BILL ANALYSIS                                                                                                                                                                                                    Ó






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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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