BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 674 Hearing Date: April 21, 2015
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|Author: |De León |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Victims of Crime: Nonimmigrant Status
HISTORY
Source: Author
Prior Legislation:None
Support: Los Angeles Center for Law and Justice; American Civil
Liberties Union; California Attorneys for Criminal
Justice; California Immigrant Policy Center; The
Immigrant Legal Resource Center; The Central American
Resource Center; American Federation of State, County
and Municipal; YWCA of Glendale; California
Partnership to End Domestic Violence
Opposition:None known
PURPOSE
The purpose of this bill is to create a rebuttable presumption
that when certain factors are met a victim or victim's family
member shall have their Form I-918 supplement B certified so
that he or she can apply for a U Visa to stay in the United
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States.
Existing federal law allows an immigrant who has been a victim
of a crime to apply for a U Visa when he or she has been helpful
to the investigation or prosecution of the criminal activity.
This bill provides that upon the request of the victim or the
victim's family member a certifying official from a certifying
entity shall certify victim helpfulness on the Form I-918
supplement B when the victim was a victim of a qualifying
criminal activity and has been helpful, is being helpful or is
likely to be helpful in the detection or investigation or
prosecution of that qualifying criminal activity.
This bill provides that for the purposes of determining
helpfulness there is rebuttable presumption that a victim is
helpful, has been helpful, or is likely to be helpful to the
detection or investigation or prosecution of that qualifying
criminal activity, if the victim was not refused or failed to
provide information and assistance reasonably requested by the
law enforcement.
This bill provides that a certifying entity shall process a Form
I-918 Supplement B certification 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.
This bill provides that a current investigation, filing of
charges and a prosecution or conviction are not required for the
victim to request and obtain a Form I-918 Supplement B
certification from a certifying official.
This bill provides that a certifying official may only withdraw
the certification if the victim refuses to provide information
and assistance when reasonably requested.
This bill provides that a certifying entity is prohibited from
disclosing the immigration status of a victim or person
requesting the Form I-918 Supplement B certification, except to
comply with federal law or legal process or if authorized by the
person requesting the certification.
This bill provides for a certifying entity that receives a
request for a Form I-918 Supplement B certification to report to
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the Legislature annually beginning on January 1, 2017, the
number of victims that requested Form I-918 Supplement B
certifications from the entity, the number of those that were
signed and the number that were denied.
This bill defines certifying entity as:
A state or local law enforcement agency;
A prosecutor;
A judge;
Any other authority that has responsibility for the
detection or investigation or prosecution of a qualifying
crime or criminal activity; and,
Agencies that have criminal detection or investigative
jurisdiction in the respective areas including but not
limited to, child protective services, the Department of
Fair Employment and Housing, and the Department of
Industrial Relations.
This bill defines certifying official as any of the following:
The head of the certifying entity;
A person in a supervisory role who has been designated
to issue Form I-918 Supplement B certification;
A judge; and,
Any other certifying official as defined under federal
law.
This bill defines qualifying criminal activity as including, but
not limited to, specified crimes.
This bill defines qualifying crimes as criminal offenses for
which the nature and elements are substantially similar to the
listed crimes and the attempt, conspiracy or solicitation to
commit any of those offenses.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
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
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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 February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 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).
While significant gains have been made in reducing the prison
population, the state now 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:
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
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The goal of SB 674, The Immigrant Victims of Crime
Equity Act is to ensure the maximum amount of immigrant
victims of crime in California have the opportunity to
apply for the federal U-Visa when the immigrant was a
victim of a qualifying crime and has been helpful or is
likely to be helpful in the investigation or
prosecution of that crime.
SB 674 creates equity in the granting of the
certifications of victim helpfulness that are essential
to the crime victim's U-Visa application filed with the
USCIS. The Immigrant Victim of Crimes Equity Act
requires certifying entities to certify victim
helpfulness on the Form I-918 Supplement B
certification, upon the request of the victim or
victim's family member, when: (1) the victim was a
victim of a qualifying criminal activity and (2) has
been helpful, is being helpful, or is likely to be
helpful to the detection or investigation or
prosecution of that qualifying criminal activity.
Under the bill, the certifying entity must also process
the certification within a time limit and include
details about victim helpfulness.
2. U Visa
In October 2000, Congress, as part of the reauthorization of the
Violence Against Women Act, created the U Visa to provide
immigrant crime victims an avenue to obtain lawful immigration
status and thus encourage cooperation with law enforcement by
undocumented victims of crime. In order to qualify for a U
Visa: the applicant must have suffered substantial physical or
mental abuse as a result of having been a victim of certain
qualifying activity; the applicant must possess information
concerning such criminal activity; the applicant must be
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helpful, have been helpful, or likely to be helpful in the
investigation or prosecution of a crime; and the criminal
activity must have occurred in the U.S. or violated the state or
federal law of the United States.
3. Certification
In order to apply for a U Visa, the qualified immigrant victim
must obtain a certification of a helpfulness from a law
enforcement official, prosecutor, judge or federal or state
agency authorized to detect investigate or prosecute any of the
criminal activities listed in the U Visa statute. This
certification form is called a Form I-918. While in some
jurisdictions the appropriate agencies have been supportive of
immigrant victims and have readily signed From I-918 when the
immigrant victims have been helpful, 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.
The federal data do not include the number of
immigrants whose requests for verification are ignored
or denied by the police. Nor is it possible to
determine how many of those would have ultimately been
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rejected anyway because the applicant would not
qualify under the program. Victims of misdemeanor
assault, for instance, do not qualify.
But 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.
(Levine and Cooke, Special Report: U.S. visa program
for crime victims is hit-or-miss prospect Reuters
October 21, 2014)
This bill provides that when a victim, or victim's family
member, requests a certifying official to certify the Form I-918
there is a rebuttable presumption that the victim is helpful,
has been helpful or is likely to be helpful in the investigation
if the victim has not refused to provide information and
assistance as requested by law enforcement. The bill would also
require the form be filled out completely and within 90 days of
the request, unless the victim is in removal proceedings in
which case the form must be filled out within 14 days.
The supporters of this bill state that this rebuttable
presumption is necessary to bring fairness and equity to victims
of crime who should not be treated differently just because they
were victimized in a county where officials are reluctant to
help non-citizen victims.
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