December 12, 2011
Pursuant to Elections
Code Section 9005, we have reviewed the proposed initiative related to
transnational gangs and immigration (A.G. File No. 11‑0065).
Background
Transnational Gangs.
While no formal definition exists, transnational gangs are generally
understood to be gangs that operate in multiple countries. In
California, federal, state, and local law enforcement agencies work
cooperatively to investigate transnational gang activity and arrest
suspected gang members. Local and federal law enforcement agencies take
primary responsibility for prosecuting arrested individuals. The
Division of Law Enforcement within the California Department of Justice
(DOJ), which is administered by the Attorney General, helps coordinate
these activities and provides investigative expertise and assistance as
needed. This workload is performed predominantly by the division's
Bureau of Narcotic Enforcement and Bureau of Investigations and
Intelligence.
Immigration Laws. Federal
law (1) specifies the conditions under which foreign nationals may be
admitted to and remain in the U.S., (2) establishes a registration
system to monitor their entry and movement in the country, and (3)
authorizes the arrest and detention of individuals who are illegally
present in the U.S.
Federal government agencies are responsible for enforcing immigration
laws. Under agreements with the federal government, however, state or
local government agencies may assist the federal government in its
enforcement of those laws. An agreement with the federal government
defines the scope of the state or local government agencies’ enforcement
duties and activities. Currently, four local law enforcement agencies in
California have such agreements with the federal government.
Officers from the
participating state and local law enforcement agencies are trained by
the U.S. Immigration and Customs Enforcement (ICE) agency, which pays
for some of the cost associated with the training. The ICE also pays for
most of the technology required to support state and local immigration
investigations, subject to the availability of funds.
Immigration Detainers.
Under current federal law, the U.S. Department of Homeland Security
(DHS) can issue an immigration detainer for an individual in state or
local custody. An immigration detainer is a request that a state or
local law enforcement agency notify ICE so that it can take over custody
before that individual is released. State and local law enforcement
agencies are not generally required under federal or state law to verify
with DHS whether an immigration detainer should be issued for an
arrested individual. Nor are state and local agencies generally required
under federal or state law to transfer individuals for whom detainers
have been issued to federal authorities.
California Driver's Licenses and
Identification Cards. Under current law, the California
Department of Motor Vehicles (DMV) shall not issue a driver's licenses
or identification (ID) card to an individual who does not submit
satisfactory proof for being lawfully present in the U.S.. Current law
also requires the DMV to adopt regulations to carry out this process,
including procedures for verifying whether an individual is authorized
under federal law to be in the country.
According to the
department's current regulations, every individual seeking an original
driver's license or ID card in California—including those surrendering a
valid license or ID card from another state—must prove their legal
presence in the U.S. by presenting (1) a valid social security number,
if eligible under federal law, and (2) an original or certified copy of
an approved federal document that verifies the applicant's date of birth
and legal presence (such as a U.S. birth certificate or a "green card"
issued to immigrants who are granted permanent residence in our
country). A driver's license or ID card will not be issued unless the
DMV can verify both documents with the issuing federal agencies. In the
event that an individual has only limited-term legal presence in the
country, the driver's license or ID card will not be valid beyond the
expiration date listed on the submitted temporary legal presence
document.
Proposal
Increased Funding to Investigate
Crimes Related to Transnational Gangs. This measure states that
the Legislature shall appropriate, each year from 2013‑14 through
2032‑33, $35 million from the state General Fund to DOJ's Division of
Law Enforcement—a total of $700 million over the 20-year period. Under
the terms of this measure, these funds are to support investigations of
crimes related to transnational gangs, such as homicides and drug
trafficking. In addition, the measure states that the Attorney General
shall maintain the Bureau of Narcotic Enforcement and the Bureau of
Investigations and Intelligence for the time period that the above
funding is provided. (The enacted 2011-12 budget reduced General Fund
support for the Division of Law Enforcement by $37 million.)
Immigration Detainers.
This measure requires that an arresting agency, upon notification that
an arrested individual is unlawfully present in the country, immediately
verify with U.S. DHS whether an immigration detainer should be issued
for that individual. A state or local law enforcement agency that has
such an individual with a detainer in their custody would be prohibited
from releasing that individual and would have to transfer him or her
into federal custody, unless otherwise directed by a court.
Federal Agreements With State and
Local Law Enforcement Officers. The measure requires the state
DOJ to negotiate an agreement with the U.S. DOJ or the U.S. DHS to
designate certain law enforcement officers to perform certain duties of
federal immigration officers within California, such as serving warrants
of arrest for immigration violations or issuing immigration detainers.
Within 90 days of finalizing this agreement, the state DOJ must identify
the
20 counties in the state with the highest impact of crimes committed by
transnational gangs. Under the measure, the sheriffs in these particular
counties must designate at least one peace officer to receive training
in immigration enforcement duties, subject to the availability of
funding for this purpose. Other state and local law enforcement agencies
may also choose to designate peace officers to receive such training. In
addition, the measure instructs the state Attorney General to request
federal funding for the above training of law enforcement officers.
Policies Limiting Enforcement of
Federal Immigration Laws. The measure makes it illegal for state
and local government agencies and officials to prohibit or restrict in
any way (1) inquiries by peace officers into the citizenship or
immigration status of persons or (2) further efforts by peace officers
to verify the citizenship or immigration status of individuals.
Requirements for California
Driver's Licenses and ID Cards. The measure amends state law to
include certain existing DMV regulations regarding the issuance of
driver's licenses and ID cards. Specifically, the measure (1) prohibits
the acceptance of an out-of-state driver's license or ID card as proof
of legal presence in the U.S. if the issuing state does not verify
lawful presence as part of its application process, (2) requires the
verification of an applicant's submitted legal presence document if
their social security number cannot be verified, and (3) limits the
validity of a California driver's license or ID card issued to an
applicant legally admitted into the U.S. on a temporary basis to the
same time period as their legal presence document.
Fiscal Effects
Increase in State Law Enforcement
Costs. As discussed above, this measure states that the
Legislature shall appropriate, each year from 2013-14 through 2032-33,
$35 million from the state General Fund to DOJ's Division of Law
Enforcement for the investigation of transnational gang criminal
activity.
Increase in Various Other State
and Local Law Enforcement Costs. The measure could also increase
other state and local law enforcement costs. In particular, the
provisions of this measure could increase local jail-related costs to
the extent that law enforcement officials are more likely to detain
individuals suspected of being unlawfully present in the U.S., as
permitted by this measure. In addition, state and local law enforcement
agencies could incur additional costs to comply with the agreement
required by this measure between the state DOJ and the federal
government. The actual costs of these activities would depend on the
terms specified in the agreement, such as the scope of approved law
enforcement duties and training requirements. Collectively, the above
law enforcement costs are unknown but could reach several millions of
dollars annually, depending on how law enforcement agencies chose to
implement certain provisions of the measure.
Summary of Fiscal Effects
We estimate that this
measure could have the following major fiscal effects on state and local
governments:
·
Increased state costs of $35 million
annually from 2013-14 through 2032-33 to provide funding for
investigation of transnational gang criminal activity.
·
Increased state and local law enforcement
costs, potentially reaching several millions of dollars annually, for
detaining persons suspected of being unlawfully present in the U.S. and
for complying with an agreement required by this measure between the
state and the federal government.
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