Assembly Bill 4, the Trust Act, took effect in California on January 1, 2014. The law represents a substantial change in how California law enforcement agencies must respond to a request by Immigration and Customs Enforcement (ICE) to hold a person suspected of being removable for an immigration violation.
In the past few years, ICE has initiated record numbers of removal cases against noncitizens--to the point where the immigration courts cannot keep up. It has done this by using the new Secure Communities program (S-Comm) to flag persons detained even briefly in a city or county jail and to request that they be held so that ICE can initiate an immigration enforcement action. With few exceptions, local law enforcement has complied with these so-called immigration holds--even when the person detained is not actually charged with a criminal offense or the criminal offense is relatively minor. That should change in California with the enactment of the Trust Act.
Under the Trust Act, law enforcement officials cannot comply with a request for an immigration hold unless the subject meets certain criteria. Further, even if a subject meets those criteria, the law enforcement official has discretion as to whether to comply with the hold.
A law enforcement official would be permitted to comply with an immigration hold if the subject meets any of the criteria found at section 7282.5 of the Government Code, which include:
- The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code.
- The individual has been convicted of any felony punishable by imprisonment in the state prison (not a PC 1170(h) offense).
- The individual has been convicted of an offense specified under the Trust Act. This includes certain felonies and certain misdemeanor wobblers (i.e., offenses punishable as either a misdemeanor or felony). For misdemeanor wobblers, the conviction must have occurred within the last 5 years. The list of specified offenses includes most crimes involving violence, sexual abuse, child abuse, burglary, theft, and weapons, as well as gang-related offenses, registerable sex offenses, and offenses involving personal use of a firearm, death, or great bodily injury, and certain others. Notably, DUIs and controlled substance offenses must be felonies to permit a hold.
- The individual is a current registrant on the California Sex and Arson Registry.
- A magistrate has found probable cause pursuant to PC 872 for a serious or violent felony, a felony punishable by imprisonment in the state prison, or a felony that is wobbler on the above list (excluding domestic violence).
- The individual has a federal conviction that meets the definition of an aggravated felony in subparagraphs (A) through (P) of 8 U.S.C. 1101(a)(43), which for unknown reasons omits subparagraphs (Q) through (U) (failure to appear for a felony, bribery, counterfeiting, forgery, obstruction of justice, perjury, and attempt and conspiracy convictions).
- The individual is the subject of an outstanding federal felony arrest warrant (most current immigration holds are for alleged civil immigration violations, not warrants for felony criminal charges).
Although this list is much longer than the previously-introduced version of the Trust Act, the important thing to note is that it requires an actual conviction or, for certain felonies, a finding of probable cause. This remedies two of the biggest problems that previously existed: (1) undocumented persons being ineligible for bail while they contest the charges, and (2) transfer to ICE even if the prosecutor declines to file charges or the noncitizen prevails in the criminal proceedings.