BILL ANALYSIS Ó
SB 674
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Date of Hearing: July 14, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
674 (De León) - As Introduced February 27, 2015
SUMMARY: Requires agencies, upon the request of an immigrant
victim of crime, to certify victim helpfulness on the applicable
form so that the victim may apply for a U-visa to temporarily
live and work in the United States. Specifically, this bill:
1)Provides that upon the request of the victim or victim's
family member, a certifying official from a certifying entity
shall certify victim helpfulness on the Form I-918 Supplement
B certification, when the victim was a victim of a qualifying
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criminal activity and has been helpful, is being helpful, or
is likely to be helpful to the detection or investigation or
prosecution of that qualifying criminal activity.
2)States that in determining helpfulness, there is a 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 has not refused or failed to provide information and
assistance reasonably requested by law enforcement.
3)Requires a certifying official to fully complete and sign the
Form I-918 Supplement B certification and, regarding victim
helpfulness, include specific details about the nature of the
crime investigated or prosecuted and a detailed description of
the victim's helpfulness or likely helpfulness to the
detection or investigation or prosecution of the criminal
activity.
4)States that a certifying entity shall process an I-918
Supplement B certification within 90 days of request, unless
the non-citizen is in removal proceedings, in which case the
certification shall be processed within 14 days of request.
5)Specifies that a current investigation, the filing of charges,
and a prosecution or conviction are not required for the
victim to request and obtain the Form I-918 Supplement B
certification from a certifying official.
6)Provides that a certifying official may only withdraw the
certification if the victim refuses to provide information and
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assistance when reasonably requested.
7)Prohibits a certifying entity 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 victim or person
requesting the Form I-918 Supplement B certification.
8)Mandates a certifying entity that receives a request for a
Form I-918 Supplemental B certification to report to the
Legislature, on or before January 1, 2017, and annually
thereafter, the number of victims that requested Form I-918
Form B certifications from the entity, the number of those
certification forms that were signed, and the number that were
denied.
9)Defines a "certifying entity" to include any of the following:
a) A state or local law enforcement agency;
b) A prosecutor;
c) A judge;
d) Any other authority that has responsibility for the
detection or investigation or prosecution of a qualifying
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crime or criminal activity; or
e) Agencies that have criminal detection or investigative
jurisdiction in their respective areas of expertise,
including, but not limited to, child protective services,
the Department of Fair Employment and Housing, and the
Department of Industrial Relations.
10)States that for purposes of this bill, a "certifying
official" is 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-918 Supplement B certifications on behalf of that
agency;
c) A judge; or
d) Any other certifying official as defined in federal
regulations.
11)Provides the following list of "qualifying criminal
activity": rape; torture; human trafficking; incest; domestic
violence; sexual assault; abusive sexual conduct;
prostitution; sexual exploitation; female genital mutilation;
being held hostage; peonage; perjury; involuntary servitude;
slavery; kidnaping; abduction; unlawful criminal restraint;
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false imprisonment; blackmail; extortion; manslaughter;
murder; felonious assault; witness tampering; obstruction of
justice; fraud in foreign labor contracting; or stalking.
12)States that a "qualifying crime" includes criminal offenses
for which the nature and elements of the offenses are
substantially similar to the criminal activity described in
the list of "qualifying criminal activity", and the attempt,
conspiracy, or solicitation to commit any of those offenses.
EXISTING FEDERAL LAW:
1)Allows an immigrant who has been a victim of a crime to
receive a U-visa if the Secretary of Homeland Security
determines the following:
a) The petitioner has suffered substantial physical or
mental abuse as a result of having been a victim of
criminal activity as described;
b) The petitioner, of if the petitioner is under 16 years
of age, the petitioner's parent, possesses information
concerning the criminal activity;
c) The petitioner, or if the petitioner is under 16 years
of age, the petitioner's parent, has been helpful, is being
helpful, or is likely to be helpful to a Federal, State, or
local law enforcement official, to a Federal, State, or
local prosecutor, to a Federal or State judge, to the
Service, or to other Federal, State, or local authorities
investigating or prosecuting criminal activity as
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described;
d) The criminal activity violated the laws of the United
States or occurred in the United States (including in
Indian country and military installations) or the
territories and possessions of the United States; and,
e) The criminal activity is that involving one or more of
the following or any similar activity in violation of
Federal, State, or local criminal law: rape; torture;
trafficking; incest; domestic violence; sexual assault;
abusive sexual contact; prostitution; sexual exploitation;
stalking; female genital mutilation; being held hostage;
peonage; involuntary servitude; slave trade; kidnapping;
abduction; unlawful criminal restraint; false imprisonment;
blackmail; extortion; manslaughter; murder; felonious
assault; witness tampering; obstruction of justice;
perjury; fraud in foreign labor contracting; or attempt,
conspiracy, or solicitation to commit any of the above
mentioned crimes. (8 U.S.C. § 1011(a)(15)(U).)
FISCAL EFFECT: Unknown.
COMMENTS:
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1)Author's Statement: According to the author, "The Victim of
Crime Visa, also referred to as the U-Visa, is available to
immigrants who are victims of certain crimes committed in the
United States - rape, incest, sexual assault, torture, or
domestic violence, for example. The bearer of a U-Visa gets
relief from deportation and permission to work in the United
States.
"Federal immigration authorities make the determination of
whether a victim of crime qualifies for a U-Visa. However,
the State and local governments play an important role in this
process.
"In order for the victim to apply to the federal government for
the U-Visa, the victim must receive a certification from law
enforcement, a prosecutor, or a judicial officer. The
document certifies that the individual was a victim of a
qualifying crime. And, the certification must state that the
victim was helpful or likely helpful to the prosecution or
investigation of the crime.
"There are some local law enforcement agencies that do an
exemplary job granting certifications. For example, the
Oakland Police Department and L.A. Police Department.
"There are other law enforcement agencies - the Kern County
Sheriff, for example - that systematically deny certifications
on the basis of political views on immigration matters. They
are making the determination of whether one belongs in this
county or not, irrespective of the crime that has been
committed against an immigrant and irrespective of whether
that victim was helpful to law enforcement.
"This bill makes clear that all entities that can certify
victim helpfulness must certify victim helpfulness if the
victim was a victim of one of the qualifying crimes and the
victim was helpful or likely to be helpful to the prosecution
or investigation of the crime.
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"The Kern County Sheriff and other entities will no longer be
permitted to subjectively make immigration decisions. That is
for the federal government to do.
"Whether you are a victim of crime in Kern County or Alameda
County should not matter in terms of whether you obtain a
U-Visa. This bill brings equity to immigrant victims of
crime."
2)Background: "In 2000, Congress created the U-visa under the
Violence Against Women Act (VAWA) as a form of relief for
immigrant victims of crimes. The intent of Congress was: (1)
to strengthen the ability of law enforcement agencies to
detect, investigate and prosecute cases of domestic violence,
sexual assault, trafficking and other crimes; and (2) to offer
protection to victims of such crimes.<1> Congress recognized
that a victim's cooperation and assistance are essential to
the effective detection, investigation and prosecution of
crimes. However, where a victim fears deportation, s/he will
be unlikely to come forward to cooperate and assist in
investigative efforts. Without this cooperation victims and
entire communities are less safe. Thus, Congress provided a
specific avenue for immigrant crime victims to obtain lawful
immigration status and to create a shield of protection for
immigrant victims.
"To be eligible for a U-visa, the immigrant victim must meet
four statutory requirements and s/he must include a
certification from a certifying official (such as a judge) or
agency that s/he aided in the detection, investigation or
---------------------------
<1>
New Classification for Victims of Criminal Activity;
Eligibility for "U" Nonimmigrant Status, 72 Fed. Reg. 53,014.
53,015 (citing Battered Immigrant Women Protection Act (BIWPA) §
1513(a)(2)(A)).
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prosecution of a qualifying criminal activity.<2>
To meet the four statutory eligibility requirements for the
U-visa, the applicant must: (1) have suffered substantial
physical or mental abuse as a result of having been a victim
of certain criminal activity; (2) possess information
concerning such criminal activity; (3) have been helpful, is
being helpful, or is likely to be helpful in the investigation
or prosecution of a crime; and (4) have been the victim of a
criminal activity that occurred in the United States or
violated the laws of the United States.<3>
"A U-visa application must include a signed certification form
completed by a Federal, State or local qualifying official
(such as, but not limited to, a law enforcement officer,
prosecutor, or judge).<4> The certification must affirm the
immigrant victim's helpfulness in the detection, investigation
or prosecution of certain qualifying criminal activity.<5> The
certification does not confer any immigration status upon the
victim, but enables the victim to meet one of the eligibility
requirements as s/he submits the application to the Department
of Homeland Security (DHS). (U-visa Certification:
Information for Judges, Legal Momentum,
< http://niwaplibrary.wcl.american.edu/immigration/u-visa/tools/
--------------------------
<2> INA § 101(a)(15)(U), 8 U.S.C. § 1101(a)(15)(U) (outlines
four statutory requirements for U-visa eligibility and contains
nonexhaustive list of qualifying activities); INA § 214(p)(1), 8
U.S.C. § 1184(p)(1) (details certification requirement).
<3> INA § 101(a)(15)(U); 8 U.S.C. § 1101(a)(15)(U).
<4> INA § 214(p)(1), 8 U.S.C. § 1184(p)(1); 8 C.F.R. §
214.14(a)(3)(ii).
<5> INA § 214(p)(1), 8 U.S.C. § 1184(p)(1).
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judges/U-Visa-Judge-Q-A.pdf > (as of July 6, 2015).)
3)Uneven U-visa Certification Policies: According to an
investigation by Reuters news, there are wide disparities
among jurisdictions in how likely law enforcement is to
certify a victim.
"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 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.
"'There is a significant portion of the country where law
enforcement is not providing certifications,' said Gail
Pendleton, co-founder of ASISTA, which helps lawyers who work
with immigrant survivors of domestic violence and sexual
assault. 'That means that you have tens of thousands of
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victims of crimes like domestic violence and rape that are
just not getting help, and their perpetrators are not being
held accountable.'
"In a nationwide survey of advocates and attorneys in 2013,
researchers at the University of North Carolina School of Law
found that the U visa program 'is kind of like geography
roulette,' said Deborah Weissman, a UNC law professor.
. . .
"Interviews with attorneys across the country reveal wide
disparities in approaches to law enforcement certification.
Some agencies will only certify for open cases, others only
for cases that are closed. Others put further limits on the
type of crime or rule out victims whose injuries aren't deemed
severe enough.
"In some jurisdictions, law enforcement is split: Police may
refuse to certify crime victims, while prosecutors will sign
off, meaning that only those victims whose cases result in
arrest and prosecution can apply for the visa, though that is
not a requirement under the law. (Levine and Cook, Special
Report: U.S. visa program for crime victims is hit-or-miss
prospect (Oct. 21, 2014), Reuters
< http://www.reuters.com/article/2014/10/21/us-usa-immigration-u
visa-specialreport-idUSKCN0IA1H420141021 > (as of July 6,
2015).)
4)Argument in Support: According to the Immigrant Legal
Resource Center, "Victims of certain crimes may be eligible
for legal status through a U-Visa. However, a victim of crime
cannot apply to the federal government for a U-Visa without a
signed certification from law enforcement confirming that the
person was a victim of a qualifying crime and has been or is
likely to be helpful in the investigation or prosecution of
that criminal activity. This certification is called a Form
I-918 Supplement B certification. It is the federal
immigration authorities that determine whether the crime
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victim qualifies for the U-Visa. But, without a completed
certification, the application for the U-Visa is denied.
"A problem these victims are facing in California is that some
entities that can certify victim helpfulness refuse to even
consider signing Form I-918 Supplement B certifications.
Others place their own restrictions on which victims can
receive the certification. These refusals arbitrarily prevent
these victims from seeking relief to stay in this country.
This bill is necessary to bring consistent treatment and
equity to victims of crime and require that all certifying
entities certify victim helpfulness in a consistent and fair
manner."
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
California Attorneys for Criminal Justice
California Immigrant Policy Center
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California Partnership to End Domestic Violence
Central American Resource Center
Immigrant Legal Resource Center
Kamala Harris, Attorney General of California
Los Angeles Center for Law and Justice
YWCA of Glendale
Opposition
None
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744
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