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2019 Legislature CS for CS for CS for SB 168, 2nd Engrossed
2019168er
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2 An act relating to federal immigration enforcement;
3 creating chapter 908, F.S., relating to federal
4 immigration enforcement; providing legislative
5 findings and intent; providing definitions;
6 prohibiting sanctuary policies; requiring state
7 entities, local governmental entities, and law
8 enforcement agencies to use best efforts to support
9 the enforcement of federal immigration law;
10 prohibiting restrictions by the entities and agencies
11 on taking certain actions with respect to information
12 regarding a person’s immigration status; providing
13 requirements concerning certain criminal defendants
14 subject to immigration detainers or otherwise subject
15 to transfer to federal custody; authorizing a law
16 enforcement agency to transport an alien unlawfully
17 present in the United States under certain
18 circumstances; providing an exception to reporting
19 requirements for crime victims or witnesses; requiring
20 recordkeeping relating to crime victim and witness
21 cooperation in certain investigations; providing
22 applicability; specifying duties concerning
23 immigration detainers; requiring county correctional
24 facilities to enter agreements for payments for
25 complying with immigration detainers; providing for
26 enforcement; providing for declaratory or injunctive
27 relief; requiring a court to enjoin unlawful sanctuary
28 policies; requiring written findings of fact under
29 certain circumstances; providing for applicability to
30 certain education records; prohibiting discrimination
31 on specified grounds; providing for implementation;
32 requiring repeal of existing sanctuary policies within
33 a specified period; providing effective dates.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Chapter 908, Florida Statutes, consisting of
38 sections 908.101-908.109, is created to read:
39 CHAPTER 908
40 FEDERAL IMMIGRATION ENFORCEMENT
41 908.101 Legislative findings and intent.—The Legislature
42 finds that it is an important state interest to cooperate and
43 assist the federal government in the enforcement of federal
44 immigration laws within this state.
45 908.102 Definitions.—As used in this chapter, the term:
46 (1) “Federal immigration agency” means the United States
47 Department of Justice and the United States Department of
48 Homeland Security, a division within such an agency, including
49 United States Immigration and Customs Enforcement and United
50 States Customs and Border Protection, any successor agency, and
51 any other federal agency charged with the enforcement of
52 immigration law.
53 (2) “Immigration detainer” means a facially sufficient
54 written or electronic request issued by a federal immigration
55 agency using that agency’s official form to request that another
56 law enforcement agency detain a person based on probable cause
57 to believe that the person to be detained is a removable alien
58 under federal immigration law, including detainers issued
59 pursuant to 8 U.S.C. ss. 1226 and 1357 along with a warrant
60 described in paragraph (c). For purposes of this subsection, an
61 immigration detainer is deemed facially sufficient if:
62 (a) The federal immigration agency’s official form is
63 complete and indicates on its face that the federal immigration
64 official has probable cause to believe that the person to be
65 detained is a removable alien under federal immigration law; or
66 (b) The federal immigration agency’s official form is
67 incomplete and fails to indicate on its face that the federal
68 immigration official has probable cause to believe that the
69 person to be detained is a removable alien under federal
70 immigration law, but is supported by an affidavit, order, or
71 other official documentation that indicates that the federal
72 immigration agency has probable cause to believe that the person
73 to be detained is a removable alien under federal immigration
74 law; and
75 (c) The federal immigration agency supplies with its
76 detention request a Form I-200 Warrant for Arrest of Alien or a
77 Form I-205 Warrant of Removal/Deportation or a successor warrant
78 or other warrant authorized by federal law.
79 (3) “Inmate” means a person in the custody of a law
80 enforcement agency.
81 (4) “Law enforcement agency” means an agency in this state
82 charged with enforcement of state, county, municipal, or federal
83 laws or with managing custody of detained persons in this state
84 and includes municipal police departments, sheriff’s offices,
85 state police departments, state university and college police
86 departments, county correctional agencies, and the Department of
87 Corrections.
88 (5) “Local governmental entity” means any county,
89 municipality, or other political subdivision of this state.
90 (6) “Sanctuary policy” means a law, policy, practice,
91 procedure, or custom adopted or allowed by a state entity or
92 local governmental entity which prohibits or impedes a law
93 enforcement agency from complying with 8 U.S.C. s. 1373 or which
94 prohibits or impedes a law enforcement agency from communicating
95 or cooperating with a federal immigration agency so as to limit
96 such law enforcement agency in, or prohibit the agency from:
97 (a) Complying with an immigration detainer;
98 (b) Complying with a request from a federal immigration
99 agency to notify the agency before the release of an inmate or
100 detainee in the custody of the law enforcement agency;
101 (c) Providing a federal immigration agency access to an
102 inmate for interview;
103 (d) Participating in any program or agreement authorized
104 under section 287 of the Immigration and Nationality Act, 8
105 U.S.C. s. 1357; or
106 (e) Providing a federal immigration agency with an inmate’s
107 incarceration status or release date.
108 (7) “State entity” means the state or any office, board,
109 bureau, commission, department, branch, division, or institution
110 thereof, including institutions within the State University
111 System and the Florida College System.
112 908.103 Sanctuary policies prohibited.—A state entity, law
113 enforcement agency, or local governmental entity may not adopt
114 or have in effect a sanctuary policy.
115 908.104 Cooperation with federal immigration authorities.—
116 (1) A law enforcement agency shall use best efforts to
117 support the enforcement of federal immigration law. This
118 subsection applies to an official, representative, agent, or
119 employee of the entity or agency only when he or she is acting
120 within the scope of his or her official duties or within the
121 scope of his or her employment.
122 (2) Except as otherwise expressly prohibited by federal
123 law, a state entity, local governmental entity, or law
124 enforcement agency, or an employee, an agent, or a
125 representative of the entity or agency, may not prohibit or in
126 any way restrict a law enforcement agency from taking any of the
127 following actions with respect to information regarding a
128 person’s immigration status:
129 (a) Sending the information to or requesting, receiving, or
130 reviewing the information from a federal immigration agency for
131 purposes of this chapter.
132 (b) Recording and maintaining the information for purposes
133 of this chapter.
134 (c) Exchanging the information with a federal immigration
135 agency or another state entity, local governmental entity, or
136 law enforcement agency for purposes of this chapter.
137 (d) Using the information to comply with an immigration
138 detainer.
139 (e) Using the information to confirm the identity of a
140 person who is detained by a law enforcement agency.
141 (3)(a) For purposes of this subsection, the term
142 “applicable criminal case” means a criminal case in which:
143 1. The judgment requires the defendant to be confined in a
144 secure correctional facility; and
145 2. The judge:
146 a. Indicates in the record under s. 908.105 that the
147 defendant is subject to an immigration detainer; or
148 b. Otherwise indicates in the record that the defendant is
149 subject to a transfer into federal custody.
150 (b) In an applicable criminal case, when the judge
151 sentences a defendant who is the subject of an immigration
152 detainer to confinement, the judge shall issue an order
153 requiring the secure correctional facility in which the
154 defendant is to be confined to reduce the defendant’s sentence
155 by a period of not more than 12 days on the facility’s
156 determination that the reduction in sentence will facilitate the
157 seamless transfer of the defendant into federal custody. For
158 purposes of this paragraph, the term “secure correctional
159 facility” means a state correctional institution as defined in
160 s. 944.02 or a county detention facility or a municipal
161 detention facility as defined in s. 951.23.
162 (c) If the information specified in sub-subparagraph
163 (a)2.a. or sub-subparagraph (a)2.b. is not available at the time
164 the sentence is pronounced in the case, but is received by a law
165 enforcement agency afterwards, the law enforcement agency shall
166 notify the judge who shall issue the order described by
167 paragraph (b) as soon as the information becomes available.
168 (4) When a county correctional facility or the Department
169 of Corrections receives verification from a federal immigration
170 agency that a person subject to an immigration detainer is in
171 the law enforcement agency’s custody, the agency may securely
172 transport the person to a federal facility in this state or to
173 another point of transfer to federal custody outside the
174 jurisdiction of the law enforcement agency. The law enforcement
175 agency may transfer a person who is subject to an immigration
176 detainer and is confined in a secure correctional facility to
177 the custody of a federal immigration agency not earlier than 12
178 days before his or her release date. A law enforcement agency
179 shall obtain judicial authorization before securely transporting
180 an alien to a point of transfer outside of this state.
181 (5) This section does not require a state entity, local
182 governmental entity, or law enforcement agency to provide a
183 federal immigration agency with information related to a victim
184 of or a witness to a criminal offense if the victim or witness
185 timely and in good faith responds to the entity’s or agency’s
186 request for information and cooperation in the investigation or
187 prosecution of the offense.
188 (6) A state entity, local governmental entity, or law
189 enforcement agency that, pursuant to subsection (5), withholds
190 information regarding the immigration information of a victim of
191 or witness to a criminal offense shall document the victim’s or
192 witness’s cooperation in the entity’s or agency’s investigative
193 records related to the offense and shall retain the records for
194 at least 10 years for the purpose of audit, verification, or
195 inspection by the Auditor General.
196 (7) This section does not authorize a law enforcement
197 agency to detain an alien unlawfully present in the United
198 States pursuant to an immigration detainer solely because the
199 alien witnessed or reported a crime or was a victim of a
200 criminal offense.
201 (8) This section does not apply to any alien unlawfully
202 present in the United States if he or she is or has been a
203 necessary witness or victim of a crime of domestic violence,
204 rape, sexual exploitation, sexual assault, murder, manslaughter,
205 assault, battery, human trafficking, kidnapping, false
206 imprisonment, involuntary servitude, fraud in foreign labor
207 contracting, blackmail, extortion, or witness tampering.
208 908.105 Duties related to immigration detainers.—
209 (1) A law enforcement agency that has custody of a person
210 subject to an immigration detainer issued by a federal
211 immigration agency shall:
212 (a) Provide to the judge authorized to grant or deny the
213 person’s release on bail under chapter 903 notice that the
214 person is subject to an immigration detainer.
215 (b) Record in the person’s case file that the person is
216 subject to an immigration detainer.
217 (c) Upon determining that the immigration detainer is in
218 accordance with s. 908.102(2), comply with the requests made in
219 the immigration detainer.
220 (2) A law enforcement agency is not required to perform a
221 duty imposed by paragraph (1)(a) or paragraph (1)(b) with
222 respect to a person who is transferred to the custody of the
223 agency by another law enforcement agency if the transferring
224 agency performed that duty before the transfer.
225 (3) A judge who receives notice that a person is subject to
226 an immigration detainer shall cause the fact to be recorded in
227 the court record, regardless of whether the notice is received
228 before or after a judgment in the case.
229 908.106 Reimbursement of costs.—Each county correctional
230 facility shall enter into an agreement or agreements with a
231 federal immigration agency for temporarily housing persons who
232 are the subject of immigration detainers and for the payment of
233 the costs of housing and detaining those persons. A compliant
234 agreement may include any contract between a correctional
235 facility and a federal immigration agency for housing or
236 detaining persons subject to immigration detainers, such as
237 basic ordering agreements in effect on or after July 1, 2019,
238 agreements authorized by section 287 of the Immigration and
239 Nationality Act, 8 U.S.C. s. 1357, or successor agreements and
240 other similar agreements authorized by federal law.
241 908.107 Enforcement.—
242 (1) Any executive or administrative state, county, or
243 municipal officer who violates his or her duties under this
244 chapter may be subject to action by the Governor in the exercise
245 of his or her authority under the State Constitution and state
246 law. Pursuant to s. 1(b), Art. IV of the State Constitution, the
247 Governor may initiate judicial proceedings in the name of the
248 state against such officers to enforce compliance with any duty
249 under this chapter or restrain any unauthorized act contrary to
250 this chapter.
251 (2) In addition, the Attorney General may file suit against
252 a local governmental entity or local law enforcement agency in a
253 court of competent jurisdiction for declaratory or injunctive
254 relief for a violation of this chapter.
255 (3) If a local governmental entity or local law enforcement
256 agency violates this chapter, the court must enjoin the unlawful
257 sanctuary policy. The court has continuing jurisdiction over the
258 parties and subject matter and may enforce its orders with the
259 initiation of contempt proceedings as provided by law.
260 (4) An order approving a consent decree or granting an
261 injunction must include written findings of fact that describe
262 with specificity the existence and nature of the sanctuary
263 policy that violates this chapter.
264 908.108 Education records.—This chapter does not apply to
265 the release of information contained in education records of an
266 educational agency or institution, except in conformity with the
267 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s.
268 1232g.
269 908.109 Discrimination prohibited.—A state entity, a local
270 governmental entity, or a law enforcement agency, or a person
271 employed by or otherwise under the direction or control of the
272 entity or agency, may not base its actions under this chapter on
273 the gender, race, religion, national origin, or physical
274 disability of a person except to the extent authorized by the
275 United States Constitution or the State Constitution.
276 Section 2. A sanctuary policy, as defined in s. 908.102,
277 Florida Statutes, that is in effect on the effective date of
278 this act violates the public policy of this state and must be
279 repealed within 90 days after that date.
280 Section 3. Section 908.107, Florida Statutes, as created by
281 this act, shall take effect October 1, 2019, and, except as
282 otherwise expressly provided in this act, this act shall take
283 effect July 1, 2019.