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 -