SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 350

56th legislature - STATE OF NEW MEXICO - first session, 2023

 

 

 

 

 

 

 

AN ACT

RELATING TO CRIME VICTIMS; ENACTING THE U VISA CERTIFICATION ACT; STANDARDIZING THE CERTIFICATION PROCESS FOR U VISA APPLICATIONS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] SHORT TITLE.--This act may be cited as the "U Visa Certification Act"."

     SECTION 2. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] DEFINITIONS--As used in the U Visa Certification Act:

          A. "accredited representative" means a person who:

                (1) is approved by the United States department of justice to represent a person before the United States department of homeland security; and

                (2) is employed by a nonprofit, religious, charitable, social service or other similar organization that is recognized by and in good standing with the United States department of justice to represent such persons;

          B. "certification form" means a United States citizenship and immigration services form I-918 supplement B, or any successor form, required by federal immigration law certifying that a person is a victim of a qualifying crime;

          C. "certifying entity" has the same definition as in 8 C.F.R. Section 214.14(a)(2) and includes:

                (1) an agency of the state or local political subdivision of the state that employs certified law enforcement officers, the police department of a tribe that has entered into an agreement with the department pursuant to Section 29-1-11 NMSA 1978 or any other authority or agency that has a responsibility for the detection, investigation or prosecution of a qualifying crime;

                (2) a district attorney's office;

                (3) a district court, children's court, family court, municipal court or magistrate court;

                (4) any other agency of the state or local political subdivision of the state that has the jurisdiction to detect, investigate or prosecute crimes; or

                (5) any entity that has criminal detection or investigative jurisdiction in the entity's area of expertise, including the human services department, the children, youth and families department and the workforce solutions department;

          D. "certifying official" means:

                (1) the principal official of a certifying entity;

                (2) a person in a supervisory role who has been specifically designated by the principal official of the certifying entity to issue United States citizenship and

immigration services form I-918 supplement B certifications;

                (3) a district court judge, children's court judge, family court judge, municipal court judge or magistrate; or

                (4) any other certifying official defined under 8 C.F.R. Section 214.14(a)(3);

          E. "helpfulness" means the victim possesses credible and reliable information based on the victim's knowledge of the details of the qualifying criminal activity or events leading up to the qualifying criminal activity, including specific facts about the qualifying criminal activity, that leads law enforcement to determine that the victim has assisted, is assisting or is likely to provide assistance in the investigation or prosecution of the qualifying criminal activity and includes an ongoing responsibility of the victim to provide assistance;

          F. "qualifying criminal activity" has the same definition as in 8 C.F.R. Section 214.14(a)(9) and includes any activity that constitutes a crime as defined pursuant to New Mexico law or local law for which the nature and elements of the offenses are substantially similar to the general categories of offenses enumerated in 8 U.S.C. Section 1101(a)(15)(U) or any other similar criminal activities, and the attempt, conspiracy or solicitation to commit any of those offenses, regardless of the statutory language or title used; and

          G. "victim" means an individual who has suffered direct and proximate harm as a result of the commission of a qualifying criminal activity and has the same meaning as in 8 C.F.R. Section 214.14(a)(14), which includes direct, indirect and bystander victims."

     SECTION 3. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] ELIGIBILITY FOR U VISA CERTIFICATION.--

          A. At the request of a victim, the guardian of a victim or the attorney or accredited representative of a victim, a certifying official shall certify, on the certification form, the occurrence of a qualifying criminal activity against the victim and the helpfulness of the victim; provided that the victim was helpful, is being helpful or is likely to be helpful to the detection, investigation or prosecution of the qualifying criminal activity.

          B. A victim who has neither refused nor failed to provide information and assistance reasonably requested shall be entitled to a presumption of helpfulness. If a victim has refused to provide assistance or cooperation, the certifying official shall determine if the request for assistance or the refusal was reasonable.

          C. More than one victim may be identified and provided with certification, depending upon the circumstances of the qualifying criminal activity.

          D. A certifying official shall not refuse to complete the certification form or to otherwise certify a victim's helpfulness when:

                (1) an investigation has already concluded;

                (2) a case has already been prosecuted or otherwise closed;

                (3) the time for commencing a criminal case has expired;

                (4) criminal charges were not filed;

                (5) there was no conviction for the alleged qualifying criminal activity; or

                (6) there was no prosecution for the alleged qualifying criminal activity.

          E. The certifying entity shall not consider any other factors in deciding whether to sign the certification form, except whether the individual was a victim of a qualifying criminal activity and the victim's helpfulness.

          F. A certifying official or a certifying entity shall not withdraw the certification except when the victim refuses to provide information or assistance after reasonable request as provided in Subsection B of Section 4 of the U Visa Certification Act."

     SECTION 4. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] U VISA CERTIFICATION PROCEDURES FOR CERTIFYING OFFICIALS.--

          A. A certifying official who has determined that a victim has been helpful shall:

                (1) fully complete and sign the certification form, describing:

                     (a) the nature of the qualifying criminal activity detected, investigated or prosecuted; and

                     (b) the victim's helpfulness or likely helpfulness to the detection, investigation or prosecution of the qualifying criminal activity; and

                (2) process the certification form within:

                     (a) thirty days of a victim's request for certification; or

                     (b) seven days from the first business day following the day the victim requested certification if the victim is engaged in immigration removal proceedings.

          B. A certifying official who has determined that a victim has not been helpful shall provide in writing to the victim or the victim's attorney or accredited representative the reasons for that determination. The certifying official shall submit this written decision to the address provided in the request, provide the certifying official's contact information and accept and respond to any appeal of the decision within thirty business days from the appeal.

          C. Upon a certifying official's determination that a victim has not been helpful, the victim or the victim's attorney or accredited representative may again seek certification from the same certifying entity or from multiple certifying entities.

          D. A certifying entity's or certifying official's inability to communicate with a victim due to disability or illness shall not be considered a refusal or failure by the victim to provide assistance.  

          E. Completion of a certification form by a certifying official:

                (1) is not sufficient evidence that a victim applying for a U Visa has met all eligibility requirements and does not guarantee that the victim will receive a U Visa;

                (2) is an attestation that the information contained in the certification form is true and correct to the best of the certifying official's knowledge; and

                (3) merely verifies factual information relevant to the federal immigration benefit sought. The determination of whether a victim is eligible for a U Visa is the exclusive responsibility of federal immigration officials.

          F. A certifying official shall not disclose the immigration status of a victim or a person requesting the certification form, except to comply with federal law or legal process or if authorized by the victim or person requesting the form.

          G. A certifying official or certifying entity who completes a certification form shall return the signed certification form to the requester along with an unredacted copy of the police report or incident report, free of charge, within seven days of the request, subject to release by law and unless already provided by another entity."

     SECTION 5. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] REPORTING REQUIREMENTS FOR CERTIFYING ENTITIES.--

          A. A certifying entity shall publish on the entity's website the entity's procedures for submitting U Visa certification requests.

          B. A certifying entity shall report to the legislature or the appropriate legislative committee annually:

                (1) the number of victims that requested a certification form from the certifying entity;

                (2) the dates on which the certifying entity received each request for certification of a certification form;

                (3) the dates on which the certifying entity provided either a completed certification form to the requester or a written statement of non-helpfulness;

                (4) the number of certification forms that were signed;

                (5) the number of certification forms that were denied;

                (6) the reason given for each denial of a certification form; and

                (7) the number of decisions that failed to satisfy the deadlines prescribed in the U Visa Certification Act.

          C. If there were no requests for completion of a certification form during a reporting period, the certifying entity shall certify and report that it received no requests.

          D. A certifying entity shall make its report available to the public upon request. A certifying entity shall not disclose any names or other personal identifying information in its reporting pursuant to this section."

     SECTION 6. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] ATTORNEY GENERAL ENFORCEMENT.--

          A. The attorney general shall have authority to conduct investigations of alleged violations of the U Visa Certification Act.

          B. The attorney general shall have authority to commence, intervene in or continue an action for declaratory, injunctive or any other equitable relief against a law enforcement agency, a law enforcement officer or any other person or entity who violates any provision of the U Visa Certification Act. These remedies are in addition to, and not in substitution for, other available remedies.

          C. The attorney general may:

                (1) require a law enforcement agency, a law enforcement officer or any other person or entity to provide a statement or report in writing, under oath, of all information that the attorney general may deem necessary;

                (2) examine, under oath, a law enforcement officer or any other person alleged to have participated in or with knowledge of the alleged violation; and

                (3) issue subpoenas, obtain records, conduct hearings or take any other actions in aid of an investigation pursuant to this section.  

          D. The attorney general may petition a court for an order to compel for any failure to comply with a subpoena, in whole or in part, or any other investigative request made pursuant to this section."

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