BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 2027 (Quirk) - Victims of crime: nonimmigrant status
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|Version: August 1, 2016 |Policy Vote: PUB. S. 6 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 2027 would provide that upon the request of an
immigrant victim, a certifying official from a certifying
entity, as defined, is required to certify "victim cooperation"
on the Form I-914, Supplement B (Form I-914B), when the victim
was a victim of human trafficking and has been cooperative, is
being cooperative, or is likely to be cooperative to the
investigation or prosecution of human trafficking. This bill
would require certifying entities to fully complete and sign
specify timelines within which a certifying entity must process
a Form I-914B request and would require a certifying entity that
receives a request for a Form I-914B declaration to report to
the Legislature on or before January 1, 2018, and annually
thereafter, on the number of Form I-914B declarations requested,
signed, and denied.
Fiscal
Impact:
TCVAP benefits : Potentially significant future increase in
annual state costs (General Fund) for the Trafficking and
Crime Victims Assistance Program (TCVAP), which provides
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state-funded benefits (including cash assistance, services,
child care, and food benefits), to the extent a greater number
of victims are able to file formal T Visa applications.
Applicants are eligible for TCVAP when a T Visa application
has been, or is preparing to be, filed with USCIS and
eligibility continues until and unless a recipient's
application for a T Visa has been finally administratively
denied, the recipient has not applied for a T Visa within one
year of applying for state benefits, or the victim becomes
federally eligible. For every 25 to 50 new cases, annual costs
could range from $0.3 million to $0.6 million (General Fund)
for grants, services, and administration. Additionally, to the
extent existing TCVAP cases remain eligible for program
benefits for a longer period of time due to this measure,
annual costs would increase cumulatively each year.
Form I-914 declaration process : Potential costs to state and
local agencies defined as certifying entities to implement the
expedited process, including completing, signing, and
processing Forms I-914B within specified timelines. To the
extent the new requirements are determined to place a higher
level of service on local agencies than required under federal
law, local agency expenditures could qualify as a reimbursable
state mandate (General Fund).
Annual report : Likely minor costs to state and local agencies
acting as certifying entities to compile and submit the annual
report to the Legislature. To the extent local agency
expenditures qualify as a reimbursable state mandate, agencies
could only claim reimbursement of costs incurred if $1,000 or
more (General Fund).
State agency certifying entities : Minor ongoing impact to the
Department of Industrial Relations and the Department of
Justice, as these agencies are already conducting this process
for U Visa applicants. The CDCR is projected to incur minor,
if any, costs should they be required to act as a certifying
entity.
Background: Existing federal law provides for T nonimmigrant status, which
is set aside for victims (and their qualifying family members)
of human trafficking who meet certain eligibility requirements
and cooperate with law enforcement or government officials'
reasonable requests for assistance in the investigation or
prosecution of human trafficking. Congress created the T
nonimmigrant visa (T Visa) with the passage of the Victims of
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Trafficking and Violence Protection Act in October 2000. The
legislation was intended to strengthen the ability of law
enforcement agencies to investigate and prosecute cases of
domestic violence, sexual assault, human trafficking, and other
crimes, while also protecting victims of crimes who have
suffered substantial mental or physical abuse due to the crime.
The T Visa extends critical protections to immigrant crime
victims by providing temporary lawful status as a "T
nonimmigrant" for up to four years, work authorization, and an
opportunity to adjust to lawful permanent resident status after
three years. T Visa issuances for principal applicants are
capped at 5,000 annually. However, to date, the annual cap has
never been reached and visas remain available to applicants who
qualify.
To apply (petition) for a T Visa from the U.S. Citizenship and
Immigration Services (USCIS), a petitioner is required to submit
a Form I-914, Petition for T Nonimmigrant Status (Form I-914) to
request temporary immigration benefits as a victim of a severe
form of human trafficking, and are strongly encouraged to submit
a Form I-914 Supplement B, Declaration of Law Enforcement
Officer for Victim of Trafficking in Persons (Form I-914B) from
a certifying agency, which must be a federal, state, or local
law enforcement agency, prosecutor, or authority, or federal or
state judge, authorized to certify that the petitioner
submitting the Form I-914 is a victim of human trafficking and
is, has been, or is likely to be cooperative in the
investigation or prosecution of that criminal activity. The Form
I-914B serves as the primary evidence that the applicant is or
has been a victim of human trafficking and that the applicant
has complied with reasonable requests from law enforcement.
Although a completed Form I-914B is not required to apply for a
T Visa, the federal instructions for the T Visa indicate that
submission of the I-914B is strongly advised, as the form
demonstrates that the applicant has complied with any reasonable
requests from federal, state, or local law enforcement in the
investigation or prosecution of the trafficking crime of which
the applicant was a victim. This bill creates a rebuttable
presumption that when specified factors are met, a victim or
victim's family member shall have their Form I-914B completed
and processed to facilitate the application for a T Visa.
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Proposed Law:
This bill would provide that upon the request of the victim or
the victim's family member, a certifying official from a
certifying entity shall certify victim cooperation on the Form
I-914 Supplement B (Form I-914B) declaration, when the victim
was a victim of human trafficking and has been cooperative, is
being cooperative or is likely to be cooperative to the
investigation or prosecution of human trafficking. This bill:
Provides that for the purposes of determining cooperation
there is rebuttable presumption that a victim is cooperative,
has been cooperative, or is likely to be cooperative to the
investigation or prosecution of human trafficking, if the
victim has not refused or failed to provide information and
assistance reasonably requested by the law enforcement agency.
Requires a certifying official to fully complete and sign the
Form I-914B declaration and, regarding victim cooperation,
include specific details about the nature of the crime
investigated or prosecuted and a detailed description of the
victim's cooperation or likely cooperation to the detection,
investigation, or prosecution of the criminal activity.
Requires a certifying entity to process a Form I-914B
declaration within 90 days of the request unless the
noncitizen is in removal proceedings in which case the
certification shall be processed within 14 days of request.
Provides that a current investigation, filing of charges, or a
prosecution or conviction are not required for the victim to
request and obtain a Form I-914B declaration from a certifying
official.
Provides that a certifying official may only withdraw the
certification if the victim refuses to provide information and
assistance when reasonably requested.
Specifies that a certifying entity is prohibited from
disclosing the immigration status of a victim or person
requesting the Form I-914B declaration, except to comply with
federal law or legal process, to allow prosecutors to comply
with their constitutional obligations to provide material
evidence to defendants in pending criminal proceedings
pursuant to Brady v. Maryland (1963) U.S. 83, or if authorized
by the victim or person requesting the declaration.
Provides for a certifying entity that receives a request for a
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Form I-914B declaration to report to the Legislature on or
before January 1, 2018, and annually thereafter the number of
victims that requested Form I-914B declarations from the
entity, the number of those that were signed and the number
that were denied.
Defines "certifying entity" as:
o A state or local law enforcement agency;
o A prosecutor;
o A judge;
o The Department of Industrial Relations;
o Any other state or local government agencies
that have criminal, civil, or administrative
investigative or prosecutorial authority relating to
human trafficking.
Defines "certifying official" as any of the following:
o The head of the certifying entity;
o A person in a supervisory role who has been
designated to issue Form I-914 Supplement B
certification;
o A judge;
o Any other certifying official as defined under
federal law.
Provides that "human trafficking" means "severe forms of
trafficking in persons" pursuant to federal law and
includes either of the following:
o Sex trafficking, as specified.
o 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.
Provides that "human trafficking" also includes criminal
offenses for which the nature and elements of the offenses
are substantially similar to the criminal activity
described above, and the attempt, conspiracy, or
solicitation to commit any of those offenses.
Related
Legislation: SB 674 (de Leon) Chapter 721/2015 requires that
upon the request of a victim or victim's family member, a
certifying entity to certify "victim helpfulness" on the Form
I-918 Supplement B (Form I-918B), when the victim was a victim
of a qualifying criminal activity and has been helpful, is being
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helpful, or is likely to be helpful to the detection or
investigation or prosecution of that criminal activity.
Staff
Comments: This bill will potentially result in a greater number
of Form I-914B declarations completed, enabling a greater number
of victims to submit formal T Visa applications with supporting
information to USCIS for consideration and approval. As a
result, a greater number of victims and their family members may
become eligible for state-funded TCVAP benefits. Additionally, a
greater number of victims and their family members who are
currently receiving TCVAP benefits may remain eligible for TCVAP
benefits for a longer period of time.
The TCVAP, which is administered by the Department of Social
Services (DSS), was authorized by SB 1569 (Chapter 672/ 2006)
and became effective on January 1, 2007. This program assists
eligible non-citizen victims of human trafficking and domestic
violence or other serious crimes by providing them with
state-funded benefits and services. Under TCVAP, eligible
trafficking (T Visa) and serious crime (U Visa) victims may
receive benefits and services under the following state-funded
programs: TCVAP Cash Assistance (for single adults or families
without children), California Food Assistance Program (CFAP),
Cash Assistance Program for Immigrants (CAPI), CalWORKs, and
In-Home Supportive Services (IHSS). The TCVAP-eligible persons
may also receive state-funded Medi-Cal that is administered by
the Department of Health Care Services (DHCS). The 2016 May
Revision estimates nearly 1,900 crime victims (both U and T
Visa) served under the TCVAP cash assistance and CalWORKs
programs at a cost of $10.6 million in FY 2016-17.
According to the DSS implementing instructions for the TCVAP
(ACL 06-60, December 21, 2006), victims are eligible when a T
Visa application has been, or is being prepared to be, filed
with USCIS, or if a T Visa has been granted.
The TCVAP requires victims of human trafficking to file for a T
nonimmigrant visa with the appropriate federal agency as the
first step to apply for federal status. This is necessary to
demonstrate that they are taking steps to meet the conditions
for federal eligibility in order to qualify for state public
social services. To remain eligible for benefits and services,
victims of trafficking must show evidence that they have applied
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for the T visa within one year from the date of application for
state public social services.
In determining potential eligibility for these applicants,
county welfare agencies are required to verify that an
application for a T Visa has been filed (which could include a
copy of the Form I-914B declaration). Eligibility for
state-funded services continue until and unless the recipient's
application for a T Visa has been finally administratively
denied, the victim does not submit an application for a T Visa
within one year of applying for state benefits, or the applicant
becomes eligible for federal benefits. While the magnitude of
the potential increase is unknown, for every 25 to 50 new cases,
annual costs could range between $0.3 million and $0.6 million
(General Fund). To the extent the number of cases impacted is
greater or fewer, annual costs would be impacted accordingly.
Additionally, to the extent existing TCVAP cases remain eligible
for program benefits for a longer period of time due to this
measure, annual costs would increase cumulatively each year.
USCIS data indicates over 2,200 T Visa applications received in
Federal Fiscal Year 2015 and a current backlog of pending T Visa
applications of about 1,600 nationwide as of March 2016. As a
result, the TCVAP caseload is estimated to cumulatively increase
as eligibility extends until an applicant receives a final
administrative denial.
According to the U.S. Department of Homeland Security (DHS)
publication, U and T Visa Law Enforcement Resource Guide, "The T
visa declaration is not conclusive evidence that the applicant
meets these eligibility requirements, as only USCIS can make
this determination. In addition, by signing a T visa
declaration, the certifying agency, official or judge is not
sponsoring or endorsing the victim for a T visa. USCIS considers
the T visa declaration as one part of the evidence in the T visa
application. USCIS also conducts a full background check and, in
considering each T visa application and the applicant's
credibility, examines the totality of the evidence and the
circumstances of each case. Signing a declaration is at the
certifying agency's discretion which should be exercised on a
case-by-case basis consistent with U.S. laws and regulations,
and the policies and procedures outlined in this Guide, as well
as internal policies of the certifying agency . (p. 11)"
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This bill requires certifying entities to fully complete and
sign the Form I-914B declaration, as well as meet specified
processing timelines of within 90 days or within 14 days of a
request if the noncitizen is in removal proceedings. The
potential increase in workload would vary by agency dependent on
the volume of requests received. To the extent this requirement
is determined to place a higher level of service on local
agencies than required under federal law, specifically with
regard to the mandated timelines, local agency expenditures
could potentially qualify as a reimbursable state mandate
(General Fund).
Staff
notes, as drafted, it is unclear whether a certifying entity
would be required to complete a Form I-914B for a qualified
victim regardless of whether the certifying entity is
responsible for the investigation or prosecution of the
qualifying criminal activity. An informational notice from the
Los Angeles City Attorney's Office notes that in order for the
City Attorney's Office to sign the form, the case in which the
person was a victim must have been handled by the City
Attorney's Office. Statements from the notice:
"The case in which you were a victim must have been handled by
the Los Angeles City Attorney's Office. That means that the law
enforcement agency that responded to the crime was Los Angeles
Police Department. If your case was handled by the Sheriff's
Department or by any other police department, then this is not
the correct office for you to ask for help."
"If your client was helpful to the Los Angeles Police Department
and not the Los Angeles City Attorney's Office, then your
request should be made directly to the Los Angeles Police
Department. This Office will not certify based on helpfulness to
the police department alone."
To the extent the provisions of this bill require local agencies
to change current policies and practices, any workload and
associated costs that are determined to place a higher level of
service on local agencies could potentially qualify as a
reimbursable state mandate (General Fund).
Given the scope of information required to be reported, state
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and local agencies acting as certifying entities are estimated
to incur minor costs to compile and submit the annual report to
the Legislature. To the extent local agency expenditures qualify
as a reimbursable state mandate, agencies could only claim
reimbursement for costs incurred of $1,000 or more (General
Fund).
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