Provided by Martin J. Mayer of Jones & Mayer
On September 28, 2016, Governor Jerry Brown signed into law Assembly Bill (AB) 2792, known as the Transparent Review of Unjust Transfers and Holds (TRUTH) Act. The Act imposes obligations on California law enforcement if they notify the Federal Immigration and Customs Enforcement (ICE) Agency of an inmate’s upcoming date and time of release.
Current federal law authorizes ICE to issue an immigration “detainer” advising a Law Enforcement Agency (LEA) that ICE seeks custody of an alien presently held by that agency, for the purpose of arresting and deporting the alien. The detainer is a “request” that the agency advise ICE, prior to release of the alien, in order for ICE to assume custody of that person.
On January 1, 2014, the California TRUST Act became law and prohibits a law enforcement official from detaining an individual on the basis of an ICE hold after that individual becomes eligible for release from custody under state law. At the time that individual becomes eligible for release from custody he/she shall be released unless, among other things, that individual has been convicted of specified serious crimes. [In fact, we have opined that it is still illegal to hold that person without a court order and/or a warrant.]
AB 2792, requires that the local law enforcement agency must comply with several things before notifying ICE and arranging for them to interview the detainee. The LEA must provide the individual a written consent form that would explain, among other things, the purpose of the interview; that it is voluntary; and that the individual may decline to be interviewed. The TRUTH Act requires the consent form to be available in multiple, specified languages. The TRUTH Act also requires the LEA to provide copies of certain documents, received from ICE, to the detainee and to notify the detainee of the intent of the agency to comply with ICE requests.
The TRUTH Act also requires that the records related to ICE access be considered public records for purposes of the California Public Records Act.
Furthermore, beginning on January 1, 2018, the TRUTH Act requires the local governing body of any county, city, or city and county in which a local law enforcement agency has provided ICE access to an individual during the previous year, to hold at least one public community forum during the following year, to provide information to the public about ICE’s access to individuals and to receive and consider public comment.
As stated in the legislation, “the local law enforcement agency may provide the governing body with data it maintains regarding the number and demographic characteristics of individuals to whom the agency has provided ICE access, the date ICE access was provided, and whether the ICE access was provided through a hold, transfer, or notification request or through other means.”
These requirements on local government impose a state-mandated program which, normally, requires reimbursement by the state. However, the legislation states that “(n)o reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution . . . .”
HOW THIS AFFECTS YOUR AGENCY
The TRUTH Act applies to any “agency of a city, county, city and county, special district, or other political subdivision of the state that is authorized to enforce criminal statutes, regulations, or local ordinances; or to operate jails or to maintain custody of individuals in jails; or to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities; or to monitor compliance with probation or parole conditions.”
“Local law enforcement agency means any agency of a city, county, city and county, special district, or other political subdivision of the state that is authorized to enforce criminal statutes, regulations, or local ordinances; or to operate jails or to maintain custody of individuals in jails; or to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities; or to monitor compliance with probation or parole conditions.”
As used in the TRUTH Act, “ICE access means, for the purposes of civil immigration enforcement, including when an individual is stopped with or without their consent, arrested, detained, or otherwise under the control of the local law enforcement agency, all of the following: (1) Responding to an ICE hold, notification, or transfer request; (2) Providing notification to ICE in advance of the public that an individual is being or will be released at a certain date and time through data sharing or otherwise; (3) Providing ICE non-publicly available information regarding release dates, home addresses, or work addresses, whether through computer databases, jail logs, or otherwise; (4) Allowing ICE to interview an individual; and (5) Providing ICE information regarding dates and times of probation or parole check-ins.”
As such, it applies to all Sheriffs, and to those other law enforcement agencies detaining persons for any extended period of time if they receive “hold” requests from ICE. Whether or not this applies to any particular agency should be determined as soon as possible since these requirements need to be implemented immediately.
As with all legal issues, it is imperative that each agency seek out the advice and guidance of their designated legal advisor before implementing any new law. However, as always, if you wish to discuss this matter in greater detail, feel free to contact me at (714) 446 – 1400 or via email at email@example.com.
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