A trio of California immigration bills has spurred action from the United State Department of Justice.
AB 103, AB 450, and SB 54 are the subject of legal action from the U.S. DOJ; each bill allegedly interferes with and obstructs the enforcement of federal immigration law, according to Attorney General Jeff Sessions and the DOJ.
The trio of immigration bills reflect protections for members of the immigrant community. The federal government has alleged that these bills obstruct the enforcement of federal immigration law whether it be through voluntary cooperation with federal officials from private employers, restriction of local and state law enforcement from communicating with Immigration Customs and Enforcement agents, or the regulation of federal immigration detention, in regard to state-run inspections and reviews of the federal detention of aliens held in facilities pursuant to federal contracts.
AB 450
AB 450 is known as the Immigrant Worker Protection Act and was approved by the Governor in Oct. 2017. The bill sets up prohibitions and requirements for public and private employers for worksite inspections by immigration authorities.
Under the bill, public and private employers generally cannot provide voluntary consent that allows immigration authorities to enter a non-public area of a worksite or access to employee records. The provision does not apply if a warrant is provided.
Voluntary consent in this area described by the California Department of Industrial Relations, which issued a guidance sheet on the bill, as “freely asking or inviting an immigration enforcement agent to enter” a non-public area.
Similar restrictions are placed on employers voluntarily allowing immigration authorities to access, review, or obtain employee records without a warrant. Forms like the I-9 Employment Eligibility Verification, which verifies identity and employment authorization in the United States, and other documents are not held to this provision when a Notice of Inspection has been provided to the employer.
For this provision of the law, the California Department of Industrial Relations describes an example of voluntary consent as “freely stating to an immigration enforcement agent that the agent may look at employee records, freely telling the agent where to find employee records, or freely turning on a computer or opening a file cabinet (in which employee records are kept) for the agent.”
Additionally, the bill does not allow employers to reverify the employment eligibility of a current employee at a time or manner not required by United States Code, which generally requires verification at the time of hire. According to the California Department of Justice, the provision does not restrict or limit an employer’s compliance with the use of federal E-Verify system.
The bill also requires certain actions from employers, most of which revolve around conveying and communicating information to the “affected employee.” An affected employee, according to the law, is an employee identified by immigration agency inspection results to potentially be lacking work authorization or whose authorization documents have been determined to have deficiencies.
Employers must inform employees of record inspections by immigration authorities within 72 hours of receiving notice of the inspection. This includes inspection of I-9 forms or other employment records.
Communication must include the name of the immigration agency conducting the inspection, the date that the employer received notice of the inspection, the nature of the inspection (to the extent known), and a copy of the Notice of Inspection of I-9 forms.
Employers must also provide the affected employee a copy of the inspection results and written notice of the employer’s and employee’s obligations that come from the results of the inspection. This notice must be given within 72 hours of receiving the notice of inspection results.
Notices should be hand delivered at the workplace, if possible, and it needs to include a description of all deficiencies or other items revealed in the inspection results, the time period for correcting any potential deficiencies identified, time and date of any meeting with the employer to correct the deficiencies, and notice that the employee has the right to representation during any meeting scheduled with the employer.
Violations of the law may translate to civil penalties from the California Attorney General and/or the State Labor Commission. Violations incur penalties of $2,000 to $5,000 for the first violation and $5,000 to $10,000 for subsequent violations. If the employment eligibility re-verification provision is violated, the employer is subject to a penalty of $10,000.
Penalties do not apply if courts find that immigration authority was permitted to access, review, or obtain employment without the consent of the employer. According to the California Department of Industrial Relations, the law does not require an employer to physically block or physically interfere with an immigration enforcement agent to show that consent was not provided.
AB 103
AB 103 sees the California Attorney General involved with a level of oversight for California immigration detention facilities. The bill also stymies the ability for agencies to enter into new contracts between California agencies and the federal government for immigration detention facilities. The bill impacts contracts for immigration detention facilities holding adults and children.
Under the bill, agencies that have not entered into a contract with a federal agency to house and detain adult noncitizens in a detention facility for civil immigration custody on or before June 15, 2017, will not be allowed to enter into an agreement. The same applies to unaccompanied and accompanied minors in the custody of the federal Office of Refugee Resettlement and ICE.
In a similar stroke, agencies that had an existing contract on or before June 15, 2017, are not allowed to renew or modify the contract in a way that expands the number of contracted beds in the detention facility. The same provision was applied to minors and adult noncitizens.
AB 103 also requires that the Attorney General, or designee of the AG, review detention facilities where noncitizens are housed or detained for civil immigration proceedings. This includes county, local, or private locked detention facilities. The process continues until July 1, 2027.
Updates and a summary of findings would be provided by the DOJ to the Legislature and Governor during the budget process.
The Attorney General must also conduct a review of the detention facilities on or before Mar. 1, 2019, which would include the conditions of confinement, the standard of care and due process, and the circumstances around their apprehension and transfer to the facility.
The report will be provided to the Governor and Legislature, be posted on the Attorney General’s website, and made available to the public.
With this responsibility, the Attorney General will have all necessary access to make his observations, including, but not limited to, access to detainees, officials, personnel, and records.
SB 54
SB 54 is known as the California Values Act or by its moniker as the Sanctuary State bill. This is the bill that impacts law enforcement and, according to the United States Department of Justice, allegedly interferes with the ability of federal immigration authorities to carry out their jobs.
State and local law enforcement are not allowed to investigate, interrogate, detain, detect, or arrest people for immigration enforcement purposes. No agency money or personnel can be used for these purposes.
This would include but is not limited to, inquiring into an individual’s immigration status, detaining an individual based on a hold request, providing information regarding a person’s release date, or transferring an individual to immigration authorities unless allowed by a warrant. Law enforcement from these agencies is also prevented from participating in arrests based on civil immigration warrants and performing the functions of an immigration officer.
Regarding cooperation, law enforcement would still be able to provide information about a specific person’s criminal history and conduct enforcement duties as part of a joint task force, as long as the primary purpose of that task force is not immigration enforcement.
Law enforcement engaging in a task force may have to submit a report to the Department of Justice detailing the task force’s purpose, the agencies involved, the number of arrests made during the reporting period, and the number of people arrested for immigration enforcement purposes.
As detailed in SB 54, government officials are not restricted from sending information about the citizenship or immigration status of an individual or requesting immigration status information from federal immigration authorities or exchanging that information with other government entities.
Changes within the Department of Corrections and Rehabilitation are reflected in the event of an interview between ICE and an individual in the department’s custody. The Department of Corrections must provide an individual with a written consent form explaining the purpose of the interview. It must also be explained that the interview is voluntary and that the individual may be interviewed with an attorney or may decline to be interviewed.
In passing the bill, the Legislature found and declared, as written in the bill text, that the importance and value of immigrants in California, the importance of a trusting relationship between immigrant communities and state and local agencies for public safety, and that state and local participation in federal immigration enforcement programs raises constitutional concerns.