Existing federal law provides a Form I-918, Petition for U Nonimmigrant Status (Form I-918) to request temporary immigration benefits for a person who is a victim of certain qualifying criminal activity. Existing federal law also provides a form for certifying that a person submitting a Form I-918 is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that criminal activity (Form I-918 Supplement B).

Existing state law establishes certain rights of victims and witnesses of crimes, including, among others, to be notified and to appear at all sentencing proceedings, upon request, to be notified and to appear at parole eligibility hearings, and, for certain offenses, to be notified when a convicted defendant had been ordered placed on probation.

This bill would require, upon request, that a certifying official from a certifying entity certify, as specified, victim helpfulness on the Form I-918 Supplement B, when the requester was a victim of a qualifying criminal activity and has been helpful, is being helpful, or is likely to be helpful to the detection, investigation, or prosecution of that qualifying criminal activity. The bill would define certifying entity, certifying official, and the qualifying criminal activity for those purposes. A certifying entity would include, among others, local law enforcement agencies and child protective services agencies. The bill would establish for purposes of determining helpfulness, a rebuttable presumption that a victim is helpful, has been helpful, or is likely to be helpful to the detection, 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. The bill would require the certifying entity to process a Form I-918 Supplement B certification within 90 days of request, unless the noncitizen is in removal proceedings, in which case the certification is required to be processed within 14 days of request. The bill would require a certifying entity that receives a request for a Form I-918 Supplement 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 Supplement B certifications from the entity, the number of those certification forms that were signed, and the number that were denied.

By imposing additional duties on local government agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing federal law provides a Form I-918, Petition for U Nonimmigrant Status (Form I-918) to request temporary immigration benefits for a person who is a victim of certain qualifying criminal activity. Existing federal law also provides a form for certifying that a person submitting a Form I-918 is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that criminal activity (Form I-918 Supplement B).

Existing state law establishes certain rights of victims and witnesses of crimes, including, among others, to be notified and to appear at all sentencing proceedings, upon request, to be notified and to appear at parole eligibility hearings, and, for certain offenses, to be notified when a convicted defendant had been ordered placed on probation.

This bill would require, upon request, that a certifying official from a certifying entity certify, as specified, victim helpfulness on the Form I-918 Supplement B, when the requester was a victim of a qualifying criminal activity and has been helpful, is being helpful, or is likely to be helpful to the detection, investigation, or prosecution of that qualifying criminal activity. The bill would define certifying entity, certifying official, and the qualifying criminal activity for those purposes. A certifying entity would include, among others, local law enforcement agencies and child protective services agencies. The bill would establish for purposes of determining helpfulness, a rebuttable presumption that a victim is helpful, has been helpful, or is likely to be helpful to the detection, 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. The bill would require the certifying entity to process a Form I-918 Supplement B certification within 90 days of request, unless the noncitizen is in removal proceedings, in which case the certification is required to be processed within 14 days of request. The bill would require a certifying entity that receives a request for a Form I-918 Supplement 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 Supplement B certifications from the entity, the number of those certification forms that were signed, and the number that were denied.

By imposing additional duties on local government agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing federal law provides a Form I-918, Petition for U Nonimmigrant Status (Form I-918) to request temporary immigration benefits for a person who is a victim of certain qualifying criminal activity. Existing federal law also provides a form for certifying that a person submitting a Form I-918 is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that criminal activity (Form I-918 Supplement B).

Existing state law establishes certain rights of victims and witnesses of crimes, including, among others, to be notified and to appear at all sentencing proceedings, upon request, to be notified and to appear at parole eligibility hearings, and, for certain offenses, to be notified when a convicted defendant had been ordered placed on probation.

This bill would require, upon request, that a certifying official from a certifying entity certify, as specified, victim helpfulness on the Form I-918 Supplement B, when the requester was a victim of a qualifying criminal activity and has been helpful, is being helpful, or is likely to be helpful to the detection, investigation, or prosecution of that qualifying criminal activity. The bill would define certifying entity, certifying official, and the qualifying criminal activity for those purposes. A certifying entity would include, among others, local law enforcement agencies and child protective services agencies. The bill would establish for purposes of determining helpfulness, a rebuttable presumption that a victim is helpful, has been helpful, or is likely to be helpful to the detection, 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. The bill would require the certifying entity to process a Form I-918 Supplement B certification within 90 days of request, unless the noncitizen is in removal proceedings, in which case the certification is required to be processed within 14 days of request. The bill would require a certifying entity that receives a request for a Form I-918 Supplement 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.

By imposing additional duties on local government agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

SENATE THIRD READING

STR Bill Id:SB 674

Author:(De León)

As Introduced Ver:February 27, 2015

Majority vote

SENATE VOTE: 38-0

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 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 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:

   1. A state or local law enforcement agency;

   2. A prosecutor;

   3. A judge;

   4. Any other authority that has responsibility for the detection or investigation or prosecution of a qualifying crime or criminal activity; or

   5. 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:

    1. The head of the certifying entity;

    2. 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;

    3. A judge; or

    4. 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; 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: Allows an immigrant who has been a victim of a specified crime to receive a U-visa if the Secretary of Homeland Security makes a determination based on certain factors.

FISCAL EFFECT: According to the Assembly Appropriations Committee, moderate local reimbursable state mandated costs in excess of $300,000 by establishing a time-frame for certifying entities to process Form I-918 Supplement B requests, and for local certifying entities to report annually to the Legislature.

During a six-year period, annual certifications provided by the Cities of Los Angeles and Oakland were 764 and 500, respectively. If the cost to provide the certification were $25, the reimbursable mandate to these two cities would be $31,600. There are 58 counties and 482 cities and each of them has at least one "agency" that qualifies as a certifying agency. It is reasonable to assume that the number of certifications statewide would be at least ten times those of the Cities of Los Angeles and Oakland combined. The reporting requirement reimbursable costs will be minor

Mandating compliance with federal law is not a reimbursable mandate. However, federal law does not impose a timeframe, nor does it require an annual report.

COMMENTS: 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.

"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."

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0001619

Date of Hearing: August 19, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

SBPCA Bill Id:SB 674

Author:(De León) – As Introduced Ver:February 27, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires specified agencies, upon the request of an immigrant victim of specified crimes, to certify within 90 days of the request, the victim's helpfulness on the applicable form (Form I-918 Supplement B certification) so that the victim may apply for a U-visa to temporarily live and work in the United States. The certifying entity is required to submit a specified annual report to the Legislature before January 1, 2017, and annually thereafter.

FISCAL EFFECT:

Moderate local reimbursable state mandated costs in excess of $300,000 by establishing a time-frame for certifying entities to process Form I-918 Supplement B requests, and for local certifying entities to report annually to the Legislature.

During a six-year period, annual certifications provided by the cities of Los Angeles and Oakland were 764 and 500, respectively. If the cost to provide the certification were $25, the reimbursable mandate to these two cities would be $31,600. There are 58 counties and 482 cities and each of them has at least one "agency" that qualifies as a certifying agency. It is reasonable to assume that the number of certifications statewide would be at least ten times those of the cities of Los Angeles and Oakland combined. The reporting requirement reimbursable costs will be minor.

Mandating compliance with federal law is not a reimbursable mandate. However, federal law does not impose a timeframe, nor does it require an annual report.

COMMENTS:

1. Purpose. 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, 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, Form I-918 Supplement B, 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.
   
   According to the author, there are some local law enforcement agencies that do an exemplary job granting certifications. But there are other law enforcement agencies that systematically deny certifications on the basis of political views on immigration matters. Effectively, these agencies 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.

SB 674 makes clear all entities that can certify victim helpfulness, and that they must certify within 90 days of the request the victim's helpfulness, if the victim was a victim of one of the qualifying crimes. SB 674 specifies a 14-day time frame if the victim is in deportation proceedings.

The "certifying entity includes any of the following:

1. A state or local law enforcement agency;

2. A prosecutor;

3. A judge;

4. Any other authority that has responsibility for the detection or investigation or prosecution of a qualifying crime or criminal activity; or

5. 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.

2. 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 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."
   
   

Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081

Date of Hearing: July 14, 2015

Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

SBPCA Bill Id:SB 674

Author:(De León) – As Introduced Ver: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 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 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:
   
   

   1. A state or local law enforcement agency;
      
      

   2. A prosecutor;

3. A judge;
   
   

4. Any other authority that has responsibility for the detection or investigation or prosecution of a qualifying crime or criminal activity; or
   
   

5. 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.
   
   

1. States that for purposes of this bill, a "certifying official" is any of the following:
   
   

   1. The head of the certifying entity;
      
      

   2. 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;
      
      

   3. A judge; or
      
      

   4. Any other certifying official as defined in federal regulations.
      
      

2. 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; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; fraud in foreign labor contracting; or stalking.
   
   

3. 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:
   
   

   1. The petitioner has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity as described;
      
      

   2. The petitioner, of if the petitioner is under 16 years of age, the petitioner's parent, possesses information concerning the criminal activity;
      
      

   3. 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 described;
      
      

   4. 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,
      
      

   5. 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:

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.

"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 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/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 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-uvisa-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 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

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

 THIRD READING  

Bill No: SB 674

Author: De León (D)

Introduced: 2/27/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/21/15

AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/28/15

AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza

NOES: Nielsen

SUBJECT: Victims of crime: nonimmigrant status

SOURCE: Author

DIGEST: This bill creates 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 States.

ANALYSIS:

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:

1. 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.

2. 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 has not refused or failed to provide information and assistance reasonably requested by the law enforcement.

3. 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.

4. 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.

5. Provides that a certifying official may only withdraw the certification if the victim refuses to provide information and assistance when reasonably requested.

6. 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.

7. Provides for a certifying entity that receives a request for a Form I-918 Supplement B certification to report to 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.

8. 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.

9. 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.

10. Defines qualifying criminal activity as including, but not limited to, specified crimes.

11. 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.

Background

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 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.

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 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.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee analysis:

• TCVAP benefits: Potentially significant future increase in annual state costs (General Fund) for the Trafficking and Crime Victims Assistance Program (TCVAP), which provides 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 U Visa applications. Applicants are eligible for TCVAP when a U Visa application has been filed with USCIS, and eligibility continues until and unless a recipient’s application for a U Visa has been finally administratively denied. For every 100 new cases, annual costs could range from $0.7 million to $1.6 million (General Fund).

• Form I-918B certification process: Potential future cost pressure on certifying entities to implement the process, including but not limited to the specified timelines within which to process requests. 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 impact to the Department of Fair Employment and Housing, the Department of Industrial Relations, and the Department of Justice.

SUPPORT: (Verified 5/29/15)

ACLU

AFSCME

California Attorneys for Criminal Justice

California Immigrant Policy Center

California Partnership to End Domestic Violence

The Central American Resource Center

The Immigrant Legal Resource Center

Los Angeles Center for Law and Justice

YWCA of Glendale;

OPPOSITION: (Verified 5/29/15)

None received

ARGUMENTS IN SUPPORT:

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.

Prepared by: Mary Kennedy / PUB. S. /

5/30/15 16:03:12

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 674 (De León) - Victims of crime: nonimmigrant status

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 674 would provide that upon the request of a victim or victim’s family member, a certifying official from a certifying entity, as defined, is required 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 helpful, or is likely to be helpful to the detection or investigation or prosecution of that criminal activity. This bill would specify timelines within which a certifying entity must process a Form I-918B request and would require a certifying entity that receives a request for a Form I-918B certification to report to the Legislature on or before January 1, 2017, and annually thereafter, on the number of Form I-918B certifications 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 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 U Visa applications. Applicants are eligible for TCVAP when a U Visa application has been filed with USCIS, and eligibility continues until and unless a recipient’s application for a U Visa has been finally administratively denied. For every 100 new cases, annual costs could range from $0.7 million to $1.6 million (General Fund).

• Form I-918B certification process: Potential future cost pressure on certifying entities to implement the process, including but not limited to the specified timelines within which to process requests. 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 impact to the Department of Fair Employment and Housing, the Department of Industrial Relations, and the Department of Justice.

Background:

Existing federal law provides for U nonimmigrant status, which is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Congress created the U nonimmigrant visa (U Visa) with the passage of the Victims of 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 U Visa extends critical protections to immigrant crime victims by providing temporary lawful status as a “U nonimmigrant” for up to four years, work authorization, and an opportunity to adjust to lawful permanent resident status.

To apply (petition) for a U Visa from the U.S. Citizenship and Immigration Services (USCIS), a petitioner must submit a Form I-918, Petition for U Nonimmigrant Status (Form I-918) to request temporary immigration benefits as a victim of certain qualifying criminal activity, as well as obtain a certification on the Form I-918 Supplement B, U Nonimmigrant Status Certification (Form I-918B) 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 a certify that the petitioner submitting the Form I-918 is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that criminal activity.

Without a completed Form I-918B, a U Visa application is not considered complete. This bill creates a rebuttable presumption that when specified factors are met, a victim or victim’s family member shall have their Form I-918B certified to enable application for a U Visa.

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 helpfulness on the Form I-918B 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.

• Provides that a certifying entity shall process a Form I-918B 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.

• 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-918B certification 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-918B certification, except to comply with federal law or legal process or if authorized by the person requesting the certification.

• Provides for a certifying entity that receives a request for a Form I-918B certification to report to the Legislature annually beginning on January 1, 2017, the number of victims that requested Form I-918B certifications from the entity, the number of those that were signed and the number that were denied.

• 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.

• 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;

  • Any other certifying official as defined under federal law.

Related Legislation:

None applicable.

Staff Comments:

This bill will potentially result in a greater number of Form I-918B certifications completed, enabling a greater number of victims to submit formal U Visa applications to USCIS for consideration. As a result, a greater number of victims and their family members may become eligible for state-funded TCVAP benefits.

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). Data from the DSS indicates over 5,600 crime victims (under U Visa) served under the TCVAP cash assistance and CalWORKs programs between July-December 2014.

According to the DSS implementing instructions for the TCVAP (ACL 06-60, December 21, 2006), victims are eligible when a U Visa application has been filed with USCIS, or if a U Visa has been granted. In determining potential eligibility for these applicants, county welfare agencies are required to verify that an application for a U Visa has been filed (which would include a copy of the Form I-918B certification). Eligibility for state-funded services continue until and unless the recipient’s application for a U Visa has been finally administratively denied. While the magnitude of the potential increase is unknown, for every 100 new cases, annual costs could range between $0.7 million and $1.6 million (General Fund), dependent on the services provided.

USCIS data indicates a current backlog of pending U Visa applications of over 79,000 nationwide as of 2014, likely due in part to the cap on visa issuances of 10,000 annually. As a result, the TCVAP caseload is estimated to cumulatively increase as eligibility extends until an applicant receives a final administrative denial. To the extent the federal cap on U Visa issuances remains unchanged, the backlog of pending applications could continue to increase.

According to the U.S. Department of Homeland Security (DHS) publication, U Visa Law Enforcement Certification Resource Guide, “Across the United States, law enforcement agencies have taken different procedural approaches to U visa certifications. DHS does not endorse or recommend any particular practice, as the certifying agency has the sole authority on the policies and procedures it will use in signing law enforcement certifications.”

This bill requires certifying entities to meet specified processing timelines of within 90 days or within 14 days of a request, as specified. The potential cost pressure on 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, 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 certify a Form I-918B 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 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 of costs incurred of $1,000 or more (General Fund).

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 674 Hearing Date: April 21, 2015

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 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 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 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 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 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 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.

-- END –