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California Bill Would Protect Immigrants Freed Under Criminal Justice Reforms From Being Handed to ICE

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Detail shot of the back of a large man with a bald head and thick neck, wearing a black shirt with 'police ice' printed on it in all capital letters
A new California bill would protect some noncitizens from being turned over to U.S. Immigration and Customs Enforcement (ICE) upon their release from prison. (Photo by John Moore/Getty Images)

A bill that would restrict California prisons from handing certain people over to immigration authorities upon their release gets its first hearing in the state Assembly this morning.

The bill, known as the HOME Act, takes a more targeted approach than its predecessor, the VISION Act, which narrowly failed in the state Legislature last August.

Rather than block all transfers from prison to U.S. Immigration and Customs Enforcement (ICE), the HOME Act would protect noncitizens from being turned over to federal authorities if the governor has granted them clemency, or they’ve been released from prison due to any of several criminal justice reform laws recently enacted in California.

The bill’s author, Assemblymember Wendy Carrillo (D-Echo Park), says that when the Legislature passed those reforms — aimed at reducing over-incarceration and racial disparities in the criminal justice system, and offering second chances — she doesn’t believe lawmakers meant to exclude immigrants.

A Latina woman speaks into a microphone behind a dais with a sign that reads "Los Angeles County Democratic Party."
Assemblymember Wendy Carrillo speaks during the Los Angeles County Democratic Party election night drive-in watch party at the Los Angeles Zoo parking lot on Tuesday, Nov. 3, 2020. (Myung J. Chun/Los Angeles Times via Getty Images)

“Yet the state of California has created a dual system of justice, which treats immigrants differently after they have paid their debt to society and have been paroled. They are not given the opportunity to restart their lives and go home,” she said. “It is a complete injustice in our judicial system.”

Under federal immigration law, even legal permanent residents with green cards can lose their status and be deported if they have committed certain crimes. Undocumented immigrants who lack legal status are also deportable, though in recent years, California has enacted a range of policies to support all immigrants, including those who are unauthorized.

Legal tug-of-war

One person who could have benefited from the HOME Act is Sandra Castañeda, a Los Angeles woman who was released from prison in 2021, after 19 years behind bars.

Castañeda had been convicted of second-degree murder in 2002 after a teenager was killed when a man fired from the window of Castañeda’s van as she drove acquaintances to Taco Bell. The shooter was never arrested, and, though she had no criminal record, Castañeda was sent away for 40 years-to-life for the shooting.

A white van seen behind a prison fence at the prison entrance as people stand beside it.
Sandra Castañeda is loaded into a van from US Immigration and Customs Enforcement inside the gates of the California Institution for Women on the day of her release from prison, July 27, 2021. (Courtesy of Colby Lenz/California Coalition for Women Prisoners)

But in 2018 the state Legislature narrowed the “felony murder” law, which allowed for murder charges for people like Castañeda, who were present at a murder but did not themselves kill anyone. And a state judge vacated her conviction and ordered her freed.

Yet rather than let Castañeda go home to her family, prison officials arranged for ICE to take her into custody on the day of her release. She spent another year incarcerated at an ICE detention center in rural Georgia, fighting deportation.

Though Castañeda has been a legal U.S. resident since age 9, she had never become a citizen, and ICE officials argued that her conviction — even though it had been overturned — was grounds to remove her from the country. An immigration judge has since ruled she’s not deportable because she now has only a misdemeanor on her record, but ICE is appealing.

Mending the heartbreak

Castañeda, now 41, will testify at this morning’s state Assembly hearing, calling on lawmakers to pass the HOME Act and to allow people like herself, who’ve earned their release, to be able to return to their loved ones. (She not only had her conviction overturned, based on the change in the felony murder law, but also had her sentence commuted by Gov. Gavin Newsom and won early parole based on her rehabilitation.)

“I want them to see what they do to our families and to ourselves,” she said. “I want them to see the heartbreak.”

A middle-aged Latina woman with a black shirt sits on a couch and smiles to the camera.
Sandra Castañeda at home in Hawthorne, Los Angeles County, on Aug. 9, 2022, shortly after she was released from a year in immigration detention. Castañeda plans to testify to the state Assembly in favor of the HOME Act, a bill that would allow certain immigrants like herself to be protected from transfer to ICE upon their release from prison. (Tyche Hendricks/KQED)

Castañeda recalled her own sense of fear and powerlessness when, after a years-long effort to be released and the uncertainty over how to build a new life as a free woman, she learned that she faced an immigration hold.

“You’re already dealing with the roller coaster emotions of coming home. And then they tell you, ‘Oh, never mind, you’re going to go to ICE.’ So now I’ve got to go sit at this place wondering if I’m going to get deported,” she recalled. “That really puts more stress on people. And being in the detention center, you hear about these people committing suicide because they don’t want to go back to their country. It’s a scary situation.”

The HOME Act, AB 1306, would bar prisons from handing over to ICE those noncitizens who are being released as a result of several recent criminal justice reform laws passed by the Legislature and signed by Newsom or his predecessor, Jerry Brown. They include:

  • People eligible for compassionate release or parole because they are older or suffering severe medical conditions.
  • People eligible for early parole after serving a set amount of time because their crimes were committed in their youth.
  • People whose crimes were a direct result of having been victims of sexual assault or domestic violence.
  • People eligible for release because they demonstrate that racial bias affected their case.
  • People, like Castañeda, eligible for resentencing because they were originally convicted under the felony murder rule but did not kill anyone.

The bill would also protect people whose sentences were commuted by the governor. And, where the unsuccessful VISION Act also would have banned transfers from local jails to ICE, the HOME Act only focuses on restricting transfers by the California Department of Corrections and Rehabilitation, or CDCR.

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Immigration agents could still track people down once they are back in their communities, take them into custody and initiate deportation proceedings. But California authorities would be limiting their participation in the process. Illinois, Oregon and Washington, D.C., have already ended prison-to-ICE transfers.

Law enforcement concerns

A spokesperson for ICE said the agency does not comment on pending legislation. But on background, she added that immigration detainers, leading to transfers within the controlled environment of a prison or jail, are “a critical public safety tool” that conserves government resources and protects the public from the risk that the person will reoffend.

On average, nearly 1,600 people come out of state prison each year with an immigration detainer that leads to their transfer to ICE to be deported, according to an estimate by state Senate staff.

Police and sheriffs’ groups opposed the broader VISION Act in the last legislative session. In a joint statement, they said, “We are also not arguing that immigrants somehow pose any more threat than citizens or asking to involve immigration authorities in low-level offenses. However, there should be a point, in the most egregious cases, where we do not provide protections for dangerous persons from enforcement.”

A spokesperson for the Peace Officers Research Association of California said the group’s board had not yet considered its stance on the HOME Act, which generally would not shield people deemed “dangerous” from ICE, but he expected board members to take it up at their next meeting.

The VISION Act failed in the state Senate last year by three votes, with all Republicans and three Democrats voting against it, as well as nine Democrats who did not vote.

None of the three Senate Democrats who opposed the VISION Act — Susan Eggman, Steve Glazer and Bill Dodd — would comment on the HOME Act.

Ending double punishment

Carrillo, author of both the VISION Act and the HOME Act, noted that this year’s version is much more narrowly focused, and that she’s hopeful it will win widespread support with last year’s holdouts and newly elected lawmakers.

“At the end of the day, we are saying that the state of California will treat all people equally, regardless of where they were born,” she said. “We also want the Biden administration to acknowledge what we’re doing in the state of California and figure out a way in which ICE is not being used as a tool to further incarcerate immigrants.”

Angela Chan, an immigration expert at the San Francisco Public Defender’s office who helped craft the bill, said the Legislature overwhelmingly supported the recent criminal justice reforms with a recognition that excessive sentencing was harming Black and Latino communities — and she hoped they would see that turning immigrants over to ICE subjects them to a double punishment.

The bill “gets our legislative members and the governor to really think about these individuals that are being turned over to ICE as human beings, as people who have gone through a lot … domestic violence survivors, young refugees, elderly folks, people with medical conditions,” she said. “And [it’s cause] for them to think about the harm to both these individuals and to their families and communities, when we allow our state resources to turn them over to ICE once they’ve earned release.”

Castañeda took time off from her job in a reentry program run by Homeboy Industries to catch a ride from LA to the state Capitol on Monday with Tin Nguyen, whose life sentence also was commuted by Newsom and who is also scheduled to address the Assembly Public Safety Committee.

“I’m working, helping my community as much as I can,” said Castañeda, who hopes to study and become an immigration law paralegal. “It’s sad that they want to go after people like that. We messed up and we’re trying to give back and fix it and help other people. I get it that not everybody comes with that mentality, but a lot of us do … We had to work hard to be able to get a second chance.”

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