United States of America v. State of California et al

Filing 171

REPLY by United States of America to RESPONSE to 2 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Reuveni, Erez)

EXHIBIT R

Information Bulletin 2018-DLE-01
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California’s immigrant community and state and local agencies is central to the public safety of the people of
California.” (Gov. Code, § 7284.2). Thus, the core purpose of the Values Act is to ensure effective policing and
to protect the safety, well-being, and constitutional rights of the people of California. (Ibid.)
The Values Act does the following:
1. Sets the parameters under which California state and local law enforcement agencies may engage in
“immigration enforcement,” as defined, and requires certain information about joint law enforcement
task forces and transfers of individuals to immigration authorities to be reported to the California
Department of Justice.
2. Requires the CDCR to provide individuals in its custody with information about their legal rights should
federal immigration officers request to make contact with them, similar to the requirements of the
TRUTH Act (Gov. Code, § 7283 et seq.), which applies to local law enforcement agencies.
3. Requires the Attorney General’s Office to issue model policies, to be adopted by public schools, state or
locally operated health facilities, courthouses and other enumerated state and local facilities, that limit
assistance with immigration enforcement to the fullest extent possible consistent with federal and state
law. The Attorney General’s Office will further provide guidance to agencies regarding ways to protect
privacy and limit the dissemination of information contained in their databases for immigration
enforcement purposes, as permitted under federal and state law.
It should be noted that the Values Act defines many terms, some of which may seem familiar to law
enforcement officers, but have special meaning within the context of this new law. For example, the Values
Act defines “California law enforcement agency” as “a state or local law enforcement agency, including
school police or security departments.” (Gov. Code, § 7284.4, subd. (a).) This term, however, does not
include the CDCR. (Ibid.) Therefore, the provisions of Government Code sections 7284.6 and 7284.8 do
not apply to the CDCR.
Further, the Values Act defines “immigration enforcement” as “any and all efforts to investigate, enforce, or
assist in the investigation or enforcement of any federal civil immigration law, and also includes any and all
efforts to investigate, enforce, or assist in the investigation or enforcement of any federal criminal
immigration law that penalizes a person’s presence in, entry, or reentry to, or employment in, the United
States.” (Gov. Code, § 7284.4, subd. (f).) And, under the Values Act, a “judicial warrant” means “a warrant
based upon probable cause for a violation of federal criminal immigration law and issued by a federal judge
or a federal magistrate judge that authorizes a law enforcement officer to arrest and take into custody the
person who is the subject of the warrant.” (Gov. Code, § 7284.4, subd. (i), emphasis added.) While this
bulletin points out a few of the relevant definitions, individual agencies should review the law to ensure full
understanding of all the key terms in the Values Act.

III.

The Discretion of California Law Enforcement Agencies to Participate in Immigration-Related
Activities is Limited By SB 54 in the Following Ways:
1. Prohibits use of resources to investigate, interrogate, detain, detect, or arrest persons for
immigration enforcement purposes, including:

Information Bulletin 2018-DLE-01
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a. Inquiring into an individual’s immigration status;1
b. Detain an individual in response to a hold request2;
c. Provide personal information, as defined in Civil Code section 1798.3, including but not limited to
home or work addresses, unless this information is “available to the public.” For purposes of this
prohibition, “personal information” means “any information that is maintained by an agency that
identifies or describes an individual, including, but not limited to, his or her name, social security
number, physical description, home address, home telephone number, education, financial matters,
and medical or employment history. It includes statements made by, or attributed to, the individual.”
(Civ. Code, § 1798.3, subd. (a).)
Although not expressly defined in the act, the phrase “available to the public” refers to information
where a law enforcement agency has a practice or policy of making such information public, such as
disclosing the information on its website or if it has a practice or policy of providing the information
to individuals in response to specific requests. Law enforcement agencies should, in addition to
ensuring compliance with the Values Act, take care to ensure that they comply with applicable state
or federal privacy laws.
However, there is an important exception to this limitation on providing personal information:
federal law (8 U.S.C. §§ 1373, 1644) prohibits restrictions on the exchange of information regarding
a person’s citizenship or immigration status, and all California law enforcement agencies should
comply with these laws.
d. Make or intentionally participate in arrests based on “civil immigration warrants,” which means any
warrant for a violation of federal civil immigration law and includes civil immigration warrants
entered in the National Crime Information Center database; and
e. Assist immigration authorities in immigration enforcement activities at the United States borders, as
described in 8 U.S.C. § 1357(a)(3), or performing the functions of an immigration officer whether
informally or formally, through an 8 U.S.C. § 1357(g) agreement or any other law, regulation or
policy.

This provision does not prohibit inquiries into an individual’s immigration status to immigration authorities, or exchanging
immigration status information with any other federal, state, or local government entity, pursuant to 8 U.S.C. §§ 1373 and
1644. (See Gov. Code, § 7284.6, subd. (e).)

1

“Hold request” means a request by any immigration authority that a local law enforcement agency maintain
custody of an individual currently in its custody beyond the time he or she would otherwise be eligible for release in
order to facilitate transfer to an immigration authority. (Gov. Code, §§ 7283, subd. (b); 7284.4, subd. (e).)

2

“Notification request” means a request by any immigration authority that a local law enforcement agency inform an
immigration authority of the release date and time in advance of the public of an individual in its custody. (Gov.
Code, §§ 7283, subd. (f); 7284.4, subd. (e).)
“Transfer request” means a request by any immigration authority that a local law enforcement agency facilitate the
transfer of an individual in its custody to an immigration authority. (Gov. Code, §§ 7283, subd. (g); 7284.4, subd.
(e).)
Hold, notification, and transfer requests include requests issued by U.S. Immigration and Customs Enforcement or
U.S. Customs and Border Protection as well as any other immigration authorities. (Gov. Code, § 7284.4, subd. (e).)
“Immigration authority” means any federal, state, or local officer, employee or person performing immigration
enforcement functions. (Gov. Code, § 7284.4, subd. (c).)

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2. California law enforcement agencies cannot honor transfer and notification requests or provide
information regarding a person’s release date except in certain circumstances:
California law enforcement agencies are never required to respond to transfer or notification requests -under the Values Act they retain the discretion to decline these requests for any reason. (Gov. Code, §
7282.5, subd. (a).) Thus, law enforcement agencies may honor transfer and notification requests as specified
in the Values Act as follows:
a. Transfer Requests: Responding to transfer requests is permitted only if:
i. The transfer is authorized by a judicial warrant, as defined by Government Code section 7282.4,
subdivision (i), or a judicial probable cause determination, as defined by Government Code
section 7282.4, subdivision (h), regarding a violation of federal criminal immigration law;
or
ii. Where the transfer would not otherwise violate any federal, state, or local law, or local
policy, and the individual in custody meets any one of the conditions set forth in the
TRUST Act, Government Code section 7282.5, subdivision (a). These qualifying
conditions are:
1) The individual has been convicted at any time of a serious or violent felony, as
defined in Penal Code section 1192.7, subdivision (c), or Penal Code section 667.5,
subdivision (c).
2) The individual has been convicted at any time of a felony that is presently punishable
by imprisonment in state prison.
3) The individual was convicted within the past 15 years of a felony listed in
Government Code section 7282.5, subdivision (a)(3), or within the past five years of
a wobbler (i.e., a crime punishable as either a felony or a misdemeanor) listed in
Government Code section 7282.5, subdivision (a)(3).
4) The individual is a current registrant on the California Sex and Arson Registry.
5) The individual has been convicted of certain specified federal aggravated felonies
identified in section 101(a)(43)(A)-(P) of the federal Immigration and Nationality Act
(8 U.S.C. § 1101(a)(43)(A)-(P)).
6) The United States Department of Homeland Security’s Immigration and Customs
Enforcement (ICE) identifies the person as the subject of an outstanding federal
felony arrest warrant for any federal crime.
Furthermore, if a law enforcement agency does transfer an individual to immigration authorities,
Government Code section 7284.6, subdivision (c)(2) requires the agency to report to the California
Department of Justice the number of transfers it makes in a calendar year, as well as the offense that
allowed for the transfer. For more information regarding these reporting obligations, please see
Information Bulletin 18-02-CJIS (California Values Act’s Statistical Reporting Requirements).

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b. Notification Requests: Providing information regarding a person’s release date or responding to
notification requests from immigration authorities by providing an individual’s release date or other
information is permitted only if:
i. The information is available to the public;
or
ii. The individual is subject to (1) the qualifying conditions in the TRUST Act, Government Code
section 7282.5, subdivision (a) described above with respect to transfer requests; or (2) the
individual has been arrested and taken before a magistrate judge on the following types of
charges, and the magistrate makes a probable cause determination (Pen. Code, § 872) for the
charge: (i) a serious or violent felony (Pen. Code, §§ 1192.7, subd. (c) or 667.5, subd. (c)); or (ii)
a felony that is punishable by imprisonment in state prison. (Gov. Code, § 7282.5, subd. (b)).
A conviction for a straight misdemeanor, i.e., a crime that is presently punishable only as a
misdemeanor, is not listed in section 7285, subdivision (a), and therefore is not a valid
justification for honoring a transfer or notification request. And misdemeanor convictions for
crimes affected by Proposition 47 (2014), the “Safe Neighborhoods and Schools Act,” including
felony convictions that were reduced to misdemeanors or re-designated as misdemeanors by a
court as a result of Proposition 47, cannot serve as the basis for transfers or providing release date
information to immigration authorities. (Gov. Code, § 7285.5, subd. (a)(6)). The crimes affected
by Proposition 47 include, but are not limited to: simple drug possession for personal use,
shoplifting, forgery, writing bad check, petty theft, and receiving stolen property.
Before honoring a transfer or notification request on the basis of a qualifying conviction,
California law enforcement agencies should carefully review an individual’s Record of Arrests
and Prosecutions to determine whether a listed felony conviction was reduced to a misdemeanor,
or re-designated as a misdemeanor, by a court under Proposition 47. If so, cooperation with
immigration authorities is prohibited, unless there is another valid basis for cooperation (for
transfers, a judicial warrant; for notifications, if the information is publicly available).
3. Other Restrictions on Immigration Enforcement
California law enforcement agencies may not (1) allow officers to be supervised by federal agencies or
deputized for immigration enforcement purposes; (2) use immigration authorities as interpreters for law
enforcement matters relating to individuals in custody; (3) provide office space exclusively for
immigration authorities in city or county law enforcement facilities; or (4) enter into a contract, after
June 15, 2017, with the federal government to house or detain adult and minor noncitizens in a locked
detention facility for purposes of immigration custody; agencies with existing federal contracts cannot
renew or modify the contract if doing so would expand the number of contract beds available to detain
noncitizens for purposes of civil immigration custody. (Gov. Code, §§ 7310, 7311).
IV.

If agency policy or local law or policy permit, a California law enforcement agency has discretion, but
is not required, to perform the following immigration enforcement activities:
1. Investigate, enforce, detain persons upon reasonable suspicion of, or arrest, persons for violation of 8
U.S.C. § 1326(a), the federal criminal violation for reentry by a noncitizen after removal, but only if the
individual was removed because of an aggravated felony conviction under 8 U.S.C. § 1326(b)(2) and the
suspected violation was detected during an unrelated law enforcement activity. This is the one limited
circumstance in which the Value Act permits a law enforcement official to exercise their discretion to

Information Bulletin 2018-DLE-01
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arrest or assist in the arrest of a person for a federal immigration law violation. Transfers of these
individuals to immigration authorities are subject to the above restrictions regarding transfers.
2. Provide individual criminal history in response to a request from immigration authorities about a specific
person’s criminal history, including information obtained from CLETs or similar local databases, as long
as it is otherwise permitted by state law.
3. Participate in a joint law enforcement task force, including the sharing of confidential information with
task force participants, if all of the following conditions are met:
a. The task force’s primary purpose is not immigration enforcement;
b. Enforcement or investigative duties are primarily related to violations of state or federal law
unrelated to immigration enforcement; and
c. The local law or policy that the agency is subject to permits such participation.
Nothing in the Values Act prohibits a California law enforcement agency from asserting its own
jurisdiction over criminal law enforcement matters, i.e., engaging in an investigation, detention or arrest
for criminal activities based upon California state law, even when its activities may indirectly impact or
assist a federal agency that is engaged in immigration enforcement as part of a joint task force or
otherwise. (Gov. Code, § 7284.6, subd. (f).) This includes circumstances in which an officer is
responding to a call for service involving a violation of a state criminal law or during an immigration
enforcement action where the safety of the public or a law enforcement officer, including an immigration
enforcement officer, is in danger. In these limited circumstances, a California law enforcement officer
may assist any law enforcement official, even if those officials are engaged in immigration enforcement,
but only when the California law enforcement officer is enforcing state law. This narrow public safety
exception should not be used to avoid the prohibitions in the Values Act on using state resources to
conduct immigration enforcement.
If a California law enforcement agency has agreed to dedicate personnel or resources on an ongoing
basis to a task force, it must report the information set forth in Government Code section 7284.6
subdivision (c)(1) concerning the activities of the task force to the Department of Justice, as explained in
Information Bulletin 18-02-CJIS (California Values Act’s Statistical Reporting Requirements).3
4. Ask for information necessary to certify potential victims of crime or human trafficking with respect to
T-visas and U-visas (8 U.S.C. §§ 1101(a)(15)(T) and 1101(a)(15)(U)),4 or to comply with 18 U.S.C. §
922(d)(5), which prohibits the sale or disposition of firearms or ammunition to a person who law
enforcement knows or has reasonable cause to believe is not lawfully present in the United States.
California Penal Code sections 679.10 and 679.11 mandate that certifying state and local agencies
submit certifications for T- or U-Visa applicants when certain conditions are met. Certifying law
enforcement agencies are prohibited from disclosing the immigration status information of a victim or
person requesting T- or U-visa certification forms except to comply with federal law or legal process, or
if authorized by the victim. For guidance regarding law enforcement agencies’ obligations under
An “ongoing basis” means more than one interaction with any federal, state, or local LEA on a task force to discuss task
force operations. Accordingly, isolated interactions with a federal law enforcement agency are not subject to these reporting
requirements because the California LEA did not dedicate personnel or resources to the task force on more than one
occasion.
4
The Victims of Trafficking and Violence Prevention Act (VTVPA) of 2000 is a federal law that, among other things,
provides temporary immigration benefits to individuals without immigration status who are victims of specified qualifying
crimes including human trafficking. (VTVPA, Pub. L. No. 106-386, 114 Stat. 1464-1548 (2000).)
3

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California Penal Code section 679.10 with respect to U-Visas, see the Information Bulletin by California
Department of Justice Division of Law Enforcement, dated October 28, 2015, available at
https://oag.ca.gov/system/files/attachments/press releases/dle-2015-04.pdf.
5. Provide ICE with access to interview an individual in custody, if the agency gives the notices required
by the TRUTH Act (Gov. Code, § 7283 et seq.). Local law or policy, or agency policy, may be more
restrictive than the Values Act. Agencies should determine whether, even if the Values Act permits
assistance in immigration enforcement related activities, the agency’s policy or local law or policies
prohibit such activities. Further, if a particular activity is prohibited by the agency or the agency’s
jurisdiction, the agency must comply with the more restrictive conditions of the agency or jurisdiction so
long as the local law or policy complies with 8 U.S.C. §§ 1373 and 1644, governing restrictions on the
exchange of a person’s immigration and citizenship status with government officials.
In addition, if officers are working in a school district pursuant to a memorandum of understanding
(MOU) between the law enforcement agency and the district, the officer must adhere to the requirements
of the MOU, even if that MOU conflicts with agency policy with respect to immigration enforcement
matters, so long as the MOU complies with 8 U.S.C. §§ 1373 and 1644.
V.

Additional Law Enforcement Activity Under the Values Act
1. The Values Act does not prohibit a law enforcement agency from exchanging information regarding a
person’s immigration status with governmental entities, including immigration authorities, and the Act
specifically cites 8 U.S.C. § 1373 and 8 U.S.C. § 1644 as authority for that provision. Under those
federal statutes, law enforcement officers must be allowed to:
a. Send to, or receive from, federal immigration authorities, information regarding the citizenship
or immigration status, whether lawful or unlawful, of any individual;
b. Request information from federal immigration authorities regarding any individual’s
immigration status, whether lawful or unlawful; and
c. Maintain or exchange information regarding the immigration status of any individual with other
governmental entities.
The Values Act also permits the disclosure of an individual’s name for purposes of making or
responding to an inquiry about an individual’s immigration or citizenship status to other governmental
entities.
2. One federal district court in California has ruled on the scope of 8 U.S.C. § 1373 and determined that
Section 1373 does not bar all restrictions on communications between state and local law enforcement
and the federal government, and specifically, does not bar restrictions on the sharing of inmates’ release
dates. That court determined that Section 1373 “only” prohibits restrictions on the exchange of
information regarding a person’s citizenship or immigration status. (Steinle v. City & Cty. of San
Francisco (N.D. Cal. 2017) 230 F. Supp. 3d 994, 1015.) Thus, under the Values Act, the disclosure of
all other personal information that does not encompass information regarding a person’s citizenship or
immigration status, including a person’s home and work address, is prohibited from disclosure unless it
is publicly available or permitted under Government Code section 7284.6, subdivision (b)(2).

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VI.

The Requirements of the TRUTH Act

The TRUTH Act, Government Code sections 7283, 7283.1, 7283.2, provides individuals who are in
the custody of local law enforcement agencies with information about their procedural and legal rights
should ICE wish to contact them. Specifically, the statute requires:
1. Before any interview between ICE and an individual in custody of a local law enforcement
agency regarding civil immigration violations, the local law enforcement entity shall provide
the individual with a written consent form,5 that explains all of the following:
a. The purpose of the interview;
b. That the interview is voluntary; and
c. That the individual may decline the interview or may choose to be interviewed with
only their attorney present.
2. Upon receiving any ICE hold, notification, or transfer request, the local law enforcement
agency shall:
a. Provide a copy of the request to the individual; and
b. Inform the individual whether the law enforcement agency intends to comply with the
request. However, with respect to ICE hold requests, the LEA may not hold an
individual past the time that he or she normally would be released, as is now required
under the Values Act. (Gov. Code, § 7284.6, subd. (a)(1)(B).)
3. If a local law enforcement agency chooses to provide ICE with notification that an individual
will be released from custody on a certain date, the local law enforcement agency must
promptly provide the same notification in writing to the individual and to his or her attorney or
other person designated by the individual being held. (Gov. Code, § 7283.1, subd. (b).)
4. All records relating to ICE access provided by local law enforcement agencies, including all
communication with ICE, shall be public records for purposes of the California Public
Records Act (Chapter 3.5 (commencing with Section 6250)), including the exemptions
provided by that Act. The TRUTH Act explicitly provides that personal identifying
information may be redacted prior to public disclosure as provided under the California Public
Records Act. When responding to such requests, law enforcement agencies should therefore
keep in mind California’s privacy laws and all applicable exemptions under the California
Public Records Act that protect such personal information from disclosure.6 (Gov. Code, §
7283.1, subd. (c).)
5. Beginning January 1, 2018, the local governing body of any county, city, or city and county in
which a local law enforcement agency has provided ICE access to an individual during the last
5

The local law enforcement agency is required to make the written consent form available in English, Spanish, Chinese,
Tagalog, Vietnamese, and Korean, and any additional languages that meet the county threshold as defined in Health and
Safety Code section 128552, subdivision (d), if certified translations in those languages are made available to the local
law enforcement agency at no cost. In keeping with the spirit of the law to advise individuals of their rights, a local law
enforcement agency should not pre-populate or presuppose the responses in the consent form.
6
Records relating to ICE access as provided in the TRUTH Act include, but are not limited to, data maintained by the local
law enforcement agency regarding the number and demographic characteristics of individuals to whom the agency has
provided ICE access, the date ICE access was provided, and whether the ICE access was provided through a hold, transfer,
or notification request or through other means.

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year is required to hold at least one community forum open to the public during the following
year. (Gov. Code, § 7283, subd. (d).)
VII.

SB 54 Requires State Prisons Provide Similar Information Required by the TRUTH Act
The Values Act requires CDCR to provide an individual in custody with a written consent form and other
notifications before allowing an interview between ICE and the individual regarding civil immigration
violations. Specifically, this form must explain the purpose of the interview, that the interview is voluntary, and
that the individual may decline to be interviewed or may choose to be interviewed only with their attorney
present. The consent form must be available in English, Spanish, Chinese, Tagalong, Vietnamese and Korean.
The CDCR must also give a copy of an ICE hold, notification, or transfer request to the individual and inform
the person whether the agency or CDCR intends to comply with the request. (Gov. Code, § 7284.10.)
In addition, CDCR cannot restrict access to certain opportunities based solely on an individual’s citizenship or
immigration status (Gov. Code, § 7284.10, subd. (b)(1)), and cannot consider citizenship or immigration status in
determining an individual’s custodial classification level. (Gov. Code, § 7284.10, subd. (b)(2).)

VIII.

Repeal of Health and Safety Code section 11369
SB 54 also repeals Health and Safety Code section 11369, which required an arresting law enforcement agency
to notify the appropriate federal agency if it believed that a person arrested for certain drug violations may not be
a United States citizen.

Sincerely,

KEVIN GARDNER, Chief
Division of Law Enforcement
For

XAVIER BECERRA
Attorney General