Dec 24

Immigration Detainers Are Mere Requests, Not Commands

State Attorney General Kamala Harris recently issued a groundbreaking opinion that will positively affect how California’s jails and prisons treat individuals who are suspected of being in violation of immigration law:

What Does the Opinion Say That is Groundbreaking?

  • Immigration detainers, also known as “ICE holds”, are not mandatory commands; thus, local law enforcement agencies can make own decision on whether to fulfill the request by the Immigration and Customs Enforcement (ICE) and help transfer individuals into immigration custody;
  • Secure Communities program (explained below) does not require local law enforcement to determine an individual’s immigration status or to enforce federal immigration laws;
  • Local law enforcement agencies may establish a protocol on how to respond to a ICE holds, taking into account the local agency’s own expense.

What Is The Legal Basis For The Opinion?

The U.S. Supreme Court has held that the federal government cannot command the States’ executive power to comply with federal statutes.  (See Printz v. United States (1997), 521 US 898).  The Supreme Court referenced a similar scenario in 1789 where the First Congress enacted a law aimed at holding federal prisoners in state jails at federal expense. Here, the law was a recommendation to State legislatures and not a command.

Also, Kamala Harris noted the fact that unlike criminal warrants and detainers, immigration detainers may be issued without judicial approval or satisfying traditional evidentiary standards required under the Constitution.  (See Cal. Dept. of Justice, Opinion No. 2012-DLE-01.)

What Prompted This Advisory Opinion?

Local law enforcement agencies were confused on what to do with when they received an order from ICE to hold a individual for 48 hours after the time when person was supposed to be released from custody.  On one hand, the order appeared to be mandatory because it came from a federal agency and appeared on a form that states in bold “it is requested that you maintain custody…”  (See DHS Form I-247.)  On the other hand, jails and prisons would not be compensated by ICE for the additional expense to house immigrants, would be using beds that could be given to other criminal suspects, and helping to enforce immigration laws that their locality did not agree with.

What Is An Immigration Detainer Or “ICE Hold”?

A request by ICE to hold an immigrant in state or local custody for an additional 48 hours so that ICE can arrest the immigrant and transfer them to federal custody.

How Does ICE Know When To Issue A Hold On An Individual?

A new system called Secure Communities tells ICE when an individual suspected of violating immigration laws is in custody in a state or local jail or prison.  Once an individual is booked in a jail (fingerprints are taken), they are sent to the CalDOJ to confirm identity and run a criminal history check.  Next, CalDOJ forwards fingerprints to the FBI to check for federal and out-of-state arrest, warrant, and conviction history—an action that is essential both for officer safety and to identify and detain fugitives who may have fled other jurisdictions.  Now, under the Secure Communities program, the FBI forwards the fingerprints to the Department of Homeland Security to check immigration databases, which then notifies ICE.  (See Cal. Dept. of Justice, Opinion No. 2012-DLE-01)

Are Only Dangerous Individuals Subject To A ICE Hold?

No.  A hold can be placed on any individual who is suspected of being in violation of immigration law.  ICE will place this hold as soon as it “initiated an investigation.”  (See DHS Form I-247).  Also, where the violation relates to the pending criminal offense, the hold is placed when the individual is merely arrested versus convicted of such offense.

How Did Local Law Enforcement Agencies Respond To ICE Holds Before This Opinion?

Different depending on the agency and their county policy.  Some counties followed the ICE hold requests, viewing them as mandatory.  However, more liberal counties only honored holds against arrestees accused of serious or violent offenses and would not hold individuals charged with petty offenses.

ICE holds were not as much as an issue until the Secure Communities system came out and shared with ICE the identifying information of people being held in state and local custody.

What Does This Opinion Mean For The Future?

  • More resources available to use towards criminal suspects and convicts (versus individuals suspected of violating immigration law);
  • Local law enforcement agencies who were automatically responding to ICE holds under the impression they were mandatory commands will reconsider their action;
  • New local law enforcement policies in place related to ICE holds;
  • ICE may have to change its own policy of issuing holds, limiting them to only individuals that pose a danger to public safety, in order to earn the cooperation of local law enforcement;
  • Other State Attorney Generals will issue a similar opinion for their state and local law enforcement officials who are likewise subject to the increase in ICE holds under Secure Communities.

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Dec 24

Rihanna Calls The Police On Unwanted Visitor

The police were called today to a Barbados property where Rihanna was staying for the Christmas holiday.  An unwanted visitor was seen wandering onto her private, beach front residence.  When the police arrived, the man was gone.

If the police had arrived in time, what would this unwanted visitor be charged with under the law?

  1. Trespassing?  NO.  Although the tabloids labeled this stranger as a trespasser, and it seems to make sense as he crossed into private property, he would not be prosecuted for this offense.  Trespassing is rarely prosecuted by the District Attorney’s Office unless the attempts are repeated.  This is because the prosecution must show the trespasser intended to damage, interfere with, or obstruct the business or he occupied the private property continuously until removed.  See Penal Code sections 602(k); 602(m).
  2.  Stalking?  NO.  The District Attorney will only charge stalking if there is proof of repeated unwanted visits.  Under California law, stalking requires that the prosecutor prove harassment or repeated following.
  3. Loitering?  YES, if the stranger was found spying on Rihanna with binoculars or camera while she was in the bathroom, bedroom or other private place then he could be charged with this misdemeanor- punishable by maximum 6 months in jail or $1,000 fine.

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Jun 29

Insult to Injury

My law school runs a program called the Innocence Project, which aims to release inmates from prison who have been wrongly convicted. Among the many people that the Innocence Project has freed is a man by the name of Timothy Akins in 2007.   What most people do not realize is that the battle for innocence does not end with a trial court’s order to release an inmate.  Instead, the second battle begins: to collect state compensation.

According to the California Penal Code, a person who is wrongfully convicted and imprisoned in state prison for a felony is owed $100 for each day that he spent behind bars.  In Mr. Atikins case, no less than $713,000 for 23 years behind bars.

Unfortunately, only 18.6% of the claims for compensation are actually granted, the remainder are denied.  This is because the Victim Compensation and Government Claims Board in Sacramento does not take the trial judge’s decision at face value.  Rather, the rules governing the Board under Penal Code section 4903 require them to act like a trier of fact by scrutinizing the evidence presented to them by the Attorney General and the former inmate.

If the Board’s burden of proof was higher than the trial court’s, perhaps it would make sense to conduct new fact-finding.  However, the opposite is true: the burden of proof is lower- the evidence must show the defendant is innocent by a preponderance of evidence or it is more likely than not; whereas, the trial court must conclude that the newly discovered evidence “completely undermines the entire structure of the case presented by the prosecution” and must “point unerringly” to innocence.  (Ex Parte Lindley, 29 Cal. 2d, 709, 724 (1947).)

To avoid the intense scrutiny by the Board and the 81.4% failure rate, some counsel advise their clients to go to civil court where the odds are better and they can even win a higher amount of compensation.  For example, Mr. Goldstein who spent 24 years on prison won $8 million from the City of Long Beach.  The disadvantage, however, is that clients must target a specific defendant such as a prosecutor or officer who subverted justice and this is difficult to do.

What are your thoughts about California’s victim compensation process?

  • Should a person who has been wrongly convicted have to go through another mini-trial to prove he is entitled to compensation?
  • Or, should the Board automatically accept the trial court’s findings?
  • Better yet, should victim compensation  be run the same way that victim restitution is when a person suffers an injury as a result of a crime?  In this case, the trial court acts quasi civil by conducting what is called a restitution hearing and determines the amount that should be paid to the victim to make them whole again.

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