CS for SB 2040                                   First Engrossed
    1                        A bill to be entitled                      
    2         An act relating to enforcement of immigration laws;
    3         amending s. 445.009, F.S.; requiring one-stop career
    4         center staff to verify the employment eligibility of
    5         workers referred to employers using a federal program
    6         for electronic verification of employment eligibility;
    7         providing an exception; requiring notice to employers
    8         on the exception to use of electronic verification;
    9         providing definitions relating to administration of
   10         public benefits; prohibiting an agency from providing
   11         federal, state, or local public benefits to certain
   12         aliens; providing exceptions; requiring an agency to
   13         verify the eligibility of applicants for public
   14         benefits using the federal Systematic Alien
   15         Verification for Entitlements Program; requiring
   16         agencies to compile and maintain compliance
   17         information; creating s. 901.37, F.S.; directing
   18         certain agencies having custody of arrestees to make
   19         reasonable efforts to determine whether the arrestees
   20         are present in the United States lawfully; providing
   21         for fingerprints of the arrestees to be checked
   22         against federal databases; providing that holding
   23         agencies shall notify the United States Department of
   24         Homeland Security regarding individuals in their
   25         custody whose unlawful presence in the United States
   26         is established independently by the agencies;
   27         requiring the Department of Law Enforcement to enter
   28         into and maintain an agreement with the United States
   29         Department of Homeland Security for checking
   30         fingerprints of arrestees against federal databases to
   31         determine immigration status; providing for a
   32         presumption as to risk of flight in order to avoid
   33         prosecution; creating s. 945.80, F.S.; requiring the
   34         Department of Corrections to release nonviolent
   35         inmates to the custody of the United States
   36         Immigration and Customs Enforcement under certain
   37         circumstances; providing a definition; requiring the
   38         department to identify criminal aliens who are
   39         eligible for removal; prescribing certain procedures
   40         for the transfer of an inmate to federal custody;
   41         requiring the Parole Commission to provide notice to
   42         such criminal aliens; providing that a prisoner
   43         released under this authority shall be under
   44         conditional supervision of the Parole Commission;
   45         prescribing conditions of such supervision; providing
   46         for procedures for revocation of release upon
   47         violation of the conditions; providing that a releasee
   48         whose conditional release is revoked is not thereafter
   49         eligible for any form of discretionary release;
   50         providing an exception; directing the secretary of the
   51         department to pursue an agreement with the United
   52         States Department of Homeland Security regarding the
   53         rapid repatriation of removable custodial aliens;
   54         requiring the department to compile statistics;
   55         authorizing the Department of Corrections and the
   56         Parole Commission to adopt rules; providing for
   57         applicability; amending s. 947.141, F.S.; conforming
   58         procedures relating to a violation of conditional
   59         release to account for conditional release for
   60         deportation; providing for issuance of a warrant,
   61         detention without bond under certain conditions, a
   62         hearing conducted by a commissioner of the Parole
   63         Commission or an authorized representative, findings
   64         and entry of an order, revocation of release, and
   65         arrest without a warrant under certain conditions;
   66         providing an effective date.
   68         WHEREAS, Florida ranks third among states in the size of
   69  its unauthorized immigrant population, with an estimated range
   70  of 725,000 to 950,000 unauthorized immigrants in this state, and
   71         WHEREAS, unauthorized immigration contributes directly and
   72  indirectly to substantial costs to the state in policy areas
   73  including, but not limited to, law enforcement, criminal
   74  justice, labor and employment, education, health care, and human
   75  services, and
   76         WHEREAS, the costs related to unauthorized immigration can
   77  consume limited state resources, and
   78         WHEREAS, the federal government has failed to enforce
   79  immigration laws adequately and to adopt and implement
   80  comprehensive reforms to immigration laws in order to control
   81  and contain unauthorized immigration effectively, and
   82         WHEREAS, because of the federal government’s failure, and
   83  because they cannot ignore the challenges posed by unauthorized
   84  immigration, states must assume the mantle of leadership for
   85  enacting policies to promote within their borders compliance
   86  with the immigration laws of this nation, NOW, THEREFORE,
   88  Be It Enacted by the Legislature of the State of Florida:
   90         Section 1. Subsection (12) is added to section 445.009,
   91  Florida Statutes, to read:
   92         445.009 One-stop delivery system.—
   93         (12)(a) Staff of the one-stop delivery system shall use the
   94  federal program for electronic verification of employment
   95  eligibility which is known as the E-Verify Program, or any
   96  successor program, to verify the employment eligibility of any
   97  worker who is referred to an employer and shall issue to the
   98  employer a certification of the verification as provided in
   99  regulations of the United States Department of Homeland
  100  Security.
  101         (b) The requirement to verify employment eligibility under
  102  this subsection does not apply in the case of a worker who uses
  103  an online referral system and does not report in person to the
  104  one-stop career center. If a worker reports in person to a one
  105  stop career center after using the online referral system, the
  106  one-stop career center shall perform the verification required
  107  by this subsection. The website for the Agency for Workforce
  108  Innovation and for the one-stop delivery system in the area
  109  served by each regional workforce board shall provide notice to
  110  employers that the one-stop career center is not performing
  111  electronic-verification inquiries for online referrals.
  112         (c) The Agency for Workforce Innovation, together with the
  113  regional workforce boards, shall consult with the United States
  114  Department of Homeland Security, the United States Department of
  115  Labor, and any other appropriate federal agencies to develop
  116  procedures, consistent with federal requirements, addressing
  117  circumstances in which use of the E-Verify Program, or any
  118  successor program, is not possible based on the information or
  119  documentation presented by the worker.
  120         Section 2.  Agency administration of public benefits;
  121  verification of lawful status.—
  122         (1) As used in this section, the term:
  123         (a) “Agency” means any state, county, district, authority,
  124  or municipal officer, department, division, board, bureau,
  125  commission, or other separate unit of government created or
  126  established by law including, for the purposes of this section,
  127  any other public or private agency, person, partnership,
  128  corporation, or business entity acting on behalf of any public
  129  entity.
  130         (b) “Federal public benefit” has the same meaning as in 8
  131  U.S.C. s. 1611(c).
  132         (c) “Qualified alien” has the same meaning as in 8 U.S.C.
  133  s. 1641(b).
  134         (d) “SAVE Program” means the Systematic Alien Verification
  135  for Entitlements (SAVE) Program established by the United States
  136  Citizenship and Immigration Services.
  137         (e) “State or local public benefit” has the same meaning as
  138  in 8 U.S.C. s. 1621(c).
  139         (2)(a) Except as otherwise provided in 8 U.S.C. s. 1621(b),
  140  an alien is not eligible for any state or local public benefit
  141  unless the alien is:
  142         1. A qualified alien;
  143         2. A nonimmigrant under the federal Immigration and
  144  Nationality Act; or
  145         3. An alien who is paroled into the United States under s.
  146  212(d)(5) of the federal Immigration and Nationality Act for
  147  less than 1 year.
  148         (b) Each agency shall verify through the SAVE Program the
  149  eligibility under this subsection of any applicant for a state
  150  or local public benefit administered by the agency.
  151         (3)(a) Except as otherwise provided in 8 U.S.C. s. 1611(b),
  152  an alien who is not a qualified alien is not eligible for any
  153  federal public benefit.
  154         (b) Each agency shall verify through the SAVE Program the
  155  eligibility under this subsection of any applicant for a federal
  156  public benefit administered by an agency.
  157         (4)(a) An agency may not provide any state or local public
  158  benefit or federal public benefit in violation of this section.
  159         (b) Each agency that administers a state or local public
  160  benefit or federal public benefit shall annually compile and
  161  maintain information on its compliance with this section.
  162         (c) In the implementation of this section, each agency
  163  shall endeavor to improve efficiency, minimize delays in the
  164  verification process, and provide for the expeditious resolution
  165  of individual cases in which verification procedures would
  166  impose undue hardship on a legal resident. An agency shall
  167  report all errors in the SAVE Program to the United States
  168  Department of Homeland Security.
  169         Section 3. Section 901.37, Florida Statutes, is created to
  170  read:
  171         901.37.—Identification of unauthorized immigrants upon
  172  arrest and confinement.—
  173         (1) When a person is confined in a jail or other criminal
  174  detention facility after being arrested, the agency having
  175  custody of the person shall make a reasonable effort to
  176  determine the nationality of the person and whether the person
  177  is present in the United States lawfully, including, but not
  178  limited to, participating in the submission of fingerprints
  179  pursuant to the agreement under subsection (2). If the holding
  180  agency establishes, independent of the submission of
  181  fingerprints, that the person is not lawfully present in the
  182  United States, the agency shall notify the United States
  183  Department of Homeland Security.
  184         (2) The Department of Law Enforcement shall enter into, and
  185  perform all actions reasonably necessary to meet its obligations
  186  under, a memorandum of agreement with the United States
  187  Department of Homeland Security to implement a program through
  188  which fingerprints submitted by local law enforcement agencies
  189  during the arrest and booking process are checked against
  190  federal databases in order to assess the immigration status of
  191  individuals in custody.
  192         (3) This section may not be construed to:
  193         (a) Authorize the arrest of a person on suspicion that the
  194  person is not present in the United States lawfully; or
  195         (b) Deny a person bond or prevent release of a person from
  196  confinement if the person is otherwise eligible for release.
  197  However, for the purpose of the bail determination required by
  198  s. 903.046, Florida Statutes, a determination that the person is
  199  not present in the United States lawfully raises a rebuttable
  200  presumption that there is a risk of flight to avoid prosecution.
  201         Section 4. Section 945.80, Florida Statutes, is created to
  202  read:
  203         945.80 Rapid removal of deportable criminal aliens.—
  204         (1) Notwithstanding any law to the contrary, and pursuant
  205  to s. 241(a)(4)(B)(ii) of the federal Immigration and
  206  Nationality Act, the secretary of the department shall release a
  207  prisoner, prior to the completion of his or her sentence, to the
  208  custody and control of the United States Immigration and Customs
  209  Enforcement if:
  210         (a) The prisoner is confined pursuant to a final conviction
  211  for a nonviolent offense;
  212         (b) The department has received a final order of removal
  213  for the prisoner from the United States Immigration and Customs
  214  Enforcement; and
  215         (c) The secretary determines that removal is appropriate
  216  and in the best interest of the state.
  218  As used in this section, the term “nonviolent offense” means a
  219  third-degree felony violation under chapter 810 or any other
  220  felony offense that is not a forcible felony as defined in s.
  221  776.08.
  222         (2)(a) The department shall identify, during the inmate
  223  reception process and among the existing inmate population,
  224  prisoners who are eligible for removal under this section and
  225  determine whether removal is appropriate and in the best
  226  interest of the state. The department shall provide eligible
  227  prisoners with information on this section.
  228         (b) The department shall coordinate with federal
  229  authorities to determine the eligibility of a prisoner for
  230  removal and to obtain a final order of removal.
  231         (3)(a) Upon approval for removal of the prisoner under this
  232  section, the department shall establish a release date for the
  233  prisoner to be transferred to federal custody. The department
  234  shall maintain control of and responsibility for the custody of
  235  the prisoner until the prisoner is physically transferred to
  236  federal custody.
  237         (b) In coordination with the department, the Parole
  238  Commission shall provide notice and obtain acknowledgment in
  239  writing that notice was provided to each alien who is approved
  240  for removal and deportation that reentry into the United States
  241  requires the return of the alien to the custody of the
  242  department in order to complete the remainder of his or her
  243  sentence imposed by the court. The alien must agree to release
  244  into federal custody under this section.
  245         (4) A prisoner who is released under this section shall be
  246  under conditional supervision of the Parole Commission for the
  247  remainder of the maximum period for which he or she has been
  248  sentenced.
  249         (a) The conditions of supervision for a prisoner who is
  250  released under this section are that he or she must not:
  251         1. Violate the law of this state or of any other
  252  jurisdiction of the United States; or
  253         2. Return to the United States after release.
  254         (b) If a prisoner who is released under this section
  255  returns to the United States, the Parole Commission shall revoke
  256  the release of the prisoner in accordance with the procedures in
  257  s. 947.141 and seek the return of the prisoner to the custody of
  258  the department to serve the remainder of the sentence imposed by
  259  the court.
  260         (c) A prisoner whose conditional deportation release is
  261  revoked is not thereafter eligible for any form of discretionary
  262  release except as the result of accrual of any gain time earned
  263  after return to prison.
  264         (5) The secretary of the department shall pursue, and is
  265  authorized to enter into, an agreement with the United States
  266  Department of Homeland Security regarding the rapid repatriation
  267  of removable custodial aliens from the United States pursuant to
  268  this section.
  269         (6) The department shall compile statistics on
  270  implementation of this section, including, but not limited to:
  271         (a) The number of prisoners who are transferred to federal
  272  custody;
  273         (b) The number of prisoners who are removed or deported;
  274         (c) The number of releasees who reenter the United States,
  275  including the number who are returned to the custody of the
  276  department; and
  277         (d) The annual cost-avoidance achieved.
  278         (7) The department and the Parole Commission may adopt
  279  rules pursuant to ss. 120.536(1) and 120.54 to implement the
  280  provisions of this section.
  281         (8) To the extent practicable, this section applies to all
  282  prisoners actually in confinement on, and all prisoners taken
  283  into confinement after, July 1, 2011.
  284         Section 5. Section 947.141, Florida Statutes, is amended to
  285  read:
  286         947.141 Violations of conditional release, control release,
  287  or conditional medical release, or addiction-recovery
  288  supervision, or conditional deportation release.—
  289         (1) If a member of the commission or a duly authorized
  290  representative of the commission has reasonable grounds to
  291  believe that an offender who is on release supervision under s.
  292  947.1405, s. 947.146, s. 947.149, or s. 944.4731, or s. 945.80
  293  has violated the terms and conditions of the release in a
  294  material respect, such member or representative may cause a
  295  warrant to be issued for the arrest of the releasee; if the
  296  offender was found to be a sexual predator, the warrant must be
  297  issued.
  298         (2) Upon the arrest on a felony charge of an offender who
  299  is on release supervision under s. 947.1405, s. 947.146, s.
  300  947.149, or s. 944.4731, or s. 945.80, the offender must be
  301  detained without bond until the initial appearance of the
  302  offender at which a judicial determination of probable cause is
  303  made. If the trial court judge determines that there was no
  304  probable cause for the arrest, the offender may be released. If
  305  the trial court judge determines that there was probable cause
  306  for the arrest, such determination also constitutes reasonable
  307  grounds to believe that the offender violated the conditions of
  308  the release. Within 24 hours after the trial court judge’s
  309  finding of probable cause, the detention facility administrator
  310  or designee shall notify the commission and the department of
  311  the finding and transmit to each a facsimile copy of the
  312  probable cause affidavit or the sworn offense report upon which
  313  the trial court judge’s probable cause determination is based.
  314  The offender must continue to be detained without bond for a
  315  period not exceeding 72 hours excluding weekends and holidays
  316  after the date of the probable cause determination, pending a
  317  decision by the commission whether to issue a warrant charging
  318  the offender with violation of the conditions of release. Upon
  319  the issuance of the commission’s warrant, the offender must
  320  continue to be held in custody pending a revocation hearing held
  321  in accordance with this section.
  322         (3) Within 45 days after notice to the Parole Commission of
  323  the arrest of a releasee charged with a violation of the terms
  324  and conditions of conditional release, control release,
  325  conditional medical release, or addiction-recovery supervision,
  326  or conditional deportation release, the releasee must be
  327  afforded a hearing conducted by a commissioner or a duly
  328  authorized representative thereof. If the releasee elects to
  329  proceed with a hearing, the releasee must be informed orally and
  330  in writing of the following:
  331         (a) The alleged violation with which the releasee is
  332  charged.
  333         (b) The releasee’s right to be represented by counsel.
  334         (c) The releasee’s right to be heard in person.
  335         (d) The releasee’s right to secure, present, and compel the
  336  attendance of witnesses relevant to the proceeding.
  337         (e) The releasee’s right to produce documents on the
  338  releasee’s own behalf.
  339         (f) The releasee’s right of access to all evidence used
  340  against the releasee and to confront and cross-examine adverse
  341  witnesses.
  342         (g) The releasee’s right to waive the hearing.
  343         (4) Within a reasonable time following the hearing, the
  344  commissioner or the commissioner’s duly authorized
  345  representative who conducted the hearing shall make findings of
  346  fact in regard to the alleged violation. A panel of no fewer
  347  than two commissioners shall enter an order determining whether
  348  the charge of violation of conditional release, control release,
  349  conditional medical release, or addiction-recovery supervision,
  350  or conditional deportation release has been sustained based upon
  351  the findings of fact presented by the hearing commissioner or
  352  authorized representative. By such order, the panel may revoke
  353  conditional release, control release, conditional medical
  354  release, or addiction-recovery supervision, or conditional
  355  deportation release and thereby return the releasee to prison to
  356  serve the sentence imposed, reinstate the original order
  357  granting the release, or enter such other order as it considers
  358  proper. Effective for inmates whose offenses were committed on
  359  or after July 1, 1995, the panel may order the placement of a
  360  releasee, upon a finding of violation pursuant to this
  361  subsection, into a local detention facility as a condition of
  362  supervision. For prisoners who have violated the conditions
  363  governing removal and deportation of criminal aliens under s.
  364  945.80, the commission shall order the return to prison.
  365         (5) Effective for inmates whose offenses were committed on
  366  or after July 1, 1995, notwithstanding the provisions of ss.
  367  775.08, former 921.001, 921.002, 921.187, 921.188, 944.02, and
  368  951.23, or any other law to the contrary, by such order as
  369  provided in subsection (4), the panel, upon a finding of guilt,
  370  may, as a condition of continued supervision, place the releasee
  371  in a local detention facility for a period of incarceration not
  372  to exceed 22 months. Prior to the expiration of the term of
  373  incarceration, or upon recommendation of the chief correctional
  374  officer of that county, the commission shall cause inquiry into
  375  the inmate’s release plan and custody status in the detention
  376  facility and consider whether to restore the inmate to
  377  supervision, modify the conditions of supervision, or enter an
  378  order of revocation, thereby causing the return of the inmate to
  379  prison to serve the sentence imposed. The provisions of this
  380  section do not prohibit the panel from entering such other order
  381  or conducting any investigation that it deems proper. The
  382  commission may only place a person in a local detention facility
  383  pursuant to this section if there is a contractual agreement
  384  between the chief correctional officer of that county and the
  385  Department of Corrections. The agreement must provide for a per
  386  diem reimbursement for each person placed under this section,
  387  which is payable by the Department of Corrections for the
  388  duration of the offender’s placement in the facility. This
  389  section does not limit the commission’s ability to place a
  390  person in a local detention facility for less than 1 year. This
  391  subsection is not applicable to a person violating the
  392  conditions governing removal and deportation of criminal aliens
  393  under s. 945.80.
  394         (6) Whenever a conditional release, control release,
  395  conditional medical release, or addiction-recovery supervision,
  396  or conditional deportation release is revoked by a panel of no
  397  fewer than two commissioners and the releasee is ordered to be
  398  returned to prison, the releasee, by reason of the misconduct,
  399  shall be deemed to have forfeited all gain-time or commutation
  400  of time for good conduct, as provided for by law, earned up to
  401  the date of release. However, if a conditional medical release
  402  is revoked due to the improved medical or physical condition of
  403  the releasee, the releasee shall not forfeit gain-time accrued
  404  before the date of conditional medical release. This subsection
  405  does not deprive the prisoner of the right to gain-time or
  406  commutation of time for good conduct, as provided by law, from
  407  the date of return to prison.
  408         (7) If a law enforcement officer has probable cause to
  409  believe that an offender who is on release supervision under s.
  410  947.1405, s. 947.146, s. 947.149, or s. 944.4731, or s. 945.80
  411  has violated the terms and conditions of his or her release by
  412  committing a felony offense, the officer shall arrest the
  413  offender without a warrant, and a warrant need not be issued in
  414  the case.
  415         Section 6. This act shall take effect July 1, 2011.