Today's Law As Amended


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AB-937 Immigration enforcement.(2021-2022)



As Amends the Law Today


SECTION 1.
 The Legislature finds and declares all of the following:
(a) California’s punitive carceral system unjustly and disproportionately harms Black, Latinx, Indigenous, and Asian and Pacific Islander American communities. In recent years, 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.
(b) 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 Immigration and Customs Enforcement (ICE) for immigration detention and deportation purposes, they subject these community members to double punishment and further trauma. Immigrant community members can be incarcerated by ICE, often for prolonged periods and with no right to bail, and deported, permanently banishing them from the country, from their families, their homes, their livelihoods and “all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). The Supreme Court has repeatedly acknowledged that for many people deportation is a more severe penalty than any jail sentence. See, e.g., Lee v. U.S., 137 S.Ct. 1958, 1968 (2017); Padilla v. Kentucky, 559 U.S. 356, 364 (2010).
(c) Community members transferred to ICE are refugees, lawful permanent residents, people who entered the United States as children, parents, caretakers, essential workers, or are otherwise valued California residents. California should not subject these community members to a second, double punishment, and disregard their record of rehabilitation, stable reentry plans, and community support, purely because they are refugees or immigrants. Ending ICE transfers in California is a reflection of the state’s commitment to ending racial injustice and mass incarceration.
(d) Moreover, incarceration and ICE transfers are harmful to public health. Countless studies document negative health impacts of incarceration in jails, prisons, and ICE detention centers. People who have been incarcerated have worse health outcomes and, overall, have lower life expectancies. Given the racial inequities plaguing the state’s carceral system, the significant health risks posed by incarceration and transfers weigh heavily on California’s Black, Latinx, and Asian and Pacific Islander American communities.
(e) The Constitutions of the United States and the State of California protect all persons present within our borders from unreasonable searches and seizures, from deprivations of life, liberty or property without due process of law, from being deprived of equal protection under the law, including from being targeted on the basis of race or ethnicity. This act embodies and protects these values by ensuring that all Californians, including refugees and immigrants, are not torn from their communities when they are eligible for release from state or local custody simply because they are not citizens of the United States.
(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 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 Supreme Court, a number of federal district courts have held that 8 U.S.C. § 1373 is unconstitutional under the Tenth Amendment of the United States 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.
(g) 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.
(h) This act shall be known, and may be cited as, the Voiding Inequality and Seeking Inclusion for Our Immigrant Neighbors (VISION) Act.

SEC. 2.

 Chapter 17.15 (commencing with Section 7282.7) is added to Division 7 of Title 1 of the Government Code, to read:

CHAPTER  17.15. Voiding Inequality and Seeking Inclusion for Our Immigrant Neighbors Act
7282.7.
 (a) 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 defined in Section 1798.3 of the Civil Code, 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, subdivision (a) of Section 7284.6, or paragraphs (1) and (2) of subdivision (b) of 7284.6.
(b) Notwithstanding subdivision (a), if an individual was released from the Department of Corrections and Rehabilitation after they were found suitable for release on parole by the Board of Parole Hearings (BPH), and within five years of their release on parole, they are convicted of a new offense and sentenced to a base term of at least 20 years to serve in the custody of the Department of Corrections and Rehabilitation, BPH may, but is not required to, respond to a request for notification of release date from Immigration and Customs Enforcement (ICE) for that individual no more than 24 hours before their actual release date.
(1) BPH shall consider the following when deciding whether to respond to an ICE request for notification of a person’s release date:
(A) Family and community ties in the United States, including disfavoring notifying ICE if the person has family members in the United States or relationships with community-based organizations.
(B) Number of years living in the United States, including disfavoring notifying ICE if they have had residence in the United States for at least five years.
(C) Disfavoring notifying ICE if there is evidence of the individual’s rehabilitation and success for reentry.
(2) Notwithstanding this subdivision, a state or local agency shall not respond to an ICE request for notification of release date for any individual who meets any of the following criteria:
(A) The department has identified the person as a member of a vulnerable population at any time they were in department custody, including, but not limited to, individuals who have received care through the enhanced outpatient program or correctional clinical case management system, individuals placed in nondisciplinary segregation, transgender individuals, veterans, or individuals treated in hospice care or in the California Medical Facility.
(B) An individual who qualifies for the Elderly Parole Program.
(C) An individual who qualifies under Section 3051 or 1172.6 of the Penal Code.
(D) An individual who is a survivor of domestic violence or sexual assault as documented in their BPH psychological assessment, comprehensive risk assessment, or court documents.
(E) An individual who will serve as a caregiver upon their release from the department, as documented in their parole plan.
(c) Subdivisions (a) and (b) do not prohibit compliance with a criminal judicial warrant.
(d) 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, or to lengthen the portion of supervision served in custody.
(e) For the purposes of this section, all of the following definitions apply:
(1) “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.
(2) “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.
(3) “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.
(f) 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.

SEC. 3.

 Section 5025 of the Penal Code, as amended by Section 5 of Chapter 565 of the Statutes of 1994, is repealed.

5025.
 (a) On or before July 1, 1993, the Department of Corrections shall implement and maintain procedures to identify inmates serving terms in state prison who are undocumented aliens subject to deportation. This identification procedure shall be completed, as to each inmate, within 90 days of the Department of Corrections having taken custody of the inmate.
(b) The procedures implemented by the department, pursuant to subdivision (a), shall include, but not be limited to, the following criteria for determining the country of citizenship of any person serving a term in state prison:
(1) Country of citizenship.
(2) Place of birth.
(3) Inmate’s statements.
(4) Prior parole records.
(5) Prior arrest records.
(6) Probation Officer’s Report (POR).
(7) Information from the Department of Justice’s Criminal Identification and Information Unit.
(8) Other legal documents.
(c) The Department of Corrections shall report annually to the Legislature the number of persons identified as undocumented aliens pursuant to subdivision (a). The reports shall contain the number of persons referred, the race, national origin, and national ancestry of persons referred, the offense or offenses for which the person was committed to state prison, and the disposition of the referral, if known.

SEC. 4.

 Section 5025 of the Penal Code, as amended by Section 49 of Chapter 296 of the Statutes of 2021, is repealed.

5025.
 (a) Immediately upon the effective date of the amendments to this section made at the 1993–94 First Extraordinary Session of the Legislature, the Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall implement and maintain procedures to identify, within 90 days of assuming custody, inmates serving terms in state prison or wards of the Department of Youth and Community Restoration who are undocumented felons subject to deportation. The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall refer to the United States Department of Homeland Security the name and location of any inmate or ward who may be an undocumented immigrant and who may be subject to deportation for a determination of whether the inmate or ward is undocumented and subject to deportation. The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall make case files available to the United States Department of Homeland Security for purposes of investigation.
(b) The procedures implemented by the department pursuant to subdivision (a) shall include, but not be limited to, the following criteria for determining the country of citizenship of any person serving a term in the state prison:
(1) Country of citizenship.
(2) Place of birth.
(3) Inmate’s statements.
(4) Prior parole records.
(5) Prior arrest records.
(6) Probation Officer’s Report (POR).
(7) Information from the Department of Justice’s Criminal Identification and Information Unit.
(8) Other legal documents.
(c) Within 48 hours of identifying an inmate or ward as an undocumented felon pursuant to subdivision (a), the Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall cause the inmate or ward to be transferred to the custody of the United States Attorney General for appropriate action. Once an inmate or ward has been identified as an undocumented felon by the United States Immigration and Naturalization Service, the inmate or ward shall not undergo any additional evaluation or classification procedures other than those required for the safety or security of the institution, the inmate or ward, or the public.
(d) The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall report quarterly to the Legislature the number of persons referred to the United States Department of Homeland Security pursuant to subdivision (a). The report shall contain the number of persons transported, the race, national origin, and national ancestry of persons transported, the offense or offenses for which the persons were committed to state prison, and the facilities to which the persons were transported.
(e) For purposes of this section, “immigrant” means a person who is not a citizen or national of the United States.

SEC. 5.

 Section 5026 of the Penal Code is repealed.

5026.
 (a) The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall cooperate with the United States Department of Homeland Security 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 immigrants who are incarcerated in state prison.
(b) For purposes of this section, “immigrant” means a person who is not a citizen or national of the United States.

SEC. 6.

 Section 13125 of the Penal Code is amended to read:

13125.
 All basic information stored in state or local criminal offender record information systems shall be recorded, when applicable and available, in the form of the following standard data elements:
The following personal identification data:
Name—(full name)
Aliases
Monikers
Race
Sex
Date of birth
Place of birth (state or country)
Height
Weight
Hair color
Eye color
CII number
FBI number
Social security number
California operator’s license number
Fingerprint classification number
Henry
NCIC
Address
The following arrest data:
Arresting agency
Booking number
Date of arrest
Offenses charged
Statute citations
Literal descriptions
Police disposition
Released
Cited and released
Turned over to
Complaint filed
The following misdemeanor or infraction data or preliminary
hearing data:
County and court name
Date complaint filed
Original offenses charged in a complaint
or citation
Held to answer
Certified plea
Disposition
Not convicted
Dismissed
Acquitted
Court trial
Jury trial
Convicted
Plea
Court trial
Jury trial
Date of disposition
Convicted offenses
Sentence
Sentence enhancement data elements
Proceedings suspended
Reason suspended
The following superior court data:
County
Date complaint filed
Type of proceeding
Indictment
Information
Certification
Original offenses charged in indictment or
information
Disposition
Not convicted
Dismissed
Acquitted
Court trial
Jury trial
On transcript
Convicted—felony, misdemeanor
Plea
Court trial
Jury trial
On transcript
Date of disposition
Convicted offenses
Sentence
Sentence enhancement data elements
Proceedings suspended
Reason suspended
Source of reopened cases
The following corrections data:
Adult probation
County
Type of court
Court number
Offense
Date on probation
Date removed
Reason for removal
Jail (unsentenced prisoners only)
Offenses charged
Name of jail or institution
Date received
Date released
Reason for release
Bail on own recognizance
Bail
Other
Committing agency
County jail (sentenced prisoners only)
Name of jail, camp, or other
Convicted offense
Sentence
Sentence enhancement data elements
Date received
Date released
Reason for release
Committing agency
Division of Juvenile Justice
County
Type of court
Court number
Division of Juvenile Justice number
Date received
Convicted offense
Type of receipt
Original commitment
Parole violator
Date released
Type of release
Custody
Supervision
Date terminated
Department of Corrections and Rehabilitation
County
Type of court
Court number
Department of Corrections and Rehabilitation number
Date received
Convicted offense
Type of receipt
Original commitment
Parole violator
Date released
Type of release
Custody
Supervision
Date terminated
Mentally disordered sex offenders
County
Hospital number
Date received
Date discharged
Recommendation
SEC. 7.
 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.