California’s TRUTH Act – Due Process for Immigrants Held in Local Jails
On September 28, 2016, California Governor Jerry Brown signed into law the TRUTH Act which protects immigrant communities against harsh immigration enforcement practices. With this law, California becomes the first state to require immigrants be told of their right to an attorney before being interviewed by federal immigration authorities while in custody. The TRUTH Act responds to the growing concern that Immigration and Customs Enforcement (ICE)’s “Priority Enforcement Program” (PEP) and similar initiatives are replicating the failures of the former Secure Communities initiative—a program that was ultimately condemned after separating tens of thousands of families across the state of California and damaging public safety.
The 2016 TRUTH Act builds upon an Act of similar name passed in 2013. Prior to the 2013 TRUST Act, ICE routinely asked local jails to hold individuals until they could be picked up and removed or detained for deportation proceedings. These holds resulted in great hardships due to extended family separation and weakened relations and trust between communities and local law enforcement. The 2013 Act, protected community members from such holds unless they had committed certain crimes, including past convictions, and certain felony charges. After the law went into effect, a number of federal court decisions found that detention by state and local law enforcement agencies under an ICE “hold” or detainer request violates the Fourth Amendment. Unfortunately, the 2013 TRUST Act’s protections were circumvented by ICE who instead of asking that the person be held began asking when the person would be released.
When the 2016 TRUTH Act was considered and heard before the California Assembly, two witnesses provided powerful stories. Tom Swann Hernandez, a Marine Corps veteran who is legally blind and living with AIDS, was set to marry his partner, Guillermo Hernández, on Valentine’s Day. But after ICE agents arrested Guillermo following a January local court hearing, the couple became the first same-sex couple to marry inside the confines of an ICE detention facility. Noting the devastating emotional toll of his husband’s detention, Swann-Hernández stated, “It is a tragedy that instead of having a honeymoon, Guillermo is awaiting a deportation hearing.” Pedro Figueroa, who the local police department summoned to recover his stolen car, ended up languishing in detention for months. His experience underscores the continuing abuse and due process violations by ICE. In Mr. Figueroa’s case, ICE asked local law enforcement to notify them when he was slated for release so that they could take him into federal custody. Emotionally recounting the ordeal, Mr. Figueroa testified, “My fiancée and 8-year-old daughter arrived to find me inside the ICE van being taken away. My daughter was screaming, ’Papi, Papi!’ and pressing her hands to the window of the van.”
The 2016 TRUTH Act brings greater accountability to the system by establishing a transparent process, including community engagement, prior to local law enforcement participation in ICE deportation programs. Local law enforcement must then reach an agreement with the city council or county supervisors, dictating the terms and conditions of any participation in such programs, and compliance with the TRUST Act. Specifically, the law:
- Provides “Know Your Rights” to Every Individual. Prior to any ICE interview, law enforcement must give inmates a written consent form that explains the purpose of the interview, that the interview is voluntary, and that he/she may decline to be interviewed or may choose to be interviewed only with an attorney present. The TRUTH Act requires the form to be translated in multiple languages.
- Ensures Fair Notice to Every Individual. If a local law enforcement agency provides ICE with notification of an individual’s release date and time, the agency must also provide the same notification to the individual and their attorney or designee.
- Community Involvement. Starting in 2018, local legislative bodies must hold a community forum annually if local law enforcement allows ICE access to any individual. Additionally, the Act ensures that records related to ICE access are subject to the California Public Records Act.
The TRUTH Act’s effective date is January 1, 2017; for immigrants and their families, and their right to due process which is enshrined in the Constitution, that day can’t come soon enough.
Written by Olivia Lee, AILA Northern California Chapter Chair