BILL ANALYSIS Ó SB 674 Page A 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 SB 674 Page B 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 SB 674 Page C 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 SB 674 Page D 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; SB 674 Page E 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 SB 674 Page F 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: SB 674 Page G 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. SB 674 Page H "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)). SB 674 Page I 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). SB 674 Page J 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 SB 674 Page K 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 SB 674 Page L 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 SB 674 Page M 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 SB 674 Page N