BILL ANALYSIS                                                                                                                                                                                                    Ó



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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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