CS for SB 2040 First Engrossed 20112040e1 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. 67 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, 87 88 Be It Enacted by the Legislature of the State of Florida: 89 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. 217 218 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
orconditional medical release, oraddiction-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, ors. 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, ors. 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, oraddiction-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, oraddiction-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, oraddiction-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, oraddiction-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, ors. 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.