Policy Richmond Police Department
414 Richmond PD CA Policy Manual
Immigration Violations
414.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidelines to members of the Richmond Police Department relating to immigration and interacting with federal immigration officials. 414.1.1 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 and issued by a federal judge or a federal magistrate judge.
414.2 POLICY
It is the policy of the Richmond Police 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.
414.2.1 IMMIGRATION "SWEEPS" AND SPECIAL ENFORCEMENT EFFORTS The Richmond Police Department does not conduct immigration "sweeps" or engage in other concentrated efforts to identify or detain suspected undocumented individuals.
Equal consideration should be given to all suspected violations and not just those affecting a particular race, ethnic group, age group, gender, socioeconomic status, immigration status, or other group when enforcement efforts are increased in any particular area of the city.
The disposition of each contact (e.g., warning, citation, arrest), while discretionary in each case, should not be affected by such factors as race, ethnicity, sexual orientation, immigration status, etc.
414.2.2 ICE REQUEST FOR ASSISTANCE
If the U.S. Immigration and Customs Enforcement (ICE) requests assistance from this department for support services, such as traffic control or "keep the peace" efforts, authorization shall not be granted.
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RPD officers shall not participate in ICE operations, including immigration "sweeps", or enforcement, except when necessary to protect life or property. 414.2.3 BOOKING
If the officer is unable to reasonably establish an arrestee's identity, the individual may, upon approval of a supervisor, be booked into jail for the suspected criminal violation and held for bail.
A person detained exclusively pursuant to the authority of Vehicle Code § 40302(a) for any Vehicle Code infraction or misdemeanor shall not be detained beyond two hours for the purpose of establishing his/her true identity. Regardless of the status of that person's identity at the expiration of two hours, he/she shall be released on his/her signature with a promise to appear in court for the Vehicle Code infraction or misdemeanor involved.
414.2.4 NOTIFICATION OF IMMIGRATION AND CUSTOMS ENFORCEMENT It is the policy of the City of Richmond and the Richmond Police Department that the Department shall not comply with Immigration and Customs Enforcement (ICE) hold "requests" or ICE detainers. Arrested persons shall not be held for these hold/retainer "requests." ICE has no legal authority to require compliance with these "requests." The Department shall comply with federal arrest warrants or orders signed by a judge.
ICE personnel shall not be allowed access to the Richmond Police Department Detention Unit (Temporary Holding Facility) unless they are there to pick up a prisoner on a federal warrant or order signed by a judge.
Richmond Police Department personnel shall not notify ICE of individuals who are taken into custody. If an arrested person meets Richmond Police Department criteria to be transported and booked into the County Jail, that person may be subject to an ICE hold or detainer "request" once he or she is booked into the county Jail based on the Contra Costa County Sheriff's Department's policy which provides ICE personnel access to the County Jail and shares information with ICE.
ICE personnel shall not be permitted access to any Richmond Police Department records, including booking sheets, booking logs, or police reports unless they present a valid court order signed by a judge.
Any deviations from this policy shall require the approval of the Chief of Police. 414.3 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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414.3.1 ICE REQUEST FOR ASSISTANCE
The Richmond Police Department's U-Visa program is managed by the Lieutenant assigned to the Criminal Investigations Section. A petition for a U-Visa from the U.S. Citizenship and Immigrations Services must be completed on DHS Form I-918 by the assigned investigator or the assigned prosecutor and must include information on how the individual can assist in a criminal investigation or prosecution in order for a U-Visa to be issued.
Any request for assistance in applying for U-Visa status should be forwarded in a timely fashion to the Investigations Division Lieutenant assigned to supervise the handling of any related case.
The Investigations Division Lieutenant should do the following:
Consult with the assigned detective to determine the current status of any related case and whether an update on the case is warranted.
• Review the instructions for completing the certification if necessary. Instructions for completing Form I-918 can be found on the DHS website at http://www.uscis.gov/ portal/site/uscis.
• Contact the appropriate prosecutor assigned to the case, if applicable, to ensure the certification has not already been completed and that certification is warranted. • Timely address the request and complete the certification if appropriate. • Ensure that any decision to complete or not complete the form is documented in the case file and forwarded to the appropriate prosecutor. Include a copy of any completed certification in the case file.
414.4 IMMIGRATION INQUIRIES PROHIBITED
Officers shall not inquire into an individual's immigration status for immigration enforcement purposes (Government Code § 7284.6).
414.4.1 U-VISA/T-VISA NONIMMIGRANT STATUS
Under certain circumstances, federal law allows temporary immigration benefits to victims and witnesses of certain qualifying crimes (8 USC § 1101(a)(15)(U); 8 USC § 1101(a)(15) (T)). A declaration/certification for a U-Visa/T-Visa from the U.S. Citizenship and Immigration Services may be completed on the appropriate U.S. DHS Form supplements (I-918 or l-914) by law enforcement and must include information on how the individual can assist in a criminal investigation or prosecution in order for a U-Visa/T-Visa to be issued.
Any request for assistance in applying for U-Visa/T-Visa status should be forwarded in a timely manner to the Investigations Division Lieutenant assigned to supervise the handling of any related case. The Investigations Division Lieutenant should do the following:
(a) Consult with the assigned detective to determine the current status of any related case and whether further documentation is warranted.
(b) Review the instructions for completing the declaration/certification if necessary.
Instructions for completing Forms I-918/l-914 can be found on the U.S. DHS website.
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(c) Contact the appropriate prosecutor assigned to the case, if applicable, to ensure the declaration/certification has not already been completed and whether a declaration/ certification is warranted.
Address the request and complete the declaration/certification, if appropriate, in a timely manner.
(e) Ensure that any decision to complete or not complete the form is documented in the case file and forwarded to the appropriate prosecutor. Include a copy of any completed declaration/certification in the case file.
414.4.2 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).
Members shall not use the system to investigate immigration violations of 8 US § 1325 (improper entry) if that violation is the only criminal history in an individual's record (Government Code § 15160).
414.4.3 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). 414.5 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).
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414.5.1 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.
(b) Transfer the person to jail.
(c) Shall notify the OIC and the Chief of Police.
414.6 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 the California Values Act (Government Code § 7284.2 et seq.). 414.7 INFORMATION SHARING
Nothing in this policy restricts sharing information that is permissible under the California Values Act.
414.7.1 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 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.
414.7.2 NOTICE TO INDIVIDUALS
Individuals in custody shall be given a copy of documentation received from U.S. Immigration and Customs Enforcement (ICE) regarding a hold, notification, or transfer request along with information as to whether the Richmond Police Department intends to comply with the request (Government Code § 7283.1).
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If the Richmond Police Department provides ICE with notification that an individual is being, or will be, released on a certain date, the same notification shall be provided in writing to the individual and to his/her attorney or to one additional person who the individual may designate (Government Code § 7283.1).
414.7.3 ICE INTERVIEWS
Interviews shall not be conducted by Richmond Police Department personnel, nor by any outside agency within the Richmond Police department facility.
414.7.4 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 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.
414.7.5 REPORTING TO CALIFORNIA DEPARTMENT OF JUSTICE
The Investigations Division supervisor shall ensure that 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 reporting to the DOJ (Government Code § 7284.6(c)(2)(see the Records Section policy). 414.8 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 U visa or T visa status should be forwarded in a timely manner to the Investigations Division supervisor assigned to oversee the handling of any related case. The Investigations Division supervisor should:
(a) Consult with the assigned investigator to determine the current status of any related case and whether further documentation is warranted.
(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.
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1. The instructions for completing certification and declaration forms can be found on the U.S. Department of Homeland Security (DHS) website.
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(i)(3).
4. Forward the completed Form I-918 Supplement 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.
1. If Form I-918 Supplement B is not certified, a written explanation of denial shall be provided to the victim or authorized representative. The written denial shall include specific details of any reasonable requests for cooperation and a detailed description of how the victim refused to cooperate (Penal Code § 679.10). (e) Inform the victim liaison of any requests and their status. 414.8.1 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 § 679.10 and Penal Code § 679.11 within 30 days of a request from the victim, 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.
414.8.2 POLICE REPORTS
Upon request, an officer or 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).
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414.8.3 REPORTING TO LEGISLATURE
The Investigations Division Commander or the authorized designee should ensure that certification requests are reported to the Legislature 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). 414.9 TRAINING
The Training Sergeant should ensure that all appropriate members receive training on immigration issues.
Training should include:
(a) Identifying civil versus criminal immigration violations. (b) Factors that may be considered in determining whether a criminal immigration violation has been committed.
(c) Prohibitions contained in the California Values Act (Government Code § 7284 et seq.).
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