SB0031ham002 100TH GENERAL ASSEMBLY

Rep. Emanuel Chris Welch

Filed: 5/24/2017

10000SB0031ham002 LRB100 04996 SLF 26986 a

AMENDMENT TO SENATE BILL 31

AMENDMENT NO. ______. Amend Senate Bill 31 as follows:

"Section 1. Short title. This Act may be cited as the Illinois TRUST Act.

Section 5. Legislative intent. It is the intent of the General Assembly that this Act shall not be construed as providing, expanding, or ratifying the legal authority for any State or local law enforcement agency to detain an individual on an immigration detainer or nonjudicial immigration warrant, or perform any other civil immigration enforcement function. State law does not grant State or local law enforcement the authority to enforce federal civil immigration laws. Interactions between State and local law enforcement and federal immigration agents shall be consistent and uniform throughout the State.

Section 10. Definitions. In this Act:

"Certification form" means any law enforcement certification form or statement required by federal immigration law certifying that a person is a victim of qualifying criminal activity including, but not limited to, the information required by Section 1184(p) of Title 8 of the United States Code (including current United States Citizenship and Immigration Service Form I-918, Supplement B, or any successor form) for purposes of obtaining a U visa, or by Section 1184(o) of Title 8 of the United States Code (including current United States Citizenship and Immigration Service Form I-914, Supplement B, or any successor form) for purposes of obtaining a T visa.

"Certifying agency" means a State or local law enforcement agency, prosecutor, or other public authority that has responsibility for the detection, investigation, or prosecution of criminal activity including an agency that has criminal investigative jurisdiction in its respective areas of expertise. "Certifying agency" also includes the Department of Labor, the Department of Children and Family Services, the Department of Human Services, and the Illinois Workers' Compensation Commission. "Certifying agency" does not include any State court.

"Certifying official" means the head of a certifying agency as defined in this Section, or a person within the agency performing a supervisory role who is specifically designated by the head of the certifying agency to respond to requests for certification forms or a person within another certifying agency specifically designated by agreement between the heads of the agencies to respond to requests for certification forms.

"Contact information" means home address, work address, telephone number, electronic mail address, social media information, or any other personal identifying information that could be used as a means to contact a person.

"Eligible for release from custody" means that the person may be released from custody because one of the following conditions has occurred:

(1) all criminal charges against the person have been dropped or dismissed;

(2) the person has been acquitted of all criminal charges filed against him or her;

(3) the person has served all the time required for his or her sentence;

(4) the person has posted a bond or has been released on his or her own recognizance; or

(5) the person is otherwise eligible for release.

"Immigration agent" means an agent of federal Immigration and Customs Enforcement, federal Customs and Border Protection, a person authorized to conduct enforcement of civil immigration laws under Section 1357(g) of Title 8 of the United States Code or any other federal law, any other federal agent charged with enforcement of civil immigration laws, or any successor agent.

"Immigration detainer" means a document issued by an immigration agent to a State or local law enforcement agency that requests that the law enforcement agency provide notice of release or maintain custody of a person that is not approved and signed by a judge, including a detainer issued under Section 1226 or 1357 of Title 8 of the United States Code or Section 236.1 or 287.7 of Title 8 of the Code of Federal Regulations.

"Law enforcement agency" means an agency in this State charged with enforcement of State, county, or municipal laws or with managing custody of detained persons in the State.

"Law enforcement official" means any officer or other agent of a State or local law enforcement agency authorized to enforce criminal laws, rules, regulations, or local ordinances or to operate jails, correctional facilities, or juvenile detention facilities or to maintain custody of persons in jails, correctional facilities, or juvenile detention facilities.

"Nonjudicial immigration warrant" means a Form I-200 or I-205 administrative warrant or any other immigration warrant or request from an immigration agent to arrest or detain a person that is not approved and signed by a judge, including administrative warrants entered into the Federal Bureau of Investigation's National Crime Information Center database.

"Qualifying criminal activity" means any activity, regardless of the stage of detection, investigation, or prosecution, designated in Section 1101(a)(15)(U)(iii) of Title 8 of the United States Code and any implementing federal regulations, and includes 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 (as defined in Section 1351 of Title 18 of the United States Code); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes; and any criminal activity that has an articulable similarity to any activity listed under this definition, but is not specifically listed under this definition. "Qualifying criminal activity" also means any qualifying criminal activity that occurs during the commission of non-qualifying criminal activity, regardless of whether or not criminal prosecution was sought for the qualifying criminal activity. Criminal activity may be considered qualifying criminal activity regardless of how much time has elapsed since its commission.

"Victim of qualifying criminal activity" means a person who:

(1)(A)(i) has reported qualifying criminal activity to a law enforcement agency or certifying agency; or (ii) has otherwise participated in the detection, investigation, or prosecution of qualifying criminal activity; and

(B) has suffered direct and proximate harm as a result of the commission of any qualifying criminal activity, including, but not limited to: (i) an indirect victim regardless of the direct victim's immigration or citizenship status, who, in any case in which the direct victim is deceased, incompetent, or incapacitated, is the direct victim's spouse, the direct victim's child under 21 years of age, or if the direct victim is under 21 years of age, the direct victim's unmarried sibling under 18 years of age or parent; or (ii) a bystander victim who suffers direct physical or mental harm as a result of the qualifying criminal activity, or

(2) was a victim of a severe form of trafficking in persons as defined in Section 7102 of Title 22 of the United States Code and Section 10-9 of the Criminal Code of 2012.

More than one victim may be identified and provided with a certification form depending upon the circumstances. For purposes of the definition of "victim of qualifying criminal activity", the term "incapacitated" means unable to interact with the law enforcement agency or certifying agency personnel as a result of a cognitive impairment or other physical limitation, because of physical restraint or disappearance, or because the victim was a minor at the time the crime was committed and reported.

Section 15. Prohibited immigration enforcement activities; exceptions.

(a) A law enforcement agency or official shall not detain or continue to detain a person solely on the basis of an immigration detainer or nonjudicial immigration warrant after that person becomes eligible for release from custody or otherwise comply with an immigration detainer or nonjudicial immigration warrant. However, in the exercise of discretion, a law enforcement agency or official may comply with an immigration detainer or nonjudicial immigration warrant request if there is probable cause to believe that the person has or is engaged in a terrorist act as defined by Section 29D-10 the Criminal Code of 2012.

(b) A law enforcement agency or official shall not stop, arrest, search, detain, or continue to detain a person solely based on the person's citizenship or immigration status, a nonjudicial immigration warrant or immigration detainer, the person's possession of a temporary visitor's driver's license issued by the Secretary of State under the Illinois Vehicle Code, or the person's possession of a passport, consular identification document, or other identification document issued by a foreign government. However, in the exercise of discretion, a law enforcement agency or official may comply with an immigration detainer or nonjudicial immigration warrant if there is probable cause to believe that the person has or is engaged in a terrorist act as defined by Section 29D-10 of Criminal Code of 2012.

(c) A law enforcement agency or official shall not inquire about the citizenship or immigration status of a person, including a crime victim, witness, or a person who calls or approaches the law enforcement agency or official seeking assistance, unless necessary to investigate criminal activity. Nothing in this subsection (c) shall be construed to limit the ability of a law enforcement agency or official to ask a person in the law enforcement agency's custody about that person's country of nationality for purposes of facilitating communication with consular officers from that person's country of nationality under the Vienna Convention on Consular Relations.

(d) A law enforcement agency or official shall not enter into an agreement under Section 1357(g) of Title 8 of the United States Code or any other federal law that permits State or local governmental entities to enforce federal civil immigration laws.

(e) Nothing in this Section shall be construed to prohibit or restrict an entity from sending to, or receiving from, the United States Department of Homeland Security or other federal, State, or local government entity information regarding the citizenship or immigration status of a person under Sections 1373 and 1644 of Title 8 of the United States Code.

(f) Nothing in this Section shall be construed as restricting an expenditure or activity necessary to the performance by the State, a unit of local government, or a law enforcement or other agency, official, employee, or agent of any obligations under any contract between the State, the unit of local government, or the agency and federal officials regarding the use of a facility to detain persons in federal immigration removal proceedings.

Section 20. Other prohibited activities; registry programs. A State or local government agency or official shall not expend any time, facilities, equipment, information, or other resources of the agency or official to facilitate the creation, publication, or maintenance of a federal program with the purpose of registering or maintaining a database of persons present in the United States based on their race, color, ancestry, national origin, or religion.

Section 25. Certifications for victims of qualifying criminal activity.

(a) Upon a receipt of a request from a victim of qualifying criminal activity, as defined in Section 10 of this Act, or the victim's representative for completion of a certification form by a certifying agency, the designated certifying official for the agency shall complete and issue the certification form, except that the certifying official may decline, by written notice to the requesting victim or the victim's representative, to complete the certification form requested under this subsection only if, after a good faith inquiry, the agency cannot determine that the applicant is a victim of qualifying criminal activity as defined in Section 10 of this Act. The certifying official shall complete and issue the certification form within 90 business days of receiving the request, except:

(1) if the victim of qualifying criminal activity is in federal immigration removal proceedings or detained, then the certifying official shall complete the certification form no later than 14 business days after the request is received by the agency; and

(2) if the victim's children, parents, or siblings would become ineligible for benefits under Sections 1184(p) and 1184(o) of Title 8 of the United States Code by virtue of the victim's children having reached the age of 21 years, the victim having reached the age of 21 years, or the victim's sibling having reached the age of 18 years within 90 business days from the date that the certifying agency receives the certification request, the certifying official shall complete the certification form no later than 14 business days after the request is received by the agency, or if the loss of the benefit would occur less than 14 business days of receipt of the certification request, the certifying official shall complete a certification form within 5 business days.

Requests for expedited completion of a certification form under paragraphs (1) and (2) of this subsection (a) shall be affirmatively raised by the victim or representative of the victim in writing by the victim or representative of the victim and shall establish that the victim is eligible for expedited review.

(b) A request for completion of a certification form under subsection (a) of this Section may be submitted by a representative of the victim, including, but not limited to, an attorney, accredited representative, or domestic violence service provider.

(c) Each certifying agency has independent legal authority to complete and issue a certification form. A certifying official from each certifying agency shall perform the following responsibilities:

(1) respond to requests for certifications as required by this Section; and

(2) make information regarding the agency's procedures for certification requests publicly available for victims of qualifying criminal activity and their representatives.

(d) A certifying official shall complete and reissue a certification form within 90 business days of receiving a request to reissue. If the victim seeking recertification has a deadline to respond to a request for evidence from United States Citizenship and Immigration Services, the certifying official shall complete and issue the form no later than 14 business days after the request is received by the certifying official. Requests for expedited recertification shall be affirmatively raised by the victim or representative of the victim in writing by the victim or representative of the victim and shall establish that the victim is eligible for expedited review.

(e) Notwithstanding any other provision of this Section, a certifying official's completion of a certification form shall not be considered sufficient evidence that an applicant for a U or T visa has met all eligibility requirements for that visa and completion of a certification form by a certifying agency shall not be construed to guarantee that the victim will receive federal immigration relief. It is the exclusive responsibility of federal immigration officials to determine whether a person is eligible for a U or T visa. Completion of a certification form by a certifying official merely verifies factual information relevant to the immigration benefit sought, including information relevant for federal immigration officials to determine eligibility for a U or T visa. By completing a certification form, the certifying official attests that the information is true and correct to the best of the certifying official's knowledge. If, after completion of a certification form, the certifying official later determines the person was not the victim of qualifying criminal activity or the victim unreasonably refuses to assist in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim, then the certifying official may notify United States Citizenship and Immigration Services in writing.

Section 30. Certain State-funded schools and facilities.

(a) It is the intent of the Illinois General Assembly to recognize "safe zones" within the State of Illinois. These "safe zones" are sensitive locations where persons should feel safe and protected by the Fourth Amendment of the U.S. Constitution, Article I, Section 6 of the Illinois Constitution, and all other relevant Constitutional and legal protections. It is in the best interest of this State and its residents that children and adult learners feel safe while at school, universities, libraries, and other educational institutions, that persons seek medical attention without fear, and that residents of this State present themselves at court hearings, all without fear of unlawful arrest or family separation without regard to race, religion, national origin, gender identity, sexual orientation, or immigration status.

(b) Absent a judicial warrant or probable cause of criminal activity (not including an offense related to immigration status, including, but not limited to, a violation of Section 1253, 1304, 1306 (a) or (b), 1325, or 1326 of Title 8 of the United States Code), law enforcement officials may not provide assistance or support to immigration agents, as defined in Section 10 in making arrests in the following State-funded facilities:

(1) Schools, including licensed day care centers, pre-schools, and other early learning programs; elementary and secondary schools, and institutions of higher education.

(2) Medical treatment and health care facilities, including hospitals, health clinics, emergency or urgent care facilities, nursing homes, group homes for persons with developmental disabilities, community-integrated living arrangements, and State mental health facilities.

(3) Public libraries.

(4) Facilities operated by the Office of the Secretary of State.

(5) Circuit courts, State appellate courts, or the Supreme Court.

(c) Employees of elementary and secondary schools in this State and institutions of higher education in this State shall not inquire about a student's citizenship or immigration status or that of the student's family members, except in cases of in-State or in-district tuition verification, scholarships, grants, or services that are contingent upon this information or otherwise required by law. State agencies and State-funded medical treatment and health care facilities shall not inquire about or request proof of citizenship or immigration status when providing services or benefits, except when the receipt of the services or benefits is contingent upon the person's immigration or citizenship status or when inquiries are otherwise required by law. State agencies and State-funded medical treatment and health care facilities shall not collect information regarding a person's citizenship or immigration status, except as required by law.

(d) Beginning 120 days after the effective date of this Act, except as required by law, no new applications, questionnaires, or interview forms used in relation to benefits, opportunities, or services provided by a State agency or in-State or in-district tuition verification, scholarships, grants, or services provided by a public elementary or secondary school or public institution of higher education may contain any questions regarding citizenship or immigration status.

(e) Information or documents relating to a person's citizenship or immigration status are confidential information. Absent a judicial warrant or court-ordered subpoena, a school, institution of higher education, State agency, State-funded medical treatment, or healthcare facility that collects information or documents relating to a person's citizenship or immigration status under federal or State law shall not disclose or otherwise make available to any person or entity information or documents relating to a person's citizenship or immigration status except when disclosure is necessary between a facility listed in paragraph (2) of subsection (b) of this Section and any other licensed health care facility or professional for the provision of health care and except as provided under subsection (g) of this Section. Nothing in this Section is intended to prevent any entity from exchanging aggregated, de-identified information with State, local, or federal entities.

(f) A facility listed in paragraph (2) of subsection (b) of this Section may deny access, delay access, or limit access by law enforcement personnel, including immigration agents, based upon the medical condition or safety of patients or staff or based upon compliance with legal requirements, including federal or State law governing patient privacy. A facility and a person affiliated with that facility who, acting in good faith, either grants or denies access to the facility by law enforcement personnel, including an immigration agent, under this Act shall be immune from any civil or criminal liability based upon the decision to grant or deny access.

(g) Nothing in this Section shall be construed to prohibit or restrict an entity subject to the requirements of Sections 1373 and 1644 of Title 8 of the United States Code from sending to, or receiving from, the United States Department of Homeland Security or any other federal, State, or local government entity information regarding the citizenship or immigration status of a person.

Section 35. Equal access to educational, rehabilitative, and diversionary programs in the criminal justice system. A law enforcement agency shall not consider an immigration detainer or nonjudicial immigration warrant in determining a person's eligibility or placement in any educational, rehabilitative, or diversionary program described in the Unified Code of Corrections or any other educational, rehabilitative, or diversionary program administered by a law enforcement agency.

Section 100. The Illinois Police Training Act is amended by adding Section 10.17-5 as follows:

(50 ILCS 705/10.17-5 new)

Sec. 10.17-5. Training program on federal nonimmigrant visas. The Board shall conduct or approve a training program on U and T nonimmigrant visas and other immigration remedies for immigrant victims of qualifying criminal activity as defined in Section 10 of the Illinois TRUST Act. A law enforcement agency's continuing education program shall provide to the head of the agency or the head of the agency's designee continuing education concerning U and T nonimmigrant visas and continuing education concerning cultural diversity awareness.

Section 105. The Code of Criminal Procedure of 1963 is amended by changing Section 113-8 and by adding Section 110-5.2 as follows:

(725 ILCS 5/110-5.2 new)

Sec. 110-5.2. Bail for persons subject to an immigration detainer. A person subject to an immigration detainer or nonjudicial immigration warrant, as defined in Section 10 of the Illinois TRUST Act, shall not be denied bail solely on the basis of the immigration detainer or nonjudicial immigration warrant. Nothing in this Section may be construed to undermine the authority of a court to set bail or a bond determination under this Article.

(725 ILCS 5/113-8)

Sec. 113-8. Advisement concerning status as an alien. Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.".

Nothing in this Section shall be construed to authorize or direct any court to request that the defendant state his or her immigration or citizenship status or to require that the defendant provide that information.

(Source: P.A. 93-373, eff. 1-1-04.)

Section 110. The Probation and Probation Officers Act is amended by changing Section 12 as follows:

(730 ILCS 110/12) (from Ch. 38, par. 204-4)

Sec. 12. The duties of probation officers shall be:

(1) To investigate as required by Section 5-3-1 of the "Unified Code of Corrections", approved July 26, 1972, as amended, the case of any person to be placed on probation. Full opportunity shall be afforded a probation officer to confer with the person under investigation when such person is in custody.

(2) To notify the court of any previous conviction for crime or previous probation of any defendant invoking the provisions of this Act.

(3) All reports and notifications required in this Act to be made by probation officers shall be in writing and shall be filed by the clerk in the respective cases.

(4) To preserve complete and accurate records of cases investigated, including a description of the person investigated, the action of the court with respect to his case and his probation, the subsequent history of such person, if he becomes a probationer, during the continuance of his probation, which records shall be open to inspection by any judge or by any probation officer pursuant to order of court, but shall not be a public record, and its contents shall not be divulged otherwise than as above provided, except upon order of court; provided that no probation officer shall communicate with federal Immigration and Customs Enforcement, or any successor agency regarding a probationer's case information, check-in information, or contact information as defined in Section 10 of the Illinois TRUST Act, unless otherwise required by law.

(5) To take charge of and watch over all persons placed on probation under such regulations and for such terms as may be prescribed by the court, and giving to each probationer full instructions as to the terms of his release upon probation and requiring from him such periodical reports as shall keep the officer informed as to his conduct.

(6) To develop and operate programs of reasonable public or community service for any persons ordered by the court to perform public or community service, providing, however, that no probation officer or any employee of a probation office acting in the course of his official duties shall be liable for any tortious acts of any person performing public or community service except for wilful misconduct or gross negligence on the part of the probation officer or employee.

(7) When any person on probation removes from the county where his offense was committed, it shall be the duty of the officer under whose care he was placed to report the facts to the probation officer in the county to which the probationer has removed; and it shall thereupon become the duty of such probation officer to take charge of and watch over said probationer the same as if the case originated in that county; and for that purpose he shall have the same power and authority over said probationer as if he had been originally placed in said officer's charge; and such officer shall be required to report in writing every 6 months, or more frequently upon request the results of his supervision to the probation officer in whose charge the said probationer was originally placed by the court.

(8) To authorize travel permits to individuals under their supervision unless otherwise ordered by the court.

(9) To perform such other duties as are provided for in this act or by rules of court and such incidental duties as may be implied from those expressly required.

(10) To send written notification to a public housing agency if a person on probation for a felony who is under the supervision of the probation officer informs the probation officer that he or she has resided, resides, or will reside at an address that is a housing facility owned, managed, operated, or leased by that public housing agency.

(11) If a person on probation for a felony offense who is under the supervision of the probation officer becomes a resident of a facility licensed or regulated by the Department of Public Health, the Illinois Department of Public Aid, or Illinois Department of Human Services, the probation officer shall within 3 days of the person becoming a resident, notify the licensing or regulating Department and licensed or regulated facility and shall provide the licensed or regulated facility and licensing or regulating Department with copies of the following:

(a) (blank);

(b) any applicable probation orders and corresponding compliance plans;

(c) the name and contact information for the assigned probation officer.

(Source: P.A. 94-163, eff. 7-11-05; 94-752, eff. 5-10-06.)

Section 997. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.".