Last week, the California Sheriffs’ Association came out in opposition to the California Legislature’s recent passage of anti-detainer bill, AB 1081. If signed into law, AB 1081 would prohibit state and local law enforcement agents from honoring U.S. Immigration and Customs Enforcement (ICE) detainers unless an alien has been convicted of or is in custody for a serious or violent felony. (See AB 1081 at §2; see also FAIR Legislative Update , Aug. 27, 2012) “We are forcefully pushing for a veto,” said Nick Warner, legislative director for the California State Sheriffs’ Association. “The sheriffs of this state are actively, unalterably and vehemently opposed.” ( New York Times , Aug. 28, 2012)
Several prominent California sheriffs have independently spoken out against the legislation, asserting that if it is signed into law they would be given the false choice between violating federal or state law. “It would make me break either federal or state law. I would have to pick which one to break,” Sonoma County Sheriff Steve Freitas lamented of the newly passed legislation. ( Los Angeles Times , Aug. 25, 2012) Los Angeles County Sheriff, Lee Baca, said his office would uphold federal law if the bill is signed. “Our stance is that federal law trumps state law. If it were to move forward, we’d adhere to federal law, so we’d still honor ICE holds,” said his spokesman. (Id.) Marin County Sheriff Robert T. Doyle agreed, saying his “gut reaction would be to ignore” the anti-detainer act, saying “if someone comes to the county jail and he is not here lawfully, I think he should be turned over to [ICE].” ( New York Times , Aug. 28, 2012)
Under federal regulation, once ICE issues a detainer for an alien in state or local custody, jail officials must hold the alien for up to 48 hours (excluding weekends and holidays) to allow ICE agents to pick them up. ( See 8 C.F.R. 287.7(d))
Not only does the bill contradict federal law, local governments risk losing federal State Criminal Alien Assistance Program (SCAAP) reimbursements if they do not detain aliens for ICE. In a letter to FAIR’s Executive Director, ICE Director John Morton warned that jurisdictions with anti-detainer laws on the books — such as Cook County, Illinois and Santa Clara, California — may be denied “reimbursement to the state for costs of incarcerating criminal aliens under SCAAP.” (Read the letter here ) Moreover, Director Morton noted that it is “fundamentally inconsistent” for jurisdictions that are “thwarting ICE’s efforts to remove” criminal aliens to seek SCAAP reimbursements.
The State of California is the largest recipient of SCAAP reimbursements in the country. In Fiscal Year 2011, it received $96 million from the federal government to offset the costs of incarcerating criminal aliens. (See California State Association of Counties Fact Sheet , Feb. 27, 2012)
The California Assembly passed AB 1081 August 24, sending the bill to Governor Jerry Brown to sign into law. Unless the Governor vetoes the legislation, it will become law after 30 days. (See Cal. Const. Art. IV Sec. 10 )