Calif. penal code 834b not enforceable, but fed law covers immigration inquiries

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Following the L.A. City Council’s boycott of Arizona as a result of Arizona’s passage of  their immigration bill known as SB 1070, a number of blogs were interested in how California, a border state itself, handles its own immigration issues.

California has gone through a plethora of various legislative changes and court cases regarding their immigration laws, so immigration enforcement has essentially turned into a “don’t ask, don’t tell” circumstance for law enforcement.

As I mentioned in a previous post, California Penal Code 834b reads similarly to Arizona’s SB 1070. Both measures would mandate law enforcement officers to inquire about immigration status of individuals who are arrested. However, 834b was a provision of California’s 1994 doomed Proposition 187. Prop 187 was an immigration measure on 1994 California ballot that would prohibit illegal aliens from receiving health care, public education, and other social services in California.

 Four days after voters overwhelmingly passed Prop 187, a temporary restraining order was issued by Federal Judge Matthew Byrne on the measure. A permanent injunction was later issued by Judge Marianna Pfaelzer. 

The California Federal District court eventually ruled that Proposition 187, along with its 834b provision, was unconstitutional. The reasoning behind the ruling was the law was preempted by federal law. While 834b remains in the California Penal code to this day, it is not enforceable. However, subsequent to 834 b, Federal immigration 8 USC 1373 was passed. This law gives local police the discretion to communicate with ICE to check someone’s immigration status.

In fact, according to Judicial Watch’s Tim Fitton, “It could be argued that the Arizona law imposes some restrictions on the police that might be at odds with 8 USC 1644 or 1373.” Both federal laws are contradictory to a sanctuary city ordinance that would prohibit law enforcement officers from inquiring about an individual’s immigration status after arrest. The contradiction between federal immigration law and sanctuary city ordinances across the country has yet to be settled, so Judicial Watch, a Washington D.C. legal watchdog group put up a legal challenge regarding Los Angeles County’s Special Order 40. An ordinance that prohibits officers from asking those they arrest about their immigration status.

First, Judicial Watch asked the California Supreme Court to settle the important question of whether federal law preempts California Penal Code 834b, which states, in part, that “Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service (now Immigration and Customs Enforcement) regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration law.” The statute also prohibits local government entities from limiting the cooperation between local law enforcement officers and federal immigration officials.

The Court of Appeal failed to apply Penal Code 834b, finding that the provision, approved by voters in 1994 as part of Proposition 187, was preempted by federal law as “an impermissible regulation of immigration.”

“It is ironic, to say the least, that a statute enacted by California voters to promote cooperation and information sharing between state, local, and federal law officials on immigration matters would be dismissed so easily as an impermissible regulation of immigration when federal law so obviously seeks to promote these very same goals,” Judicial Watch states in its petition. (The federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 promotes the free flow of information between state and local officials and federal immigration authorities.)

In fact, earlier this year, the California Supreme Court found that a California statute allowing juveniles to be declared wards of the court based on violations of federal immigration laws was not preempted by the Supremacy Clause or any other federal law. The Court had recognized that “a regime of cooperative federalism, in which local, state, and federal governments may work together to ensure the achievement of federal criminal immigration policy.”

The court disagreed with Judicial Watch, but the organization scored a legal victory with a legal challenge against San Francisco’s sanctuary city ordinance. Unfortunately, until California changes political leadership, different areas of California will continue to handle immigration differently. While 834b was killed by political and legal forces, California police officers continue to handle illegal immigrants who are arrested and jailed in their respective counties. Some of these counties are participating in an ICE program known as “Secure Communities.” According to a March 2010 L.A. Times piece:

All inmates booked into Orange County jails will have their immigration status checked through a fingerprint identification program that started Tuesday.

Orange County joins 11 other California counties — including Los Angeles, San Diego and Ventura — that have started checking the status of inmates against a federal database as part of a national program to identify and deport undocumented immigrants who land in jail. The program, started in late 2008, is in place in dozens of municipalities nationwide.

The Orange County Register describes in detail how the system actually works:

Called Secure Communities, the program determines whether inmates have had any contact with the immigration system. It flags immigration officials, who can put a hold on those who are believed to be in the country illegally. Those inmates are detained for 48 hours to give immigration authorities a chance to pick them up.

…Instead of allowing state and local law enforcement agencies only to check the FBIdatabase for criminal history during a fingerprint scan. The program is now also linked to federal immigration databases to screen a person’s immigration record.

The FBI and federal immigration check happens simultaneously. When there is a fingerprint match, the system automatically flags immigration officials.

In most cases, inmates will finish serving their sentences before they are transferred to immigration custody for possible deportation.

Still, federal officials said they don’t have enough resources to pick up everyone the system as an illegal immigrant.

“We have a limited amount of resources,” Venturella said. “Our objective would be to identify and remove all criminal aliens from the United States. Like any governmental agency or business, you have a limited amount of dollars coming in.”

He said the agency is focusing on the “worst” criminal offenders who are in the country illegally. This means those who are arrested on suspicion of committing violent crimes, such as rape or homicide.

Immigration officials may get some non-violent offenders to leave the U.S. voluntarily while others may end up back in the community.

From October 2009 until the end of February, immigration officials arrested or issued detainers against 21,556 people nationwide who were identified as being in the country illegally and charged or convicted of crimes.

Of those, 4,523 were arrested on suspicion of or convicted of violent crimes - such as murder, rape and kidnapping.

About 14,741 have already been removed from the country. Some have been identified but not yet removed; they are completing their sentences.

The same program will be coming to the sanctuary city of San Francisco and begin to fingerprint juveniles charged with serious offenses. Like Proposition 187, though, the ICE program has its opponents in California, like San Francisco Sheriff Mike Hennessey. A law suit has already been filed againt the program. California’s cities may have been able to buck the system in the past but continuing to do so may just force the creation of more immigration enforcement policies elsewhere.

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About the Author
Kerry Picket

Kerry Picket

Kerry Picket, a former Opinion Blogger/Editor of The Watercooler, was associate producer for the Media Research Center, a content producer for Robin Quivers of "The Howard Stern Show" on Sirius satellite radio and a production assistant and copy writer at MTV.

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