Amendment ID: S3072-11
Amendment 11
Protect Immigrant Victims of Crime and Trafficking
Mr. Eldridge, Ms. Miranda, Ms. Howard, Ms. Jehlen and Messrs. Gómez and Montigny move that the proposed new text be amended by striking out section 15 and inserting in place thereof the following section:-
SECTION 15. The General Laws are hereby further amended by striking out chapter 258F and inserting in place thereof the following chapter:-
Chapter 258F
CERTIFICATION FOR VICTIMS OF CRIMINAL ACTIVITY AND HUMAN TRAFFICKING
Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:
“Applicant’s representative”, a person authorized by the applicant to aid the applicant in obtaining certification from a certifying entity, including, but not limited to, an attorney, a law student, a paralegal, legal assistant or other person.
“Certifying entity”, a law enforcement agency, prosecutor or other state or local entity that has the authority to detect, investigate or prosecute severe forms of trafficking in persons or criminal activity or any other state or local agency designated by regulation of the secretary of public safety and security in consultation with the attorney general.
“Helpful” or “helpfulness”, as described in 8 U.S.C. § 1101 or any related guidance and required on the applicable federal certification form; provided, that “helpfulness” shall include being helpful in the past, currently being helpful or being likely to be helpful.
“Qualifying criminal activity”, (i) criminal activity described in 8 U.S.C. § 1101(a)(15)(U)(iii) and severe forms of trafficking in persons described in 8 U.S.C. § 1101(a)(15)(T); and (ii) any offense under the laws of the commonwealth or a political subdivision thereof that is substantially similar.
Section 2. A certifying entity may certify a request of a victim of qualifying criminal activity who intends to petition for a nonimmigrant visa under 8 U.S.C. § 1101(a)(15)(U) or from a victim of severe forms of trafficking in persons who intends to petition for a nonimmigrant visa under 8 U.S.C. § 1101(a)(15)(T), pursuant to this chapter. For purposes of determining whether a person is a victim of qualifying criminal activity for certification, a certifying entity shall not require the filing of criminal charges or a conviction. For purposes of certification decisions under this chapter, allegations of wage theft, workplace safety violations, housing violations or labor exploitation accompanied by threats of deportation, intimidation or retaliation may constitute qualifying criminal activity where the alleged conduct is reasonably consistent with extortion, coercion, involuntary servitude, peonage, obstruction of justice, witness intimidation, trafficking of persons for forced servitude or other substantially similar offenses under state or federal law.
Section 3. Each certifying entity shall adopt, publish and maintain a written certification policy consistent with this chapter and the regulations promulgated pursuant to section 6. The policy shall include, but shall not be limited to: (i) identification of a designated certifying official within the certifying entity and an alternate; (ii) a description of how requests may be submitted, which shall include, but not be limited to, by email, fax, hand delivery, mail, messenger or delivery service by the applicant or the applicant’s representative authorized by the applicant; (iii) objective criteria used to assess whether a person is a victim who meets the requirements for helpfulness consistent with federal certification forms; (iv) a prohibition of consideration of the applicant’s immigration admissibility or eligibility beyond the determinations required by the federal certification form; (v) a prohibition of any fee; and (vi) a description of the certifying entity’s internal review process for denials.
Section 4. (a) A certifying entity shall respond to a certification request from a victim of qualifying criminal activity who intends to petition for a nonimmigrant visa under 8 U.S.C. § 1101(a)(15)(U) or from a victim of severe forms of trafficking in persons who intends to petition for a nonimmigrant visa under 8 U.S.C. § 1101(a)(15)(T) not later than 30 days after receiving such request; provided, however, that if extraordinary circumstances outside of the certifying entity’s control prevent the certifying entity from responding within 30 days after receiving the request, the certifying entity shall provide a written explanation of the delay to the applicant, or the applicant’s representative, which shall include a projected response date.
(b) The certifying entity shall respond not later than 10 business after receipt of the request if the applicant, or the applicant’s representative, certifies that the applicant: (i) is in federal removal proceedings or (ii) has a scheduled immigration court hearing within 45 days or has a derivative beneficiary as described in 8 U.S.C. § 1101(a)(15)(T)(ii)(III) who will age out within 45 days, or (iii) requires a certification decision to support a request to stay removal or to support a habeas petition; provided, however, that if extraordinary circumstances outside of the certifying entity’s control prevent the certifying entity from responding within 10 business days after receiving the request, the certifying entity shall provide a written explanation of the delay to the applicant or the applicant’s representative, which shall include a projected response date.
(c) The certifying entity shall respond by: (i) completing and signing the applicable federal certification form; (ii) issuing a written denial without prejudice that states the specific reasons the request does not meet the requirements of the entity’s policy under section 3 and identifies the internal review process; or (iii) issuing a written explanation of delay as provided in subsections (a) or (b).
Section 5. (a) A certifying entity shall establish a rebuttable presumption of helpfulness for any victim who timely reports qualifying criminal activity and is willing to be helpful or provide information in a manner reasonably requested by the certifying entity. A certifying entity shall not deny a request solely because: (i) no arrest was made; (ii) the case was closed; (iii) the victim has a criminal record unrelated to the qualifying criminal activity; or (iv) the victim chose to exercise constitutional rights.
(b) No state or local employee shall report or threaten to report an individual to federal immigration authorities in retaliation for seeking certification, reporting a crime, participating in an investigation, filing a labor or civil rights complaint or cooperating with a proceeding.
Section 6. (a) The secretary of public safety and security, in consultation with the attorney general, may promulgate regulations to implement this chapter, including, but not limited to: (i) minimum standards for internal review processes, training and data reporting under this chapter; (ii) allowing any executive branch agency or its political subdivision to facilitate the submission of an application for certification pursuant to this chapter; (iii) minimum standards for internal review processes and applicant requirements pursuant to section 4; or (iv) standards to serve as an applicant’s representative.
(b) Annually, each certifying entity shall report to the secretary of public safety and security aggregate data sufficient to evaluate compliance with this section, including certification request volume, response times, approvals, denials and reasons for denial, in a manner that protects confidentiality.
Section 7. The attorney general may file a complaint against a certifying entity for declaratory, injunctive and other equitable relief to compel compliance or prevent violations of this chapter.
Section 8. Notwithstanding subsection (b) of section 64 of chapter 147, a law enforcement agency may inquire into the immigration or citizenship status of a victim of a crime, witness or person seeking assistance, in accordance with this chapter.