few Committed
Any Crime (Oct. 9, 2018), available at http://trac.syr.edu/immigration/reports/530/.)
The impact of these policies, particularly of family separation at the border, is ongoing. As of
October 2020, hundreds of separated families had still not yet been reunited. Despite court orders
to reunify these families (See Ms. L v. ICE, supra), poor record-keeping, increased criminal
prosecutions of adult family members, and deportations of parents without their children have
hindered reunification efforts. (See Kaitlyn Dickinson, Parents of 545 children separated at the
border cannot be found (Oct. 21, 2020), New York Times, available at
https://www.nytimes.com/2020/10/21/us/migrant-children-separated.html.) For a far more
thorough review of IC E’s history of abusing detainees, using deceptive tactics to carry out its
raids, mismanaging its budget, misleading Congress , and struggling to carry out its core mission
to protect the safety of the nation, please see the Committee’s analysis of AJR 1 (Kalra), which
proposes to abolish ICE after transferring its duties to other federal officers and agencies in an
orderly fashion.
Now that Donald Trump is no longer president , why is the bill necessary? In 2017, motivated
by the Trump administration’s cruel and extreme immigration policies, California passed a
number of measures to protect residents of the state, including undocumented immigrants.
Among these were three “sanctuary bills”: AB 450 (Chiu, Chap. 492, Stats. 2017, dealing with
immigration inspection of workplaces), AB 103 (Committee on Public Safety, Chap. 17, Stats.
2017, imposing inspection requirements on facilities that house civil immigration detainees), and
SB 54, also known as the “Values Act” (DeLeon, Chap. 495, Stats. 2017, limiting the
cooperation between state and local law enforcement with federal immigration authorities). In
response to a Trump administration challenge to the laws, the 9 th Circuit Court of Appeals
upheld most parts of all three of them. (U.S. v. California (9th Cir. 2019) 921 F.3d 865, cert.
denied, U .S. v. California (2020) 141 S. Ct. 124.) And while Donald Trump’s p residency may
have inspired the Values Act, it is also true that the suffering and abuse of immigrant
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communities inflicted by ICE that motivated the Legislature to enact SB 54 began long before
the Trump administration and still persists today.
The recent rise in violence directed at the Asian Pacific Islander (API) Community is the latest
development in a long history of bias and violence against marginalized communities, including
by abuse of the immigration system. While the media and the public have focused on the recent
rise of traumatic and horrendous interpersonal acts of violence against Asian and Pacific Islander
American community members, it is also important to also recognize the less discussed large -
scale and multi-generational impact of systemic violence against API communities. At such a
time, California would be remiss to not reflect on and address its role in the criminalization,
family separation, and perpetual punishment of API refugee communities. Southeast Asian
refugees have been especially impacted by mass incarceration, ICE transfers, and deportation.
U.S. involvement in the Vietnam War and U.S.-led carpet bombing in Southeast Asia caused
mass migration of refugees from Laos, Cambodia, and Vietnam to California. Southeast Asian
refugees who resettled in California were generally housed in poor, hyper-criminalized, and
under-resourced neighborhoods with little to no culturally competent support services. Southeast
Asian refugee children – like other immigrants -- faced intense bullying. At the same time, all of
these youth as well as those who were Black, indigenous, and people of color (BIPOC) struggled
to survive the 1990s — a decade marked by a proliferation of local and national “tough on
crime” policies, including mandatory minimum sentences, the “war on drugs” and sentencing
children as adults in criminal proceedings.
In 1996, U.S. Congress passed an immigration bill that severely limited immigration relief for
non-U.S. citizens with criminal convictions — including refugees and green card holders. By the
time Southeast Asian refugee children, whose families survived famine and genocide, were
teenagers, the school to prison to deportation pipeline was in full effect.
The perfect storm of draconian criminal justice and immigration laws resulted in not only the
mass incarceration of the immigrant and BIPOC communities, but also the mass deportation of
Central American, South American, and Southeast Asian refugees. Today, Southeast Asian
refugees are at least three times more likely to be deported for past convictions than other
immigrant communities are. In 2018, at least 16,000 of the 2.7 million Southeast Asians in the
United States had received final deportation orders, more than 13,000 of which were based on
past criminal records (Transactional Records Access Clearinghouse, “U.S. Deportation
Outcomes by Charge, Completed Cases in Immigration Courts”, available at
http://trac.syr.edu/phptools/immigration/court_backlog/deport_outcome_charge.php ). This
means that 80% of the total Southeast Asian deportation orders were linked to old criminal
records, compared to 29% of all immigrants with deportation orders. (Ibid) Between 2017 and
2018, there was a 279% spike in deportations of Cambodian refugees and a 58% increase in the
deportations of Vietnamese refugees (Ibid).
This targeting of the Southeast Asian refugee community has continued under the Biden
administr ation. On March 15, 2021, the same week as the horrific Atlanta mass shooting that
targeted Asian women and during President Biden’s moratorium on deportations, 33 Vietnamese
refugee community members were tragically deported. Among those deported were individuals
who fought alongside U.S. troops during the Vietnam War.
According to a report released just last week by the International Rescue Committee, the United
States is on track to accept the fewest refugees this year of any modern president, including
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Trump. The Biden administration has admitted only 2,050 refugees at the halfway point of this
fiscal year, according to the humanitarian nonprofit organization, despite President Biden’s
promises to reverse Trump-era immigration policies, dramatically raise the cap on refugee
settlements and respond to what his officials have called “unforeseen and urgent situations,” the
IRC report noted. (Rescue,org, “More of the same: Biden to admit fewer refugees than any
president in U.S. history,” (April 11, 2021), available at https://www.rescue.org/report/more-
same-biden-admit-fewer-refugees-any-president-us -history?edme=true.)
This bill seeks to further expand and strengthen existing state laws that limit state involvement
in immigration enforcement matters -- an appropriate exercise of state sovereignty. It is a
fundamental principle of federalism that state governments —as partners with the federal
government in the system of “dual sovereignty” created by the U.S. Constitution in order to
“reduce the risk of tyranny and abuse” (Gregory v. Ashcroft (1991) 501 U.S. 452, 457-58) —
may allocate their public resources as they see fit. As a result, states are allowed to prioritize the
use of such resources on activities they believe serve the greatest need and further the most
pressing interests of the state and its residents. (Ibid.) The federal government cannot force states
to further its priorities in place of the state’s. In fact, case law makes it clear that the federal
government can do neither of the following: (1) "commandeer" local officials by making them
enforce federal laws (Printz v. U.S. (1997) 521 U.S. 898); or (2) force participation in a federal
program by threatening to cut off federal funds, unless the funds are direct ly earmarked for that
program. (NFIB v. Sibelius (2012) 132 S. Ct. 2566 [federal government cannot cut off all
Medicaid funding for refusal to participate in Medicaid expansion under the Affordable Care
Act].) This bill seeks to limit the use of state resources to assist federal immigration authorities
and activities, which is clearly an appropriate exercise of the state’s sovereignty.
Although the bill seeks to expand and strengthen the Values Act, it does not do so by amending
(or even explicitly repealing) the Values Act. Instead, it creates a new parallel statute that enacts
more extensive restrictions on state and local agencies ass isting with federal immigration
enforcement efforts and provides that these new restrictions apply “notwithstanding any contrary
provisions in [the Values Act].” By failing to amend the Values Act, the bill arguably creates
confusion about whether and to what extent the Values Act remains in effect. To the extent that
this bill were to be enacted and thereby created a conflict with the Values Act, this bill should
control given that it would be take precedence because a later-enacted statute enacted controls
over an earlier-enacted one. (Cross v. Superior Court (2017) 11 Cal.App.5th 305, 322.)
Although this bill clearly would supersede the Values Act in the case of a direct conflict with
that law, it is less clear how the two laws would interact in cases where they overlapped, but did
not directly conflict. For example, as mentioned in the Assembly Public Safety Committee’s
analysis of this bill, the Values Act requires the Attorney General to develop model policies for
law enforcement agencies to limit their assistance with immigration enforcement to the fullest
extent possible (consistent with federal and state law), including at public schools, public
libraries, health facilities operated by the state, courthouses, division of Labor Standards
Enforcement facilities, the Agricultural Labor Relations Board, the Division of Workers
Compensation, and shelters. Under the Values Act, certain agencies were required to adopt those
policies, and the other entities were encouraged to adopt them. But none of those policies would
be consistent with this bill (and likely would, if fact, conflict with it). Furthermore, local public
agencies would not be governed by the policie s, while law enforcement agencies in the same
jurisdiction would be. If this bill were to become law, would local law enforcement agencies be
following different policies than other local government agencies? Should those outdated model
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policies remain in effect, be repealed, or updated by the AG? Should the AG be required to
develop updated model policies for all government agencies in light of this bill? The bill is silent
on those questions.
Potential State Constitutional Concerns Regarding the Reenactment Clause? The fact that this
bill does not amend or repeal the Values Act and instead seeks to enact a parallel, more
restrictive statute governing non-cooperation by state and local public agencies also may raise
state constitutional concerns. Article IV of the California Constitution provides that, “A section
of a statute may not be amended unless the section is re -enacted as amended.” (California Const.,
Art. IV, Section 9.) Under this provision of the State Constitution, the Legislature is required to
reenact a code section whenever passing legislation to amend that particular section. One basic
purpose of reenacting a statute that is being amended “is to make sure legislators are not
operating in the blind when they amend legislation, and to make sure the public can become
apprised of changes in the law.” (The Gillette Company, et. al., v. Franchise Tax Board (2015)
62 Cal.4th 468,483.)
However, the reenactment rule does not apply to statutes that act to “amend” others only by
implication. (The Gillett e Company, et. al., v. Franchise Tax Board, supra, at 483.) In Gillette,
the California Supreme Court pointed out that strict enforcement of the reenactment clause is
impractical, if nothing else. In that case, it grappled with the question of whether by enacting an
alternative tax apportionment formula in Revenue & Tax. Code Section 25128 (a) after the
Multistate Tax Compact became binding on the state without “reenacting” the Compact in
statute, the Legislature violated the reenactment clause:
We reasoned long ago . . . To say that every statute which thus affects the operation of
another is therefore an amendment of it would introduce into the law an element of
uncertainty which no one can estimate. It is impossible for the wises t legislator to know in
advance how every statute proposed would affect the operation of existing laws. . . .
Although Taxpayers note that the legislative bill analyses of the amendment did not refer to
the Compact or the election provision expressly, reference to the Compact in section
25128(a) itself is strong evidence that the Legislature a cted with the Compact in mind. Even
without a reenactment, the legislators and the public have been reasonably notifie d of the
changes in the law. (Id. at 483-84 [internal quotations and citations omitted].)
The California Supreme Court reached a similar decision three years later when it held that
where a statutory provision is only technically reenacted as part of other cha nges made by a
voter-approved initiative, the Legislature still retains the power to amend the partially reenacted
provision through the ordinary legislative process . (County of San Diego v. Commission on State
Mandates (2018) 6 Cal.5th 196, 214.)
When technical reenactments are required under article IV, section 9 of the Constitution—yet
involve no substantive change in a given statutory provision—the Legislature in most cases
retains the power to amend the restated provision through the ordinary legislative process.
This conclusion applies unless the provision is integral to accomplishing the electorate's
goals in enacting the initiative or other indicia support the conclusion that voters reasonably
intended to limit the Legislature's ability to amend that part of the statute. (Ibid.)
Regardless of whether the bill violates the reenactment clause by altering the Values Act without
technically reenacting it, the bill’s impact on current law, including the Values Act is less clear
than it could and optimally should be.
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In order to avoid confusion and provide the Legislat ure and the public with as much clarity as
possible about how this worthy bill affect s and interact s with existing law , the author may wish
to amend the Values Act, rather than a new statutory scheme that addresses many of the same
topics covered by the Values Act, as this bill does in its current form .
Preemption Analysis - When Congress acts under its constitutional powers, it may preempt state
laws by one of the following means: (1) an express preemption provision that “withdraw[s]
specified powers from the States”; (2) field preemption that “precludes [States] from regulating
conduct in a field that Congress . . . has determined must be regulated by its exclusive
governance”; or (3) conflict preemption, which occurs when either “compliance with both
fe deral and state regulations is a physical impossibility,” or the “state law stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of Congress.” (Arizona
v. United States (2012) 567 U.S. 387, 399 [internal quotation marks omitted].)
Express Preemption: The only express provisions in federal law that limit the ability of states to
enact laws dealing with immigration appear to be 8 U.S.C. 1373 and 8 U.S.C. 1644. The
provisions are virtually identical. The only difference appears to be that Section 1644 applies to
states or local governments, and says they cannot be prohibited from sending or receiving
immigration status information to ICE; whereas, Section 1373 states that federal, state, and local
governments cannot be prohibited from sending or receiving of citizenship or imm igration status
information to or from ICE. Given that the 9th Circuit Court of Appeals only discussed Section
1373 in its evaluation of the Values Act, this analysis will focus solely on Section 1373.
Section 1373 prohibits states from enacting laws or policies that prohibit cooperation with and
response to federal requests for immigration status information:
[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 U.S.C. 1373 (a) [emphasis
added].)
While Section 1373 limit s state action to expressly prohibit one type of cooperation (i.e.
providing information about immigration status) with the federal government, it does not require
any action on the part of states. When it ruled that the Values Act did not violate Section 1373,
the 9th Circuit made two observations about state law. First, “SB 54 . . . expressly permits the
sharing of [information regarding a person’s citizenship or immigration status], and so does not
appear to conflict with [Section] 1373.” (U.S. v. California, supra, 921 F.3d at 890 [emphasis in
original].) Second, the Values Act does not expressly prohibit or in any way restrict law
enforcement authorities from sharing the particular type of information described by Section
1373. The 9th Circuit did not specify how important either aspect of state law was in its ultimate
decision, but only mentioned the first aspect of state law (that the Values Act permits the sharing
of information) in passing, and discussed the second aspect at length. Therefore, it is reasonable
to assume that the nature of the information at issue in the Values Act was by far the most
important reason for the 9th Circuit’s holding that the Values Act did not run afoul of Section
1373.
The 9th Circuit pointed out in U.S. v. California that the information which the Values Act
prohibited from being shared --“information regarding a person's release date,” and “personal
information . . . about an individual, including, but not limited to, the individual's home address
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or work address”—was not the same information addressed by Section 1373 (“information
regarding the citizenship or immigration status, lawful or unlawful, of any individual”). (U.S. v.
California, supra, 921 F.3d. at 891.) The information governed by Section 1373, on the other
hand, is “naturally understood as a reference to a person's legal classification under federal law,”
and not a reference to more general information about an individual. (Ibid.) Therefore, the court
narrowly construed the meaning of Section 1373 in relation to a state law restricting the
disclosure of personal information.
The information that this bill seeks to prohibit public agencies from sharing with immigration
officials appears to be the same informatio n that the Values Act prohibits law enforcement
agencies from sharing: information about a detainee’s release date and personal information
about the detainee. Given that the Value Act’s restrictions on disclosure of this information were
upheld, as explained above, in U.S. v. California, supra, it would appear likely that this bill’s
restrictions on information sharing would also survive an express preemption challenge because
it does not conflict with Section 1373 .
Furthermore, even if the bill did violate Section 1373 by prohibiting public agencies from
providing ICE with “information regarding the citizenship or immigration status, lawful or
unlawful, of any individual,” it could still be upheld against a preemption challenge. Several
federal district courts have ruled that Section 1373 itself is unlawful. As the 9th Circuit observed
in footnote 19 of U.S. v. California, while citing several district court decisions, “Because we
agree with the district court's conclusion, we need no t address whether [Section] 1373 is itself
unlawful, though we note that various district courts have questioned its constitutionality.”
(United States v. California, supra, at 893, fn. 19.) One of the district court cases mentioned in
footnote 19, for example, found that Section 1373 violates the anti-commandeering principles:
Section 1373 contravenes the idea that liberty is best served by the Constitution's intended
division of "authority between federal and state governments for the protection of
individuals." [Citations.] DOJ argues that Section 1373 requires states and local governments
to allow the disclosure of an immigrant's address, location information, release date, date of
birth, familial status, contact information, and any other information that would help fede ral
immigration officials perform their duties. [Citations.] To comply with that interpretation,
California and San Francisco would need to submit control of their own officials'
communications to the federal government and forego passing laws contrary to Section 1373.
They would also need to allocate their limited law enforcement resources to exchange
information with the federal government whenever requested instead of to the essential
services (like enforcing generally applicable criminal laws) they believe would most benefit
their respective communities. (City & Cty. of San Francisco v. Sessions (N.D.Cal. 2018) 349
F. Supp. 3d 924, 950-951 [upheld in part, overruled in part by (City & Cty. of San Francisco
v. Sessions (N.D.Cal. 2018) 349 F. Supp. 3d 924].)
Field Preemption: The Supreme Court and other federal courts have held that state laws seeking
to regulate immigration on the state level--as Arizona did when it passed laws that (1) created a
state-law crime for being unlawfully present in the United States; (2) created a state-law crime
for working or seeking work while not authorized to do so; and (3) authorized warrantless arrests
of aliens believed to be removable from the United States--are preempted by federal immigration
law and its objectives. (See Arizona v. United States, supra, 567 U.S. at 416.)
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This bill, unlike the Arizona law at issue in Arizona v. United States, clearly seeks to leave
federal immigration enforcement to federal officials. Far from attempting to usurp federal duties
related to immigration, the bill seeks to reinforce the federal framework that provides states with
the power to determine whether or not to use their resources to assist in federal immigration
efforts, including whether to have public employees function as immig ration officers and/or
assist immigration officers. Federal law authorizes the Secretary of Homeland Security to enter
into agreements that delegate immigration powers to local police. (8 U.S.C. Section 1357 (g).)
But nothing requires states to enter into such agreements with the federal government.
Of particular relevance to this bill, the 9th Circuit held in U.S. v. California, supra, that the 10th
Amendment to the U.S. Constitution protects California’s right to control its own state and local
resources, including state and local law enforcement resources. Specifically, the 9th Circuit
observed that the federal government cannot force California to help its immigration
enforcement efforts:
SB 54 may well frustrate the federal government's immigration enforcement efforts.
However, whatever the wisdom of the underlying policy adopted by California, that
frustration is permissible, because California has the right, pursuant to the anti
commandeering rule, to refrain from assisting with federal efforts…. In this context, the
federal government...could not require California's cooperation without runnin g afoul of the
Tenth Amendment. (U.S. v. California, supra, 921 F.3d at 890-91.)
Because states need not participate in federal immigration enforcement, and bec ause of the
explicit non-preemptive text and structure of Section 1357 (g), above, this bill merely expresses
the state’s authority to determine that its public resources should be used for purposes other than
assisting with immigration enforcement. By merely exercising this priority, the bill clearly does
not usurp federal authority by “regulating conduct in a field that Congress . . . has determined
must be regulated by its exclusive governance” in a manner that would make it vulnerable to a
field preemption challenge.
Conflict Preemption: As described above, the bill has two main prohibitions (one of which has
two subparts). One, which happens to be the latter, reads as follows :
A state or local agency or court shall not use immigration status as a factor to deny or to
recommend denial of probation or participation in any diversion, rehabilitation, mental health
program, or placement in a credit-earning program or class, or to determine custodial
classification level, to deny mandatory supervision, o r to lengthen the portion of supervision
served in custody.
All of the programs and purposes described by this language -- probation . . . diversion,
rehabilitation, mental health program, or placement in a credit -earning program or class – are
state and local programs and decisions. Decisions regarding such programs and placements, like
decisions “to determine custodial classification level, to deny mandatory supervision, or to
lengthen the portion of supervision” are purely state and local matters. Califo rnia is allowed to
prioritize the use of its resources on activities which serve the greatest need and further the most
pressing interests of the state and its residents. (See Gregory v. Ashcroft , supra, 501 U.S. at 457-
58.) Therefore, this provision does not raise any conflict preemption concerns.
The bill’s other main prohibition, however, could be more problematic, depending on how it is
interpreted. It provides as follows :
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A state or local agency shall not arrest or assist with the arrest, confinement, detention,
transfer, interrogation, or deportation of an individual for an immigration enforcement
purpose in any manner, including but not limited to, by notifying another agency or
subcontractor thereof regarding the release date and time of an individua l, releasing or
transferring an individual into the custody of another a gency or subcontractor thereof, or
disclosing personal information . . . about an individual, including, but not limited to, an
individual’s date of birth, work address, home address, or parole or probation check in date
and time to another agency or subcontractor thereof. This subdivision shall apply
notwithstanding any contrary provisions in Section 7282.5, subparagraphs (C) and (D) of
paragraph (1) of, or paragraph (4) of, subdivisio n (a) of Section 7284.6, or subdivision (b) of
7284.6.
Although this bill prohibits the same information from being shared with immigration authorities
that the Values Act prohibited from being shared with them (and the 9th Circuit ruled could be
withheld from immigration authorities under the Values Act), it differs from the Values Act in
several significant ways. First, it provides that, “This subdivision shall apply notwithstanding
any contrary provisions ” in the Values Act. This apparently means that the exceptions listed in
the Values Act that allow law enforcement agencies to provide information to immigration
authorities in specified circumstances (i.e. when law enforcement officials are cooperating with
federal immigration authorities in the apprehension of individuals who have been convicted of
serious and violent felonies, sex offenses, child molestation, and child abuse; when it is available
to the public, and when it is “in response to a notification request from immigration authorities ”)
those exceptions would not apply under the bill.
These particular limits on information sharing may not result in conflict preemption, though,
because they do not necessarily make it impossible for public officials to comply with both
federal law, or “stand[] as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress.” (Arizona v. United States, supra, 567 U.S. at 399.) While the bill’s
information sharing provision is more restrictive that the Values Act, the bill does not
specifically prohibit the disclosure of information about a person’s immigration status . Given
that the meaning of Section 1373 has been narrowly construed, the bill’s greater restriction on
the release of information likely would not violate Section 1373 or result in conflict preemption.
The second significant reason why this bill is more restrictive than the Values Act is that , unlike
the Values Act, it does not specifically and expressly permit the sharing of information regarding
a person’s citizenship or immigration status, which was at least mentioned by the 9th Circuit
when it upheld the Values Act. (See U.S. v. California, supra, 921 F.3d at 890.) Therefore, it is
conceivable (though unlikely) that the 9th Circuit could reach a different conclusion about this
bill’s limitations on information sharing than it made regarding the Values Act because of the
bill’s law of express permission.
Third, and most significant, is the fact that the bill’s language restricting the ability of state and
local agencies to assist with immigration enforcement efforts is extremely broad. The bill
provides that a public agency cannot “assist with the arrest, confinement, detention, transfer,
interrogation, or deportation of an individual for an immigration enforcement purpose in any
manner.” This logically could be interpreted to prohibit an agency from sending to ICE, or
receiving from ICE information regarding the citizenship or immigration status, lawful or
unlawful, of any individual in direct violation of Section 1373. Alternatively, this provision
could be interpreted to “stand[] as an obstacle to the accomplishment and execution of the full
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purposes and objectives of Congress.” (Arizona v. United States, supra, 567 U.S. at 399.). If so,
this provision could raise a conflict preemption concern about the bill.
Author’s amendments. In order to address the possible, but remote, concern that some aspects of
the bill could raise conflict preemption concerns, the author proposes to make two clarifying
amendments. First, the author intends to amend the bill to add the following additional intent
language, clarifying that it is the intent of the bill to be consistent with federal law:
(f) No federal statutes affirmatively require local or state governments to assist ICE with
immigration enforcement. While one federal statute specifically addresses this issue, 8
U.S.C. § 1373, it only passively restricts local and state governments from prohibiting the
sharing of only information related to immigration status or citizenship. Further, 8 U.S.C. §
1373 has been found by several federal courts to be unconstitutional. The U.S. Supreme
Court ruled that the Tenth Amendment prohibits the federal government from affirmatively
compelling a state to enact laws and policies, and also prevents the federal government from
prohibiting a state or local jurisdiction from enacting new laws or policies. See Murphy v.
Nat'l Collegiate Athletic Ass'n , 138 S. Ct. 1461, 1477 (2018). Applying this rule from the
U.S. Supreme Court, a number of federal district courts have held that 8 U.S.C. § 1373 is
unconstitutional under the Tenth Amendment of the U.S. Constitution. The 9th Circuit Court
of Appeals acknowledged this fact when it upheld the Values Act against a preemption
challenge in US v. California (9th Cir. 2019) 921 F.3d 865, cert. denied, US v. California
(2020) 141 S.Ct. 124. It is the intent of the VISION Act to be consistent with federal law.
Second, the author proposes to add a severability clause to the bill so that in the event that any
portion of the bill should be invalidated, other portions of the bill would remain in effect.
This bill imposes civil liability on public agencies and employees for viol ating its provisions.
The general rule in California is that a government entity (or an employee acting within scope of
employment) is immune from liability unless there is a statute providing otherwise. (See
Government Code Section 815.) Under the Government Claims Act, “Except as provided by
statute, . . [a] public entity is not liable for an injury, whether such injury arises out of an act or
omission of the public entity or a public employee or any other person.” (Section 815 (a).)
Therefore, sovereign immunity is the rule and governmental liability is limited to exceptions
specifically set forth by statute. (Zuniga v. Housing Auth. (1995) 41 Cal. App. 4th 82.) The
Government Claims Act itself sets out exceptions to the general rule of immunity. For example,
Section 835 provides that a government entity is liable for injury caused by the dangerous
condition on government property. Section 862, which is also within the Government Claims
Act, makes government entities liable for injuries caused by pesticide use to the same extent as a
private person. Also, as a general rule, a public entity is liable for an injury caused by an act or
omission of its employees who are acting within the scope of their employment, if the act would
have given rise to a cause of action against that employee. (Section 815.2.)
This bill would create such a statute by providing for governmental liability. Specifically, the bill
provides that in addition to any other sanctions, penalties, or remedies provided by law, a person
may bring an action for “equitable or declaratory relief” in a court of competent jurisdiction
against a state or local agency or state or local official that violates the bill’s provision. It further
provides that a state or local agency or official that violates this section is liable for actual and
general damages, and reasonable attorney’s fees, which normally would be paid by each party
and would not be subject to recovery by the prevailing party.
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As a practical matter, this provision would allow a person who is harmed by a public official
violating the bill’s prohibitions (by, for example, being taken into federal custody as a result of
their release date being provided to federal immigration officials) to bring an ac tion against the
public employee (and/or their employer) who provided the information. The plaintiff could
recover damages (such as lost income and medical expenses, for example), as well as injunctive
relief (i.e. a court order for an agency to comply with the law) and equitable relief (any relief
where normal remedies, such as damages, are inadequate). In addition to damages, the plaintiff
would also be entitled to recover their “reasonable attorney’s fees” for bringing the action against
the employee and/or agency.
ARGUMENTS IN SUPPORT : Co-sponsor Asian Americans Advancing Justice California
writes that they support the bill because it is consistent with California’s recent rethinking of
tough on crime public safety policies because those policies hurt communities and did not make
them any safer:
California’s punitive carceral system unjustly and disproportionately harms Black,
Latinx, Indigenous, and Asian and Pacific Islander American communities. In recent years . .
. the legislature and California voters have demonstrated a strong commitment to reforming
our criminal justice system and ending mass incarceration. However, the state’s role in
funneling California residents to the custody of ICE undercuts our progress towards a more
equitable society, and unfairly targets immigrants and refugees.
Indeed, despite these reforms, when California’s jails and prisons voluntarily and
unnecessarily transfer immigrant and refugee community members eligible for release from
state or local custody to ICE for immigration detention and deportation purpose s, they
subject these community members to double punishment and perpetual trauma. . . . The
VISION Act would ensure California's tax dollars will not be used to subject immigrants to
double punishment, separate immigrant families, and violate constitutional rights.
Another co-sponsor, Asian Prisoner Support Committee, emphasized the moral imperative for
California to stop all participation and assistance in federal immigration enforcement activities:
As the state with the largest immigrant community in the country, California has an ethical
and moral obligation to step up our leadership and take action to protect the rights of all
refugees and immigrants who call California home, including those eligible for release from
our local jails and state prisons. C alifornia is home to an estimated 11 million immigrants—
about a quarter of the immigrant population nationwide. Almost one in three Californians is
an immigrant; and one in two children in California has at least one immigrant parent. . . .
If we fail to end the cruel practice of ICE transfers, California will continue to actively
participate in the separation of immigrant and refugee families, and inflict irreparable harm to
those who came here fleeing war and genocide or to simply build a better life for themselves
and their children.
ARGUMENTS IN OPPOSITION : The California Police Chiefs Association writes that it
opposes the bill because it will prohibit law enforcement agencies from working on task forces
with “our federal law enforcement partners.”
These multi-jurisdictional task forces – many formed in the wake of the 9/11 terrorist attacks
– are incredibly important in undermining major international criminal cartels on ongoing
terrorist threats. Oftentimes, although not solely done for immigration pur poses, civil
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immigration violations are used to help bring the major criminal operations to justice.
Existing law, which we helped negotiate and was agreed to by all sides, allows for these
operations so long as 1) the primary purpose of the task force is not immigration
enforcement, 2) the investigative duties are primarily related to crimes unrelated to
immigration enforcement, and 3) participation in the task force does not violate state or local
laws. . . . SB 937 undercuts these very deliberately crafted statutes and does so to the
detriment of public safety.
Similarly, Peace Officers Research Association of California (PORAC) writes that it “cannot
support a State bill that forces our States public safety officers to stand by while our federal
counterparts are injured or killed in the performance of their duties.” PORAC goes on to say that,
“if the federal government requires our involvement, such as temporarily housing an
undocumented arrestee, then it is our responsibility to adhere to the needs of the federal
government.”
The California State Sheriffs Association, on the other hand, takes particular issue with the bill’s
elimination of “the requirement that an offender’s place of birth be included in basic information
stored in state or local criminal offender record information systems [because it] will make that
information less accurate and less useful to the stakeholders that rely upon that information,
irrespective of whether the person is subject to any immigration enforcement action.”
Related Prior Legislation: AB 2596 (Bonta), of the 2019-2020 Legislative Session, would have
eliminated the existing ability for law enforcement agencies to cooperate with federal
immigration authorities by giving them notification of release for inmates or fac ilitating inmate
transfers. AB 2596 was never heard in the Assembly Public Safety Committee.
AB 2948 (Allen), of the 2017-2018 Legislative Session, would have repealed the California
Values Act SB 54, which defines the circumstances under which law enforcement agencies may
assist in the enforcement of federal immigration laws and participate in joint law enforcement
task forces. AB 2948 failed passage in the Assembly Public Safety Committee.
AB 2931 (Patterson), of the 2017-2018 Legislative Session, would have expanded the list of
qualifying criminal convictions which permit law enforcement to cooperate with fe deral
immigration authorities. AB 2931 failed passage in the Assembly Public Safety Committee.
AB 298 (Gallagher), of the 2017-2018 Legislative Session, would have repealed the TRUST Act
and required 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
became eligible for release from custody. AB 298 failed passage in the Assembly Public Safety
Committee.
AB 1252 (Allen), of the 2017-2018 Legislative Session, would have repealed the TRUST Act
and prohibited state grants to county and local “sanctuary jurisdictions.” AB 1252 failed passage
in the Assembly Public Safety Committee.
SB 54 (De Leon), Chapter 495, Statutes of 2017, limited the involvement of state and local law
enforcement agencies in federal immigration enforcement.
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AB 2792 (Bonta), Chapter 768, Statutes of 2016, requires local law enforcement agencies to
provide copies of specified documentation received from ICE to the individual in custody and to
notify the individual regarding the intent of the agency to comply with ICE requests.
REGISTERED SUPPORT / OPPOSITION :
Support
67 Sueños
Aapis for Civic Empowerment Education Fund
Alianza
Alliance of Californians for Community Empowerment Action
Alliance San Diego
Anti-recidivism Coalition
Asian Americans Advancing Justice - California
Asian Prisoner Support Committee
Asian Solidarity Collective
Bend the Arc California
Buen Vecino
Buena Vista United Methodist Church Immigration Committee
California Attorneys for Criminal Justice
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Immigrant Policy Center
California United for A Responsible Budget
Californiahealth+ Advocates
Californians for Safety and Justice
Center for Empowering Refugees and Immigrants
Central Coast Alliance United for A Sustainable Economy
Centro Legal De LA Raza
Church World Service
City of Oakland, Council President Nikki Fortunato Bas / District 2
Clergy and Laity United for Economic Justice
Coalition for Humane Immigrant Rights (CHIRLA)
Communities United for Restorative Youth Justice (CURYJ)
Community Justice Exchange
Community Legal Services in East Palo Alto
Community United Against Violence
Contra Costa Immigrant Rights Alliance
County of San Diego
Courage California
Critical Resistance
Desert Support for Asylum Seekers
East Yard Communities for Environmental Justice
Ella Baker Center for Human Rights
Empowering Pacific Islander Communities
Equal Rights Advocates
Essie Justice Group
Eviction Defense Collaborative Union
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Filipino Migrant Center
Freedom for Immigrants
Friends Committee on Legislation of California
Hope for All: Helping Others Prosper Economically
Human Impact Partners
Human Rights Watch
Ice Out of Marin
Immigrant Defenders Law Center
Immigrant Defense Advocates
Immigrant Legal Resource Center
Indivisible Sausalito
Initiate Justice
Inland Coalition for Immigrant Justice
Interfaith Movement for Human Integrity
Irvine United Congregational Church -- Advocates for Peace and Justice
Kehilla Community Synagogue
Khmer Girls in Action
Lakeshore Avenue Baptist Church
Legal Services for Prisoners With Children
Lo ng Beach Immigrant Rights Coalition
Long Beach Southeast Asian Anti-deportation Collective
Mixteco Indigena Community Organizing Project
Naral Pro-choice California
National Day Laborer Organizing Network
Network in Solidarity With the People of Guatemala
New Bridges Presbyterian Church
Nikkei Progressives
No New Sf Jail Coalition
Norcal Resist
Oakland Privacy
Oc Emergency Response Coalition
Or Shalom Jewish Community
Orange County Equality Coalition
Orange County Rapid Response Network
Pangea Legal Services
Pico California
Pillars of The Community
Pride in Truth
Re:store Justice
San Diego Immigrant Rights Consortium
San Francisco District Attorney's Office
San Francisco Peninsula People Power
San Francisco Public Defender
San Francisco Youth Commission
Santa Barbara County Action Network
Secure Justice
Showing Up for Racial Justice (SURJ) Bay Area
Showing Up for Racial Justice (SURJ) San Diego
Showing Up for Racial Justice North County
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Southeast Asia Resource Action Center
Surj Contra Costa County
Surj San Mateo
Survived and Punished
Team Justice
The Orange County Justice Fund
The Transformative In-prison Workgroup
Think Dignity
Transitions Clinic Network
UC Berkeley's Underground Scholars Initiative
Uncommon Law
Underground Scholars Initiative, University of California Davis
Unitarian Universalist Fellowship of Redwood City, Social Action Committee
Ventura County Clergy and Laity United for Economic Justice
Viet Rainbow of Orange County
Vietrise
We the People - San Diego
Woman INC
Women for American Values and Ethics Action Fund
Women For: Orange County
Yalla Indivisible
Young Women's Freedom Center
Youth Justice Coalition
Opposition
California Police Chiefs Association
California State Sheriffs' Association
Peace Officers Research Association of California
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334