A fight over the proposed immigration policies of the Donald Trump administration is brewing in California, but how state lawmakers will push against the incoming administration is still unclear.
“State leaders will defend your due process rights and aggressively avail ourselves of any and all tools to prevent an unconscionable over-reach by a Trump administration in California,” Senate Leader Kevin de León said in a statement this week. “We will protect our people and prosperity.”
What is clear: California has spent more than a decade expanding the rights of undocumented people in the state by creating integration – rather than immigration – policy reforms. That includes issuing driver's licenses, in-state tuition and even health care benefits to certain undocumented immigrants.
"There is much work to be done," however, says Ronald Coleman, the government affairs manager for the California Immigration Policy Center's -- a non-partisan, non-profit that supports pro-immigrant public policy in the state.
How many undocumented criminal immigrants are there?
In a recent 60 minutes interview, President-elect Trump said he will deport “people that are criminal and have criminal records, gang members, drug dealers” who are here illegally, which he estimated could be up to 3 million people. But Trump’s estimation has been widely contested.
According to PolitiFact, Trump’s figure references a 2011-2013 Department of Homeland Security report that said the U.S. Immigration and Customs Enforcement (ICE) estimated about 1.9 million people in the country fall under the category of “removable criminal aliens.”
The catch: a legal immigrant can also be deported if they are convicted for certain crimes. So, the 1.9 million DHS figure is taking into account legal and illegal immigrants. Another figure for the amount of undocumented immigrants with criminal records comes from the Migration Policy Institute, which estimates there are about 820,000.
California is home to more undocumented immigrants than any other state, according to a 2011 Public Policy Institute report. These people make up about 7 percent of the state’s population (about 2.6 million people) and 9 percent of the state’s workforce.
There are also competing numbers on how many undocumented California immigrants have been convicted of crimes.
The Sacramento Bee determined about 8.4 percent of the people booked into the state’s jails in a month were “criminal aliens,” based off a 2015 jail survey by the California Board of State and Community Corrections. That same year, the California Department of Finance estimated undocumented immigrants make up about 12.7 percent of the inmate population.
Regardless of numbers, what can lawmakers actually do to stop Trump?
Sen. de León highlighted due process rights in his statement against Trump. State lawmakers could consider providing state-funded attorneys for undocumented immigrants.
Unlike citizen defendants who are facing a criminal case, immigrants do not have a right to counsel. The American Immigration Council estimates 37 percent of immigrants nationally had legal representation in their removal cases from 2007-2012.
Coleman said California could move to provide attorneys for immigrants, and there is precedent of such a move. New York in 2013 began providing publicly funded representation to people in removal proceedings who cannot afford their own counsel, under the New York Immigrant Family Unit Program.
The annual cost to fully pay for the New York program is about $7.4 million, but supporters say it would also save government and private employers about $5.9 million each year.
California lawmakers have also funded lawyers for immigrants in the recent years. Gov. Jerry Brown in 2014 approved a law that provided $3 million to fund representation for unaccompanied Central American immigrant children crossing the border to flee gang threats and violence.
"That’s certainly a place where we could continue that kind of support, in the legal services realm, to make sure our immigrant community has the resources necessary to make sure their rights are protected vigorously," Assembly member Rob Bonta, D-Alameda, said.
State laws on how police agencies coordinate with ICE
Before Trump ascended to the White House, lawmakers in California were already pushing against tougher federal deportation rules.
Starting in 2014, state law began limiting how long local law enforcement can hold immigrants in custody when they are arrested for certain crimes. The Trust Act does allow police and sheriff's departments to notify ICE when they have an inmate in jail for a serious or violent crime, and they are allowed to let ICE know when the inmate's release will be.
But lawmakers this year revisited the issue -- approving another law dubbed the TRUTH (Transparent Review of Unjust Transfers and Holds) Act, authored by Asm. Bonta, which requires law enforcement also inform immigrants in custody of their rights, in their native language, before they can be interviewed by ICE.
The individual in custody must also be give a written consent form -- translated in multiple languages -- explaining the reason for the interview, informing them that the process is voluntary and that the person may decline the interview.
"The Trust act… helped prevent immigration detentions of local law enforcement," Bonta said. "The TRUTH Act built on that this year with a notice of right – letting Californians know they are under no obligation to speak with ICE unless they have counsel."
According to an Associated Press analysis, after the Trust Act went into effect the number of undocumented immigrant detainees transferred to ICE custody dropped 53 percent in northern California during 2014.
Will other California immigrant rights laws be threatened under Trump?
The Golden State was the first state to allow immigrants to attain legal driver’s licenses, which went into effect in 2015. That won’t change under Trump, but Coleman said state lawmakers could look toward enhancing protections of license data -- how it is collected and shared with the federal government.
An expansion of healthcare for certain immigrants in California could likely be stopped in its tracks. Lawmakers this year passed a law that allows for undocumented children to qualify for the Affordable Care Act. Replacing the ACA has long been a priority for Republicans in Congress, and with all branches of government now in their control, it's likely California's new law would become void.
California also allows immigrant students to qualify for in-state tuition based on the amount of time they have spent in the public K-12 school system, similar laws exist in at least 18 states according to the National Conference of State Legislatures. Trump hasn't identified in-state tuition as an immigration policy priority, so it's unclear whether he would leave this up to states' discretion
While on the campaign trail, Trump did say he will unwind President Barack Obama's executive actions and orders, which concerns students who filed for the Deferred Childhood Childhood Arrivals policy. This allows immigrants who have been in the United States since childhood to "come out of the shadows" and apply for a renewable two-year work permit, if the individual meets certain conditions.
Trump has not said if he would target DACA or its 750,000 recipients. University students are now pressuring their administrators to make their schools "sanctuary campuses" that prevent cooperation with ICE and deportation officials.
In California, Cal State Chancellor Timothy White has directed the university system's 23 campuses to "not enter into agreements with state or local law enforcement agencies, Homeland Security or any other federal department for the enforcement of federal immigration law."
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