Immigration Resources

• State and local law enforcement agencies are prohibited, without exception, from honoring immigration “hold” or detainer requests. This means local law enforcement may no longer detain a defendant 48 hours beyond the termination of criminal custody to better enable immigration authorities to apprehend that person. There are no longer any TRUST Act exceptions for holds.
• Law enforcement agencies are prohibited from responding to immigration notification requests, meaning requests to supply information about a defendant’s release date -- unless that person comes within a TRUST Act exception.
• Local Law enforcement agencies may not facilitate the transfer of an individual to immigration custody-- unless that person comes within a TRUST Act exception.
• Law enforcement agencies are prohibited from inquiring into an individual’s immigration status.
• Law enforcement agencies are prohibited from sharing personal information about individuals (e.g., work and home addresses) with immigration -- unless the information is publicly available.
• TRUTH Act protections, which require law enforcement to obtain written consent from a person in custody before an ICE interview, have been extended to the California Department of Corrections and Rehabilitation (CDCR).
• Law enforcement agencies are prohibited from using immigration agents as translators
• Law enforcement agencies are prohibited from performing the functions of an immigration officer (whether through a 287(g) agreement or otherwise). Local law enforcement agencies are prohibited from making arrests on civil immigration warrants.
• Local law enforcement agencies are prohibited from arresting people for the federal criminal offense of unlawful reentry under 8 U.S.C. § 1326(a), unless reentry is detected during an unrelated law enforcement activity and the person was previously convicted of a state or federal offense that meets the immigration definition of an aggravated felony.
• Law enforcement agencies are prohibited from providing immigration agents exclusive office space.
• NOTE: In Sonoma County, if a Defendant is not protected by the provisions of SB54, the Sonoma County Sheriff's Office WILL cooperate with ICE by providing release dates from the jail!

When ICE agents arrest someone in public (or after stopping a car), it typically happens quickly. They may call your name out loud and ask you to confirm your name and then detain you.

• Before you say your name or anything else, ask, “AM I FREE TO GO?”
  • If they say YES: Say, “I don’t want to answer your questions” or “I’d rather not speak with you right now.” Walk away.
  • If they say NO: Use your right to remain silent! Say, “I want to use my right not to answer questions” and then “I want to speak to a lawyer.”
• If ICE starts to search inside your pockets or belongings, say, “I do not consent to a search.”
• DON’T LIE or show false documents. Don’t flee or resist arrest.
• Don’t answer questions about your immigration status or where you were born. They will use any information you provide against you. Do not hand over any foreign documents such as a passport, consular IDs, or expired visas.
• If you are in Criminal Court for a court date, ask to speak to your public defender before they take you away.

Not always! Beware: ICE agents often pretend to be police and say they want to talk to you about identity theft or an ongoing investigation.

Can ICE agents enter my home to arrest me?

If ICE agents do not have a warrant signed by a judge, they cannot enter the home without permission from an adult. Opening the door when they knock does not give them permission to enter your home.

• Find out if they are from DHS or ICE.
• Try to stay calm. Be polite. Don’t lie. Say “I don’t want to talk to you right now.”
• Politely ask to see a warrant signed by a judge and to slip it under the door or hold it up to your window so you can carefully inspect it. If they don’t have one, decline to let them in. If it's a search warrant, make sure it is for your address; if not, you don’t have to open.
• If they are looking for someone else, ask them to leave contact information. You don’t have to tell them where to find the person and you should not lie.

• Tell them if there are children or other vulnerable residents at home.
• Ask them to step outside unless they have a warrant signed by a judge.
• If they came inside without your permission, tell them “I do not consent to you being in my home. Please leave.”
• If they start to search rooms or items in your home, tell them “I do not consent to your search.”
• If ICE is arresting you, tell them if you have medical issues or need to arrange for childcare.

• You have the right to remain silent.
• You have the right to speak to a lawyer.
• DO NOT LIE. It can only hurt you in the future.
• You do NOT have to share any information about where you were born, what your immigration status is, or your criminal record. Ask to speak to a lawyer instead of answering questions.
• You do NOT have to give them your consular documents or passport unless they have a warrant from a judge asking for your foreign identity documents.
• You do not have to sign anything.

Penal Code § 1473.7 allows you to vacate a California conviction or sentence after you are no longer in criminal custody or on probation. Unlike an expungement, a successful § 1473.7 motion will vacate the conviction or sentence for immigration purposes because it is deemed legally invalid (i.e. not based on your rehabilitation). However, if you are no longer in active removal proceedings, you will likely need to reopen your immigration proceedings for your vacatur under § 1473.7 to have effect. There are two ways to qualify.

First, you can qualify if:

• Your lawyer did not tell you about the immigration consequences of your plea;
• Your lawyer did not defend you from those consequences by plea bargaining for an immigration-safe alternative; or
• You yourself did not understand the immigration consequences.

Second, you can qualify if you have new evidence of actual innocence. Such evidence might include:

• Results of new scientific tests, such as DNA testing;
• Another person admitting to the crime; or
• The discovery of facts that call key evidence into question — such as widespread fraud or contamination by the police or a crime lab.

You can file any time after you are released from custody (and are no longer on probation or parole). The motion will be considered timely if it is filed without undue delay.

The California Racial Justice Act (RJA) prohibits the state from seeking or obtaining a criminal convictions based upon race, ethnicity or national origin. Currently, it only applies to final judgments rendered after January 1, 2020.

The RJA makes it possible for a person charged or convicted of a crime to challenge racial bias in their case on the following basis:

• A judge, attorney, law enforcement officer, expert witness, or juror exhibited bias or animus toward a defendant in the form of blatantly racist statements (inside or outside of court);
• A judge, attorney, law enforcement officer, expert witness, or juror used racially discriminatory language or exhibited bias toward a defendant during proceedings (even if coded language);
• Statistical evidence shows systemic bias in the charging and sentencing that relates to a defendant’s charges or sentence.

If a court finds an RJA violation before judgment has been entered, it can declare a mistrial, empanel a new jury, dismiss enhancements, special circumstances, and special allegations, or reduce one or more charges. If a court finds a RJA violation after judgment, it can vacate the conviction or sentence and order new proceedings, modify the judgment, or vacate and impose a new sentence—none of which can result in a sentence greater than the original.

As of January 1, 2022, SB 483 made the repeal of sentencing enhancements adding three years of incarceration for prior drug offenses and one year for each prior felony jail terms retroactive. In practice, SB 483 now authorizes courts to recall and resentence individuals currently serving time under these enhancements.

To be eligible, an individual must have a drug enhancement under H&SC § 11370.2 or a prison prior enhancement under PC § 667.5(b) as a part of their sentence. 

The California Legislature recently amended Penal Code 1170.91 to apply to veterans currently serving a sentence for a felony conviction. Under Penal Code 1170.91(b)(1), a person who was a member of the United States military, and who may be suffering from a mental illness as a result of his or her military service, may petition for a recall of sentence. The requirements which must be met are:

(1) The circumstances of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems, was a result of the person’s military service;

(2) The mental illness that resulted from his or her military service was not considered as a factor in mitigation at the time of sentencing; and

(3) The person was sentenced prior to January 1, 2015.

If you were convicted of certain California felony crimes, you have a chance of getting them reduced to a misdemeanor. In California, there are several “wobbler” crimes—meaning a criminal case can be filed as either a misdemeanor or felony offense.  Under Penal Code § 17(b), a “wobbler” can be changed by a judge from a felony crime to a misdemeanor crime if you are eligible. In order to be eligible for reduction, you must have been:

• Convicted of a “wobbler;”
• Granted probation (including paying all fines); and
• Not sentenced to serve time in a California state prison or received a suspended sentence.

Only “wobbler” offenses are eligible for reduction, not traditional felonies. Some common examples of California “wobbler” offenses include: PC § 459 – Burglary, PC § 487(a) – Grand theft, PC § 245 – Assault with a deadly weapon, PC § 422 – Criminal threats.

Importantly, reductions under § 17(b) can be helpful for immigration purposes (depending on the offense) but usually require a reduction order to specify the new sentence carries a “maximum potential sentence of 364 days.”