HB2655 - 512R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 13, Arizona Revised Statutes, is amended by adding chapter 47, to read:

CHAPTER 47

IMMIGRATION DETAINERS

ARTICLE 1. GENERAL PROVISIONS

START_STATUTE13-5101. Definitions

In this chapter, unless the context otherwise requires:

1. "Eligible for release from criminal custody" means a person who may be released from criminal custody because one of the following conditions occurs:

(a) All criminal charges against the person are dropped or dismissed.

(b) The person is acquitted of all criminal charges filed against the person.

(d) The person posts a bond or is ordered released on the person's own recognizance.

(e) The person is otherwise eligible for release under state or local law or local policy.

2. "Immigration detainer" means an immigration detainer that is issued by an authorized immigration officer pursuant to 8 Code of Federal Regulations section 287.7, that requests the law enforcement official to maintain custody of a person for a period of time not to exceed forty‑eight hours, excluding Saturdays, Sundays and federal holidays, and to advise the authorized immigration officer before that person is released.

3. "Law enforcement official" means a state or local agency or an officer of a state or local agency that is authorized to enforce criminal laws, rules or local ordinances, to operate a jail or to maintain the custody of a person in a jail and a person or a state or local agency that is authorized to operate a juvenile detention facility or to maintain custody of a juvenile in a juvenile detention facility.

4. "Local agency" means an agency of any city, county or special district or any other political subdivision of this state.

5. "Violent or aggravated felony" has the same meaning prescribed in section 13‑706 and includes any offense committed in another jurisdiction that if committed in this state would be a violent or aggravated felony. END_STATUTE

START_STATUTE13-5102. Immigration detainer; authorized detention; access to federal officers; 287(g) agreements prohibited

A. A law enforcement official may detain a person on an immigration detainer after that person is eligible for release from criminal custody only if all of the following conditions are satisfied:

1. The person has been previously convicted of a violent or aggravated felony according to a criminal background check or documentation that is provided to the law enforcement official by United States immigration and customs enforcement or any other federal agency.

2. The continued detention of the person on the immigration detainer would not violate any federal, state or local law or any local policy.

3. This state or the local agency that is detaining the person is fully reimbursed for the costs of the detention and there is no expenditure of any state or local resources to honor the immigration detainer unless expressly provided for in this chapter.

B. A person may not be detained on an immigration detainer after the person is eligible for release from criminal custody and a law enforcement official may not transport the person to the custody of an immigration agent unless all of the conditions in subsection A of this section are satisfied.

C. Unless an immigration agent has a criminal warrant or a State law enforcement agency has a legitimate law enforcement purpose that is not related to the enforcement of immigration laws, United States immigration and customs enforcement agents may not be given access to a person who is in local or state custody or be allowed to use local or state facilities for investigative interviews or other purposes. Local and state personnel may not expend local or state resources responding to United States immigration and customs enforcement inquiries or communications with United States immigration and customs enforcement regarding a person's incarceration status or release dates while on duty.

D. This state or any political subdivision of this state may not enter into any 287(g) agreements and any agreement that is in force on the effective date of this section is void. END_STATUTE

START_STATUTE13-5103. Record keeping; public access

A. Every state and local law enforcement agency that is responsible for receiving and responding to immigration detainers shall maintain a record of the following information:

1. The number of detainer requests the agency received from the United States immigration and customs enforcement in the preceding month.

2. The number of persons held by the agency solely on the basis of an immigration detainer in the preceding month.

3. For each person who is held on an immigration detainer:

(a) The facility or agency where the person was held.

(b) The date that the detention began on the basis of the immigration detainer.

(d) Whether the person was transferred to the custody of the United States immigration and customs enforcement or another law enforcement agency or was released from custody.

(e) The grounds for the agency's decision to hold the person on the basis of the immigration detainer. The agency shall provide the specific statutory provision corresponding to the criminal conviction that was the basis for the person being held on the immigration detainer.

(f) Whether the United States immigration and customs enforcement provided reimbursement for the costs of additional detention due to the immigration detainer.

B. The records required by this section shall be made available to the public in an easily accessible and searchable format and shall be updated on a monthly basis. END_STATUTE

Sec. 2. Legislative findings

The Legislature finds and declares that:

1. The United States immigration and customs enforcement's (ICE) secure communities program and related deportation programs shift the burden of federal civil immigration enforcement onto local law enforcement. To operate the secure communities program, ICE relies on voluntary requests, known as ICE holds or detainers, to local law enforcement to hold individuals in local jails for additional time beyond when they would otherwise be entitled to be released in a criminal matter.

2. The 287(g) program has wreaked havoc on Arizona, resulting in demonstrable civil rights violations and heavy fiscal costs associated with resulting legal liability.

3. State and local law enforcement agencies are not reimbursed by the federal government for the full cost of responding to an immigration detainer, which can include extended detention time, and the administrative costs of tracking and responding to detainers.

4. Existing federal law authorizes any authorized immigration officer to issue an immigration detainer that serves to advise another law enforcement agency that the United States department of homeland security requests custody of an immigrant presently in the custody of that agency for the purpose of arresting and removing the immigrant. Federal law provides that the detainer is a request that the agency advise the department, before release of the alien, in order for the department to arrange to assume custody in situations when gaining immediate physical custody is either impracticable or impossible.

5. Unlike criminal detainers and extradition requests, which must be supported by probable cause, federal law governing immigration detainers imposes no requirement for a warrant and no established standard of proof, such as reasonable suspicion or probable cause, for issuing an immigration detainer request. Immigration detainers have been placed erroneously on United States citizens as well as immigrants who are not deportable. Additionally, while criminal detainer and extradition requests permit the subject of a request some measure of due process, there currently exists no mechanism for reviewing the propriety of an immigration detainer.

6. Prolonging the detention of a person who would otherwise be entitled to be released, because of an immigration detainer, is the equivalent of a warrantless arrest and must be accomplished consistent with the requirements of the Fourth Amendment to the United States Constitution and Article II, Section 4 of the Arizona Constitution.

7. The secure communities program and immigration detainers harm community policing efforts because immigrant residents who are victims of or witnesses to crime, including domestic violence, are less likely to report crime or cooperate with law enforcement when any contact with law enforcement could result in deportation. The program can result in a person being held and transferred into immigration detention without regard to whether the arrest is the result of a mistake, or merely a routine practice of questioning individuals involved in a dispute without pressing charges. Victims or witnesses to crimes who may otherwise have recourse to lawful status (such as U-visas or T-visas) are severely obstructed from pursuing such relief due to detention resulting from the secure communities program.

8. It is the intent of the Legislature that this act not be construed as providing, expanding or ratifying the legal authority for any state or local law enforcement agency to detain an individual on an immigration detainer.

Sec. 3. Severability

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.