California sanctuary law, SB 54, violates civil and criminal immigration provisions.

10/08/2017 10:31 pm ET
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On October 5, 2017, California Governor Edmund G. Brown, Jr., approved Senate Bill 54 (SB 54), the California Values Act.

In a letter to the California State Senate, he says this bill will protect public safety and bring a measure of comfort to families who are now living in fear every day.

I share the governor’s desire to help the families of undocumented aliens, but this is not the way to do it.

SB 54’s rejection of immigration detainer requests is appropriate, but the rest of the bill does little more than make it easier for undocumented immigrants to remain in the United States illegally, and it does it in ways that are prohibited by civil and criminal federal immigration laws.

My point is that the State of California shouldn’t be doing things that are prohibited by federal law or that would be a felony if done by an individual. I am not suggesting that there will or should be an attempt to prosecute Brown or any other California official for the criminal offense.

  • SB 54 repeals existing law which requires the police to notify ICE when there is reason to believe that a person arrested for a controlled substance violation may be an alien;
  • Prohibits law enforcement agencies from using their resources to investigate, detain, or arrest persons for immigration enforcement purposes;
  • Directs the California Attorney General to publish model policies and guidance on limiting assistance and the availability of information for immigration enforcement purposes; and designated entities, such as state and local police, will be required to follow them; and
  • Requires the Board of Parole Hearings and the Department of Corrections and Rehabilitation to obtain written consent from aliens before permitting ICE to interview them regarding civil immigration violations.

ICE Immigration Detainers.

ICE Immigration detainers ask a state or local law enforcement agency that is detaining a removable alien to maintain custody of him for up to 48 hours beyond the time he would otherwise be released from custody to give ICE time to pick him up.

ICE has authority to detain someone on probable cause to believe that the person is a deportable immigrant, but state and local police only have authority to detain someone on probable cause to believe that the person has committed a crime.

If state or local police want to hold an alien beyond his release date, they have to make a new probable cause determination or the new detention period will violate the alien’s constitutional rights under the Fourth Amendment. The justification for the original detention no longer applies, and they cannot start a new detention period on the basis of the detainer. It only relates to probable cause that the alien is deportable.

Civil Offense - Prohibiting Information sharing.

Congress sought to end immigration related information-sharing restrictions with a provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

The provision, 8 U.S.C. 1373, does not require state or local government agencies to share immigration-related information with federal immigration authorities. It provides that no person or agency may prohibit a state or local government entity from sharing immigration-related information with ICE, and the sharing of immigration-related information is restricted by SB 54.

Criminal Offense - Harboring.

The harboring provision, 8 U.S.C. §1324(a)(1)(A)(iii), imposes criminal sanctions for concealing, harboring, or shielding an alien from detection knowing, or in reckless disregard of the fact that, he is in the United States in violation of law.

Punishments range from a fine and incarceration for up to 20 years to imprisonment for life or a death sentence if the offense resulted in the death of any person.

It has been left to the courts to decide what “harboring” is, and the courts have not settled on one uniform definition. The most frequent characteristic the courts have used to describe it is that it facilitates an immigrant’s remaining in the United States illegally, and this seems to be the primary reason for most of SB 54’s provisions.

SB 54 is not the only California law that facilitates an immigrant’s remaining here illegally. For example, Assembly Bill 60 authorizes drivers’ licenses for undocumented aliens who can prove identity and California residency and meet the rest of the requirements for a license. Approximately 905,000 driver’s licenses have been issued under the provisions of this bill.

An undocumented alien can use a driver’s license to open up a checking account, as identification for various purposes such as for cashing pay checks, and so on. This makes it easier for him to live in the United States despite his illegal status.

Such sanctuary policies have brought nearly a quarter of the nation’s undocumented aliens to California. Its labor force includes approximately 1.75 million undocumented aliens. Nearly ten percent of California workers are undocumented aliens.

It would be better to help undocumented aliens by working on comprehensive immigration reform legislation that meets essential political needs of both parties.

One possibility would be a bill to establish a statutory DACA program that would select participants on the basis of a merit point system like the one being proposed by the RAISE Act.

About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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