California Passes Immigration-Related Legislation

On Saturday, October 5, California Governor Jerry Brown signed into law multiple pieces of legislation affecting immigration in California.

TRUST ACT (ASSEMBLY BILL 4 – AB4)

With the passage of the Trust Act, California paves the way in the nation as the first state to shift the burden of immigration detainers back to the federal government.  This may be the signal of the end of immigration detainers indiscriminately imposed state-wide in the state.

In his blog, Jesse Lloyd, Partner at Bean + Lloyd, LLP, describes how immigration detainers work:

When someone is arrested, law enforcement will generally communicate with other state and federal agencies about the detainee. This allows law enforcement to determine the arrestee’s identity and criminal history, as well as providing updated information for other agencies. …

During these checks, the inmate’s information is sent to ICE. When ICE determines that someone in criminal custody may be a foreign national who is subject to removal proceedings, it will often send the law enforcement agency a “detainer”. A “detainer” is a request for the law enforcement agency to hold the inmate for an additional 48 hours (excluding weekends and holidays), so that ICE can apprehend them. From there, the inmate may be placed in ICE detention and removal proceedings.

According to the text of enrolled bill, the Trust Act would:

prohibit a law enforcement official [ ] from detaining an individual on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from custody, unless, at the time that the individual becomes eligible for release from custody, certain conditions are met, including, among other things, that the individual has been convicted of specified crimes.

The legislation proposes a long list of criminal convictions in which the local law enforcement agents would have discretion to cooperate with federal immigration officials in imposing an immigration detainer.

One of the biggest factors in the passage of the Trust Act involved the unintended consequences the fear of deportation has on immigrant communities, as it works as a disincentive for immigrants who are victims of or witnesses to crimes from coming forward and cooperating with local law enforcement.

Particularly when many local communities are faced with budget cuts, local governments are taking a closer look at which functions are costing taxpayers.  Mr. Lloyd explains that although “ICE asks agencies to hold inmates for additional days, [the federal government] do[es] not reimburse the local governments for the increased expense.”

Mr. Lloyd cautions that the passage of the Trust Act doesn’t end ICE’s ability to detain individuals, it just makes ICE’s ability to detain individuals a procedurally more challenging because ICE will have to find and detain individuals after those individuals have been released by local law enforcement agencies.

ASSEMBLY BILL 1159 – AB1159

In early August, we wrote about the introduction of a California bill targeting immigration practitioners here.  Initially, the bill, as introduced, contained many provisions that rankled many immigration attorneys.

Over the course of the summer months, the text of the bill evolved, with many provisions imposing onerous conditions on attorneys have been either improved or removed, thanks to the many California Chapters of the American Immigration Lawyers Association and allied organizations throughout the country who voiced their concerns.

The final, enrolled text of AB1159, accessible here, carves out many provisions, which become effective if a comprehensive immigration reform bill is enacted.  Specifically, Article 16, Section 6240-6243, describes the provisions that apply to attorneys providing immigration reform services, which include providing clients with written contracts in the client’s native tongue.  The final enrolled bill imposes stricter requirements for “immigration consultants” rather than unfairly targeting immigration attorneys in California.