BILL ANALYSIS Ó AB 2027 Page 1 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 AB 2027 Page 2 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 AB 2027 Page 3 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. AB 2027 Page 4 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: AB 2027 Page 5 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 AB 2027 Page 6 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 AB 2027 Page 7 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 AB 2027 Page 8 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 AB 2027 Page 9 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).) AB 2027 Page 10 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 AB 2027 Page 11 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. AB 2027 Page 12 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 AB 2027 Page 13