Burbank Police Department
Michael Albanese, Chief of Police
Policy
428
Approved: Effective Date: February 12, 2014
CHAPTER 4 – PATROL OPERATIONS
Immigration Violations/Truth Act
428.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidelines to members of the Burbank Police Department (Department) relating to immigration and interacting with federal immigration officials. 428.1.1 DEFINITIONS
The following definitions apply to this policy (Government Code § 7284.4):
Criminal immigration violation - Any federal criminal immigration violation that penalizes a person’s presence in, entry, or reentry to, or employment in, the United States. This does not include any offense where a judicial warrant already has been issued.
Immigration enforcement - Any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal civil immigration law, including 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.
Judicial warrant - An arrest warrant for a violation of federal criminal immigration law issued by a federal judge or a federal magistrate judge.
428.2 POLICY
It is the policy of the Department that all members make personal and professional commitments to equal enforcement of the law and equal service to the public. Confidence in this commitment will increase the effectiveness of this Department in protecting and serving the entire community and recognizing the dignity of all persons, regardless of their national origin or immigration status. 428.3 VICTIMS AND WITNESSES
To encourage crime reporting and cooperation in the investigation of criminal activity, all individuals, regardless of their immigration status, must feel secure that contacting or being addressed by members of law enforcement will not automatically lead to immigration inquiry and/or deportation. While it may be necessary to determine the identity of a victim or witness, members shall treat all individuals equally and not in any way that would violate the United States or California constitutions.
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Burbank Police Department
Michael Albanese, Chief of Police
Policy
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428.4 IMMIGRATION INQUIRIES PROHIBITED
Officers shall not inquire into an individual ’s immigration status for immigration enforcement purposes (Government Code § 7284.6).
CALIFORNIA LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM (CLETS) Members shall not use information transmitted through CLETS for immigration enforcement purposes except for criminal history information and only when consistent with the California Values Act (Government Code § 15160).
CALIFORNIA DEPARTMENT OF MOTOR VEHICLES
Members shall not obtain, access, use, or otherwise disclose noncriminal history information maintained by the DMV for immigration enforcement (Vehicle Code §1808.48). 428.5 DETENTIONS AND ARRESTS
An officer shall not detain any individual, for any length of time, for a civil violation of federal immigration laws or a related civil warrant (Government Code § 7284.6).
An officer who has a reasonable suspicion that an individual already lawfully contacted or detained has committed a criminal violation of 8 USC § 1326(a) (unlawful reentry) that may be subject to an enhancement due to a previous conviction of an aggravated felony under 8 USC § 1326(b)(2), may detain the person for a reasonable period of time to contact federal immigration officials to verify whether the United States Attorney General has granted the individual permission for reentry and whether the violation is subject to enhancement (Government Code § 7284.6). No individual who is otherwise ready to be released should continue to be detained only because questions about the individual’s status are unresolved.
If the officer has facts that establish probable cause to believe that a person already lawfully detained has violated 8 USC § 1326(a) and the penalty may be subject to enhancement due to prior conviction for specified aggravated felonies, he/she may arrest the individual for that offense (Government Code § 7284.6).
An officer shall not detain any individual, for any length of time, for any other criminal immigration violation of federal immigration laws (Government Code § 7284.6).
An officer should notify a supervisor as soon as practicable whenever an individual is arrested for violation of 8 USC § 1326(a).
428.5.1 SUPERVISOR RESPONSIBILITIES
When notified that an officer has arrested an individual for violation of 8 USC § 1326(a) or under the authority of a judicial warrant, the supervisor should determine whether it is appropriate to:
(a) Transfer the person to federal authorities
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Burbank Police Department
Michael Albanese, Chief of Police
Policy
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(b) Transfer the person to jail
428.6 FEDERAL REQUESTS FOR ASSISTANCE
Absent an urgent issue of officer safety or other emergency circumstances, requests by federal immigration officials for assistance from this Department should be directed to a supervisor. The supervisor is responsible for determining whether the requested assistance would be permitted under California Values Act (Government Code § 7284.2 et seq.). 428.7 INFORMATION SHARING
No member of this Department will prohibit, or in any way restrict, any other member from doing any of the following regarding the citizenship or immigration status, lawful or unlawful, of any individual (8 USC § 1373; Government Code § 7284.6):
(a) Sending information to, or requesting or receiving such information from federal immigration officials
(b) Maintaining such information in Department records
(c) Exchanging such information with any other federal, state, or local government entity Nothing in this policy restricts sharing information that is permissible under California Values Act. 428.7.1 IMMIGRATION DETAINERS
No individual should be held based solely on a federal immigration detainer under 8 CFR 287.7 (Government Code § 7284.6).
Notification to a federal authority may be made prior to the release of an individual who is the subject of a notification request only if the individual meets one of the following conditions (Government Code § 7282.5; Government Code § 7284.6):
(a) The individual has been arrested and had a judicial probable cause determination for a serious or violent felony identified in Penal Code § 667.5(c) or Penal Code § 1192.7(c) (b) The individual has been arrested and had a judicial probable cause determination for a felony punishable by time in a state prison
(c) The individual has been convicted of an offense as identified in Government Code §7282.5(a)
(d) The individual is a current registrant on the California Sex and Arson Registry (e) The individual is identified by the U.S. Department of Homeland Security’s Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant ATTACHMENT 4
Burbank Police Department
Michael Albanese, Chief of Police
Policy
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428.7.2 NOTICE TO INDIVIDUALS
U.S. Immigration and Customs Enforcement (ICE) holds, notifications, and transfer requests are generally made to the Jail or Records Bureau. Upon receiving an ICE hold, notification, or transfer request for any individual while in the custody of the Burbank Police Department the following shall occur:
(a) The Watch Commander shall be advised of, and review all ICE requests (b) All ICE requests, regardless of whether the Department chooses to comply with the request, shall be forwarded to a Jailer
(c) Individuals in custody shall be given a copy of documentation received from ICE regarding a hold, notification, or transfer request along with information as to whether the Department intends to comply with the request (Government Code § 7283.1). The Jailer shall notify the individual by giving him/her a copy of Truth Act Form 2. Any decision to comply with the request shall be in conformance with Department policy and the California TRUTH Act (Government Code § 7282-7282.5)
(d) If the Department intends to comply with an ICE notification request, the individual shall be given the opportunity to complete the notification form with contact information for his or her attorney or to one additional person whom the individual shall be permitted to designate (e) If in response to a request from ICE the Department notifies ICE that an individual is being, or will be, released on a certain date and time, the Department shall provide the same notice, using TRUTH Act Form 3, to the individual. The Department shall also notify the individual’s attorney or other designee using the contact information provided by the individual on TRUTH Act Form 2 (Government Code § 7283.1)
(f) The Jailer shall note his or her actions in the records management system (Tiburon) 428.7.3 ICE INTERVIEWS
Before an individual in custody is made available for an interview with ICE (whether in person or by phone, including by being located in an area of the jail where ICE has the ability to approach the individual) for questioning:
(a) The Jailer must provide the individual with a copy of the written consent form (Truth Form 1), which explains that the purpose of the interview is to investigate potential immigration violations, that the interview is voluntary, and that he or she may decline to be interviewed and/or may choose to be interviewed only with his or her attorney present (b) The consent form shall be provided in the individual’s preferred language, as indicated by the individual if the form is readily available in that language. The Truth Act requires that the form be made available in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. These forms are available online at catruthact.org under the Resources tab. (c) The individual may indicate whether he or she consents to the interview by marking the form ATTACHMENT 4
Burbank Police Department
Michael Albanese, Chief of Police
Policy
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(d) If the individual does not affirmatively consent to the interview by signing the form, the individual shall not be made available for an ICE interview
(e) If the individual indicates that he or she is only willing to speak to ICE with an attorney present, the individual shall not be made available for an interview until the attorney is present (f) The Jailer must also sign and date the form, indicating that it has been provided to the individual and when this occurred. Once signed, a copy will be provided to the individual in custody 428.7.4 TRANSFERS TO IMMIGRATION AUTHORITIES
Members shall not transfer an individual to immigration authorities unless one of the following circumstances exist (Government Code § 7282.5; Government Code § 7284.6):
(a) Transfer is authorized by a judicial warrant or judicial probable cause determination (b) The individual has been convicted of an offense as identified in Government Code §7282.5(a)
(c) The individual is a current registrant on the California Sex and Arson registry (d) The indivi dual is identified by the U.S. Department of Homeland Security’s Immigration and Customs Enforcement as the subject of an outstanding federal felony warrant 428.7.5 REPORTING TO CALIFORNIA DEPARTMENT OF JUSTICE
The Jail Manager or the authorized designee shall ensure that the data regarding the number of transfers of an individual to immigration authorities, as permitted by Government Code § 7284.6(a)(4), and the offense that allowed for the transfer is collected and provided to the Records manager for required annual reporting to DOJ beginning January 15, 2019 (Government Code § 7284.6(c)(2) (see Records Bureau Policy).
428.8 U VISA AND T VISA NONIMMIGRANT STATUS
Under certain circumstances, federal law allows temporary immigration benefits, known as a U visa, to victims and witnesses of certain qualifying crimes (8 USC § 1101(a)(15)(U)). Similar immigration protection, known as a T visa, is available for certain qualifying victims of human trafficking (8 USC § 1101(a)(15)(T)).
Any request for assistance in applying for a U visa or T visa status should be forwarded in a timely manner to the Investigation Division supervisor assigned to oversee the handling of any related case.
The Investigation Division supervisor should:
(a) Consult with the assigned investigator to determine the status of any related case and whether further documentation is warranted
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Burbank Police Department
Michael Albanese, Chief of Police
Policy
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(b) Contact the appropriate prosecutor assigned to the case, if applicable, to ensure the certification or declaration has not already been completed and whether a certification or declaration is warranted
(c) Address the request and complete the certification or declaration, if appropriate, in a timely manner
1. The instructions for completing certification and declaration forms can be found on the U.S. Department of Homeland Security (DHS) website
2. Form I-918 Supplement B certification shall be completed if the victim qualifies under Penal Code § 679.10 (multiple serious offenses). The certification shall be completed and not refused for the specified reasons in Penal Code § 679.10(k)(3)
3. Form I-914 Supplement B declaration shall be completed if the victim qualifies under Penal Code § 236.5 or Penal Code § 679.11 (human trafficking). The declaration shall be completed and not refused for completion for the specified reasons in Penal Code § 679.11(j)(3)
4. Forward the completed Form I-918 B certification or completed Form I-914 declaration B to the victim, family member, or authorized representative (as defined in Penal Code § 679.10 and Penal Code § 679.11) without requiring the victim to provide government- issued identification (Penal Code § 679.10; Penal Code § 679.11) (d) Ensure that any decision to complete, or not complete, a certification or declaration form is documented in the case file and forwarded to the appropriate prosecutor. Include a copy of any completed form in the case file
(e) Inform the victim liaison of any requests and their status 428.8.1 TIME FRAMES FOR COMPLETION
Officers and their supervisors who are assigned to investigate a case of human trafficking as defined by Penal Code §236.1 shall complete the above process and the documents needed for indicating the individual is a victim for the T visa application within 15 business days of the first encounter with the victim, regardless of whether it is requested by the victim (Penal Code §236.5).
Officers and their supervisors shall complete the above process and the documents needed certifying victim cooperation for a U visa or T visa application pursuant to Penal Code §79.10 and Penal Code §679.11 within 30 days of a request from the victim, the victim’s family, or authorized representative related to one of their assigned cases. If the victim is in removal proceedings, the certification shall be processed within seven days of the first business day following the day the request was received. 428.8.2 REPORTING TO LEGISLATURE
The assigned Investigation Division supervisor shall ensure that certification requests are tracked and an entry is made in the case management module of Tiburon for each case associated with a ATTACHMENT 4
Burbank Police Department
Michael Albanese, Chief of Police
Policy
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certification request. The Investigation Division supervisor shall report the number of certification requests that are signed and denied to the Chief’s Office at the end of each calendar year.
The Chief’s Executive Assistant will be responsible for reporting the certification report to the Legislature (i.e. Secretary of the Senate, Chief Clerk of the Assembly, Office of Legislative Counsel) in January of each year and include the number of certifications signed and the number denied. The report shall comply with Government Code §9795 (Penal Code §679.10; Penal Code §679.11) and be sent to the following:
(a) Secretary of the Senate (Printed Copy)
State Capitol, Room 3044
Sacramento, CA 95814
(b) Chief Clerk of the Assembly (Electronic Copy)
[email protected]
[email protected]
[email protected]
(c) Office of Legislative Counsel (Electronic Copy)
[email protected]
POLICE REPORTS
Upon request, Records Bureau personnel, with the approval of a supervisor, should provide a victim or authorized representative with a copy of the report filed by the victim within seven days of the request (Penal Code §679.10).
428.9 TRAINING
The Training Coordinator (COPS Bureau) shall ensure that all appropriate members receive immigration training.
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