BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2027       Hearing Date:    June 28, 2016    
          
           ----------------------------------------------------------------- 
          |Author:    |Quirk                                                |
          |-----------+-----------------------------------------------------|
          |Version:   |March 31, 2016                                       |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|ML                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


                  Subject:  Victims of Crime:  Nonimmigrant Status



          HISTORY

          Source:   Author

          Prior Legislation:SB 1242 (Lara) - pending in Assembly
                         SB 674 (De León) - Ch. 721, Stats 2015

          Support:  American Civil Liberties Union of California;  
                    California Police Chiefs Association Inc.

          Opposition:California State Sheriffs' Association

          Assembly Floor Vote:                 73 - 0


          PURPOSE

          The purpose of this bill is to require, upon the request of an  
          immigrant victim of human trafficking, a certifying agency to  
          confirm victim cooperation on the applicable form so that the  
          victim may apply for a T-Visa to temporarily live and work in  
          the United States.  

          Existing federal law allows an immigrant to receive a T-visa if  
          the Secretary of Homeland Security determines the following:








          AB 2027  (Quirk )                                         PageB  
          of?
          

             a)   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)   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)   Has complied with any reasonable request from a law  
               enforcement agency for assistance in the investigation or  
               prosecution of human trafficking; and,

             d)   Would suffer extreme hardship involving unusual and  
               severe harm if removed from the United States.  (8 U.S.C. §  
               1101  (a)(15)(T).)





          Existing state law 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.  (Penal Code, § 679.10, subd. (e).)

          Existing state law 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 assistance reasonably requested by law  
          enforcement.  (Penal Code, § 679.10, subd. (f).)

          Existing state law 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, § 679.10, subd. (h).)

          This bill 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  









          AB 2027  (Quirk )                                         PageC  
          of?
          
          crime.

          This bill creates a rebuttable presumption of cooperation if the  
          victim has not refused or failed to provide information and  
          assistance reasonably requested by law enforcement.

          This bill requires the certifying official to fully complete and  
          sign the Form I-914 Supplemental B declaration, and regarding  
          cooperation, include specific details about the nature of the  
          crime investigated or prosecuted, and a detailed description of  
          such cooperation, or likely cooperation.

          This bill requires the certifying agency to process the  
          declaration within 90 days, unless the person is in removal  
          proceedings, in which case it must be processed within 14 days  
          of request.

          This bill states 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.  

          This bill limits the ability of a certifying official to  
          withdraw the certification to instances where the victim refuses  
          to provide information and assistance when reasonably requested.

          This bill 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 upon authorization of the person requesting  
          the declaration.

          This bill mandates a certifying agency that receives a request  
          for a Form I-914 Supplemental B declaration to report to the  
          Legislature beginning January 1, 2018, and annually thereafter,  
          the following information:

             a)   The number of victims that requested the declarations;
             b)   The number of declarations that were signed; and,
             c)   The number of denials.


          This bill defines a "certifying entity" as any of the following:

             a)   A state or local law enforcement agency;









          AB 2027  (Quirk )                                         PageD  
          of?
          
             b)   A prosecutor;
             c)    A judge;
             d)   The State Department of Labor; or
             e)   State or local government agencies that have criminal,  
               civil, or administrative investigative or prosecutorial  
               authority relating to human trafficking.

          This bill defines a "certifying official" as any of the  
          following:

             a)   The head of the certifying entity;
             b)   A person in a supervisory role who has been specifically  
               designated by the head of the certifying entity to issue  
               Form I-914 Supplement B declarations on behalf of that  
               agency;
             c)   A judge; or 
             d)   Any other certifying official defined under specified  
               federal regulations.

          This bill defines "human trafficking" as "severe forms of  
          trafficking in persons" pursuant to specified federal law and  
          which 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; and,
             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.

          This bill states that "human trafficking" also includes criminal  
          offenses for which the nature and elements of the crime are  
          substantially similar to the criminal activity described above,  
          as well as an attempt, conspiracy, or solicitation to commit  
          those offenses. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  









          AB 2027  (Quirk )                                         PageE  
          of?
          
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:










          AB 2027  (Quirk )                                         PageF  
          of?
          
              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for This Bill

          According to the author:

            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".  
            This status allows victims of human trafficking to remain  
            in the United States to assist in investigations or  
            prosecutions of human trafficking violators.

            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.

            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. 

            By stabilizing their status in the United States,  
            immigration relief can be critical to providing victims  









          AB 2027  (Quirk )                                         PageG  
          of?
          
            of crime a greater sense of security that also make it  
            easier for them to assist with law enforcement and  
            prosecutorial efforts.

          2.  Background - T Visas

          The U and T Visa Law Enforcement Resource Guide from the  
          Department of Homeland Security<1>  explains some of the  
          important background and history of T-Visas:

            The Victims of Trafficking and Violence Prevention Act (VTVPA)  
            of 2000 was enacted 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.  Congress, in the VTVPA, created the  
            T nonimmigrant status ("T visa") program out of recognition  
            that human trafficking victims without legal status may  
            otherwise be reluctant to help in the investigation or  
            prosecution of this type of criminal activity.  Human  
            trafficking, also known as trafficking in persons, is a form  
            of modern-day slavery, in which traffickers lure individuals  
            with false promises of employment and a better life.   
            Immigrants can be particularly vulnerable to human trafficking  
            due to a variety of factors, including but not limited to:  
            language barriers, separation from family and friends, lack of  
            understanding of U.S. laws, fear of deportation, and cultural  
            differences.  Accordingly, under this law, Congress sought not  
            only to prosecute perpetrators of crimes committed against  
            immigrants, but also to strengthen relations between law  
            enforcement and immigrant communities.<2> 

            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  
            --------------------------

          <1>  
          https://www.dhs.gov/sites/default/files/publications/PM_15-4344%2 
          0U%20and%20T%20Visa%20Law%20Enforcement%20Resource%20Guide%2011.p 
          df

          <2> Id. at p. 9








          AB 2027  (Quirk )                                         PageH  
          of?
          
            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.<3>

            To be eligible for a T-Visa, the immigrant victim must meet  
            four statutory requirements:  (1) he or she 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.<4> 

            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  
            (contrast U-visa where a certification of cooperation is  
            required), the U.S. Citizenship and Immigration Services gives  
            significant weight to the declaration when considering the  
            T-visa application.<5>

          AB 2027 would require that an official from a state or local  
          entity certify "victim cooperation" on the Form I-914 Supplement  
          B, when the requester was a victim of criminal activity and has  
          been cooperative, is being cooperative, or is likely to be  
          cooperative regarding the investigation or prosecution of that  
          qualifying criminal activity.

          3.  Argument in Support

          The American Civil Liberties Union states in part: 

            AB 2027 complements existing law by: requiring, upon  
            request, that an official from a state or local entity  
            certify 'victim cooperation' on the supplemental form  
            ------------------------

          <3> Id. at pp. 9-10

          <4> Id. at p. 9

          <5> Id. at pp. 10-11








          AB 2027  (Quirk )                                         PageI  
          of?
          
            when specified criteria are satisfied; establishing a  
            rebuttable presumption of survivor cooperation; requiring  
            the certifying entity to process the supplemental form  
            within 90 days of the request and requiring the  
            certifying entity to report annually to the Legislature  
            the number of survivors requesting certification and the  
            number of supplemental forms that were signed and denied.

            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.

          4.  Argument in Opposition

          The California State Sheriffs' Association states in part:

            Victim cooperation can be extremely valuable when  
            investigating criminal matters.  That being said, 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. This  
            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.



                                      -- END -