BILL ANALYSIS Ó
AB 2027
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Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2027
(Quirk) - As Amended March 31, 2016
SUBJECT: VICTIMS OF CRIME: NONIMMIGRANT STATUS
KEY ISSUE: in order to help immigrant victims of human
trafficking to remain in the united states to assist in
investigation and prosecution of human trafficking crimes,
should state or local law officials be required to certify the
cooperation of the victim in his or her application for a "T"
VIsa when the victim has generally been cooperative, as
specfied?
SYNOPSIS
In 2000, Congress passed the Victims of Trafficking and Violence
Prevention Act (VTVPA) in order to strengthen the ability of law
enforcement agencies to investigate and prosecute serious crimes
and human trafficking, while offering protections to victims of
such crimes without the immediate risk of being removed from the
country. As part of the Act, Congress created two new visa
programs (the U-Visa and the T-visa) to allow victims of certain
crimes to apply to the U.S. Citizenship and Immigration Services
(USCIS) to obtain temporary nonimmigrant status. The U-Visa is
open to non- U.S. citizens who are the victims of serious
qualifying crimes (e.g. sexual assault, kidnapping, rape, and
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torture), while the T-Visa is open to non-citizen victims of sex
trafficking and labor trafficking, crimes defined by federal
law. Both programs require the victim applicant to provide
evidence of certain eligibility requirements and in the case, of
the U-Visa, a certification that the victim has been helpful to
the investigation or prosecution of the crime. In the case of an
application for a T-visa, USCIS gives significant weight (but
does not require) a certification of the victim's cooperation
with the investigation or prosecution when considering his or
her application.
Last year, the Legislature enacted SB 674 (De Leon), Ch. 721,
Stats. 2015, which assists victims applying for a U-Visa by
expediting the process of obtaining the necessary certification
of helpfulness from the appropriate certifying official handling
the case. This bill is closely modeled after SB 674 and seeks
to enact similar provisions with respect to the T-Visa and its
accompanying certification of cooperation with the prosecution
or investigation of the human trafficking crime or crimes.
Among other things, the bill creates a rebuttable presumption
that the victim is cooperative, has been cooperative, or is
likely to be cooperative if the victim has not refused or failed
to provide information and assistance reasonably requested by
law enforcement. The bill is supported by the Police Chiefs
Association and the ACLU, who contend that the bill advances the
goals of the federal T visa program, while also increasing
public safety at the local level by ensuring that law
enforcement agencies can investigate and prosecute human
traffickers. The bill is opposed by the California State
Sheriffs' Association because they believe the rebuttable
presumption of cooperation goes too far in limiting their
discretion to make this determination. This bill previously
passed the Assembly Public Safety Committee by a 6-0 vote.
SUMMARY: Requires specified state or local officials to certify
the cooperation of a victim of human trafficking in an
investigation or prosecution of those trafficking crimes, when
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the victim is or has been cooperative, as specified, and
requests such certification on his or her application for a
special "T" visa to temporarily remain in the U.S.
Specifically, this bill:
1)Provides that upon a victim or victim's family member's
request, a certifying official from a certifying entity shall
certify victim cooperation on the Form I-914 Supplement B
declaration, when the victim was a victim of human trafficking
and has been cooperative, is being cooperative, or is likely
to be cooperative with the investigation or prosecution of
that crime.
2)Creates a rebuttable presumption that the victim is
cooperative, has been cooperative, or is likely to be
cooperative if the victim has not refused or failed to provide
information and assistance reasonably requested by law
enforcement.
3)Requires the certifying official to fully complete and sign
the Form I-914 Supplemental B declaration, and regarding
victim cooperation, include specific details about the nature
of the crime investigated or prosecuted, and a detailed
description of such cooperation or likely cooperation.
4)Requires the certifying agency to process the I-914
Supplemental B declaration within 90 days, unless the person
is in removal proceedings, in which case it must be processed
within 14 days of request.
5)Provides that a current investigation, filed charges, or a
prosecution, or conviction are not required for the victim to
request and obtain the Form I-914 Supplemental B declaration
from a certifying official.
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6)Authorizes a certifying official to withdraw the certification
only if the victim refuses to provide information and
assistance when reasonably requested.
7)Prohibits a certifying entity from disclosing the immigrant
status of a victim or person requesting the Form I-914
Supplemental B declaration, except to comply with federal law
or legal process, or if authorized by the victim or person
requesting the declaration.
8)Requires a certifying entity that receives a request for a
Form I-914 Supplemental B declaration to report to the
Legislature, on or before January 1, 2018 and annually
thereafter, the following information: (a) the number of
victims that requested declarations from the entity; (b) the
number of declarations that were signed; and (c) the number
that were denied.
9)Defines "certifying entity" to mean any of the following: (a)
a state or local law enforcement agency; (b) a prosecutor; (c)
a judge; (d) the State Department of Labor; or (e) any state
or local government agency that has criminal, civil, or
administrative investigative or prosecutorial authority
relating to human trafficking.
EXISTING LAW:
1)Pursuant to the federal Victims of Trafficking and Violence
Prevention Act (VTVPA), specifies certain minimum criteria
that must all be true for a victim to be considered eligible
for a T visa, including:
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a) The victim is or was a victim of a severe form of
trafficking in persons (which may include sex or labor
trafficking), as defined by federal law.
b) The victim is in the United States, American Samoa, the
Commonwealth of the Northern Mariana Islands or at a U.S.
port of entry due to trafficking;
c) The victim has complied with any reasonable request from
a law enforcement agency for assistance in the
investigation or prosecution of human trafficking; and,
d) The victim would suffer extreme hardship involving
unusual and severe harm if removed from the United States.
(8 U.S.C. § 1101 (a)(15)(T).)
2)Pursuant to the federal VTVPA, allows eligible victims to
temporarily remain and work in the U.S., generally for a
period of four years, while having the ongoing duty to
cooperate with reasonable requests by law enforcement for
assistance in the investigation or prosecution of human
trafficking. (8 U.S.C. § 1101 (a)(15)(T).)
3)Requires certifying agencies, upon the request of an immigrant
victim of crime, to certify victim helpfulness on the
applicable form so that he or she may apply for a U-visa
(similar to a T-Visa for victims of qualifying crimes other
than human trafficking). (Penal Code Section 679.10 (e).)
4)Creates a rebuttable presumption that an immigrant victim is
helpful, has been helpful, or is likely to be helpful, if the
victim has not refused or failed to provide information and
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assistance reasonably requested by law enforcement. (Penal
Code Section 679.10 (f).)
5)Mandates certifying entities to complete the certification
within 90 days of the request, except in cases where the
applicant is in immigration removal proceedings, in which case
the certification must be completed within 14 days of the
request. (Penal Code Section 679.10 (h).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In 2000, Congress passed the Victims of Trafficking
and Violence Prevention Act (VTVPA) in order to strengthen the
ability of law enforcement agencies to investigate and prosecute
serious crimes and trafficking in persons, while offering
protections to victims of such crimes without the immediate risk
of being removed from the country. (U and T Visa Law
Enforcement Resource Guide, Department of Homeland Security,
p.4.) As part of the Act, Congress created two new visa
programs (the U-Visa and the T-visa) to allow victims of certain
crimes to apply to the U.S. Citizenship and Immigration Services
(USCIS) within the Department of Homeland Security (DHS) to
obtain temporary nonimmigrant status. The U-Visa is open to
non-U.S. citizens who are the victims of serious qualifying
crimes (e.g. sexual assault, kidnapping, rape, and torture),
while the T-Visa is open to victims of sex trafficking and labor
trafficking, as defined by federal law. Both programs require
the victim applicant to provide evidence of certain eligibility
requirements and in the case, of the U-Visa, a certification
that the victim has been helpful to the investigation or
prosecution of the crime.
Last year, the Legislature enacted SB 674 (De Leon), Ch. 721,
Stats. 2015, which assists victims applying for a U-Visa by
expediting the process of obtaining the necessary certification
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of helpfulness from the appropriate certifying official in the
case (which varies depending on the particular investigation or
prosecution being conducted). This bill is closely modeled
after SB 674 and seeks to enact similar provisions with respect
to the T-Visa and its accompanying certification of
"cooperation" with the prosecution or investigation of human
trafficking.
Background on human trafficking. Under this bill, "human
trafficking" is defined as "severe forms of trafficking in
persons" pursuant to 22 U.S.C. 7102 and includes either of the
following: (a)sex trafficking, in which a commercial sex act is
induced by force, fraud, or coercion, or in which the person
induced to perform such act has not attained 18 years of age; or
(b) the recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to
involuntary servitude, peonage, debt bondage, or slavery.
According to the author:
The United States government estimates that each year up to
50,000 people are trafficked illegally into the United
States against their will, mostly women and children who
are brought as sex slaves. Human trafficking is a form of
modern-day slavery in which traffickers typically lure
individuals with false promises of employment and a better
life. Victims of severe forms of human trafficking are
provided relief under U.S. immigration law by the Victims
of Trafficking in Persons nonimmigrant visa, also known as
'T-visa.' The T-Visa provides trafficking victims from
foreign countries temporary legal status, with an
opportunity to apply for permanent residency and access to
federal benefits if they cooperate with law enforcement in
the investigations of their traffickers.
Information about the T-Visa program, according to the
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Department of Homeland Security. According to the U and T Visa
Law Enforcement Resource Guide, issued by the Department of
Homeland Security, the T visa allows eligible victims to
temporarily remain and work in the U.S., generally for four
years. While in T nonimmigrant status, the victim has an
ongoing duty to cooperate with law enforcement's reasonable
requests for assistance in the investigation or prosecution of
human trafficking. If certain conditions are met, an individual
with T nonimmigrant status may apply for adjustment to lawful
permanent resident status (i.e., apply for a green card in the
United States) after three years in the United States, or upon
completion of the investigation or prosecution, whichever occurs
earlier. (Id. at pp. 9-10.)
To be eligible for a T-Visa, the immigrant victim must meet four
statutory requirements, showing that he or she: (1) is or was a
victim of a severe form or trafficking in person, as defined by
federal law; (2) is in the United States or at a port of entry
due to trafficking; (3) has complied with any reasonable request
from law enforcement for assistance in the investigation or
prosecution of the crime; and (4) would suffer extreme hardship
if removed from the United States. (Id. at p. 9.)
The T-visa declaration at issue in this bill is supplementary
evidence of a victim's assistance to law enforcement. Although
the declaration is not required for the application (in contrast
to the U-visa where certification of cooperation is required),
the U.S. Citizenship and Immigration Services gives significant
weight to the declaration when considering the T-visa
application. (Id. at pp. 10-11.)
Determining cooperation with authorities; rebuttable
presumption. This bill provides that, upon request by a victim
or the victim's family member, the certifying official shall
certify victim cooperation on the declaration (also known as the
Form I-914 Supplement B declaration), when the victim is a
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victim of human trafficking and has been cooperative, is being
cooperative, or is likely to be cooperative with the
investigation or prosecution of that crime. With respect to
determining cooperation for this purpose, the bill also creates
a rebuttable presumption that the victim is cooperative, has
been cooperative, or is likely to be cooperative if the victim
has not refused or failed to provide information and assistance
reasonably requested by law enforcement.
Recent media reports have examined certification rates for
applications for U-visas. One article indicates that while
appropriate agencies in some jurisdictions have been supportive
of immigrant victims and have readily certified the declaration
form when the immigrant victims have been helpful, agencies in
other jurisdictions have shown a reluctance to sign these
certification forms.
In some cities, police and prosecutors readily verify that
an undocumented crime victim cooperated; in others, they
stonewall. From 2009 through May 2014, law enforcement in
New York City verified 1,151 crime victims, according to
figures provided by federal immigration authorities in
response to public records requests by Reuters. Meanwhile,
police and prosecutors verified 4,585 crime victims in Los
Angeles, a city with less than half of New York's
population. Oakland, California, has less than 5 percent of
New York's population, yet law enforcement there verified
2,992 immigrants during the same period - more than twice
as many. Sacramento, California, has a slightly higher
population than Oakland, but verified just 300 crime
victims. [?] Wide variations in the numbers of
certifications among jurisdictions of similar size suggest
that thousands of victims of violent crimes who have
embraced the offer of a U Visa haven't got one. ("Special
Report: U.S. visa program for crime victims is hit-or-miss
prospect." Reuters (October 21, 2014).)
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The California State Sheriffs' Association opposes this bill
because they believe the rebuttable presumption of cooperation
goes too far in limiting their discretion to make this
determination. They write, "AB 2027 contains a rebuttable
presumption that effectively states that a victim is being
cooperative or is likely to be cooperative unless and until he
or she is not cooperative, limiting law enforcement discretion.
The determination should be the sole province of the law
enforcement entity being asked to sign the certification at
issue here and only with regard to the nature of the victim's
cooperation."
As enacted last year by SB 674, California law already
establishes a rebuttable presumption of "helpfulness" with
respect to a victim applying for a U-visa. (Penal Code Section
679.10 (f).) In addressing this topic, the DHS resource guide
states:
USCIS regulation requires that the U petitioner has been,
is being, or is likely to be helpful in the detection,
investigation, prosecution, conviction, or sentencing of
the criminal activity. This means that since the initiation
of cooperation, the victim has not unreasonably refused to
cooperate or failed to provide information and assistance
(emphasis added) reasonably requested by law enforcement or
prosecution in connection with a criminal investigation or
prosecution. USCIS will not provide a U visa to those
petitioners who, after initially cooperating with the
certifying official, refuse to provide continuing
assistance when reasonably requested. (Id. at p. 18.)
Although the above passage is in reference to the U-visa, given
that the question of cooperation or helpfulness is so similar,
it appears that the rebuttable presumption created under this
bill is consistent with DHS's own interpretation of what
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constitutes helpfulness or cooperation. A certifying official
may rebut the presumption of cooperation by simply finding that
the applicant unreasonably refused to cooperate or failed to
provide information and assistance. Moreover, if the certifying
official is not sure, the declaration form provides an
opportunity for the official to provide information to USCIS
about the extent of the victim's assistance in the investigation
or prosecution, and it is up to USCIS to ultimately decide
whether the victim meets the requirements. (Id.)
Other measures to assist and protect applicants for the T-visa.
This bill also contains a number of other measures intended to
streamline the process for applying for a T-visa. For example,
the bill requires the certifying agency to process the I-914
Supplemental B declaration within 90 days, unless the person is
in removal proceedings, in which case it must be processed
within 14 days of request. Additionally, the bill provides that
a current investigation, filed charges, or a prosecution, or
conviction are not required for the victim to request and obtain
the Form I-914 Supplemental B declaration from a certifying
official. These requirements seek to ensure that victims can
have their applications completed and certified in a timely
manner so they can be submitted to and considered by USCIS as
soon as possible, without being subject to prolonged or
uncertain delays while waiting for a certifying agency to act.
Importantly, the bill also prohibits a certifying entity from
disclosing the immigrant status of a victim or person who
requests the Form I-914 Supplemental B declaration, except to
comply with federal law or legal process, or if authorized by
the victim or person requesting the declaration. This provision
is needed to protect the person's immigration status from being
revealed unnecessarily, which can have a prejudicial impact on a
person with respect to their ability to live and work in certain
circumstances.
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ARGUMENTS IN SUPPORT: According to the American Civil Liberties
Union: "AB 2027 advances the goals of the federal T visa program
by streamlining the existing visa process for a vulnerable
population that has been the victim of atrocious crimes, while
increasing public safety at the local level by ensuring that law
enforcement agencies can investigate and prosecute human
traffickers."
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union (ACLU)
California Police Chiefs Association
Opposition
California State Sheriffs' Association
Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334
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