HB2942 100TH GENERAL ASSEMBLY

LRB100 09998 RLC 20170 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB2942

Introduced , by Rep. Allen Skillicorn

SYNOPSIS AS INTRODUCED:

See Index

Amends the Code of Criminal Procedure of 1963. Provides that a peace officer may not stop a motor vehicle or conduct a search of a business or residence solely to enforce a federal law relating to immigrants or immigration, including the federal Immigration and Nationality Act, unless the officer is acting: (1) at the request of, and providing assistance to, an appropriate federal law enforcement officer; or (2) under the terms of an agreement between the law enforcement agency employing the officer and the federal government under which the agency receives delegated authority to enforce federal law relating to immigrants or immigration. Provides that a peace officer may arrest an undocumented person only if the officer is acting under the authority granted under the Code. Establishes procedures that a law enforcement agency must follow related to arrestees subject to immigration detainers. Provides that any person may file a complaint with the Attorney General if the person offers evidence to support an allegation that a unit of local government has adopted, enforced, or endorsed a policy under which the unit of local government prohibits or discourages the enforcement of immigration laws or that the unit of local government, by consistent actions, prohibits or discourages the enforcement of those laws. Provides for equitable relief. Preempts home rule. Amends the State Comptroller Act. Provides that a unit of local government may not receive State grant funds if the unit of local government adopts, enforces, or endorses a policy under which the unit of local government prohibits or discourages the enforcement of immigration laws or, by consistent actions, prohibits or discourages the enforcement of immigration laws.

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The State Comptroller Act is amended by adding Section 9.07 as follows:

(15 ILCS 405/9.07 new)

Sec. 9.07. Denial of State grant funds.

(a) A unit of local government as defined in Section 107B-1 of the Code of Criminal Procedure of 1963 may not receive State grant funds if the unit of local government adopts, enforces, or endorses a policy under which the unit of local government prohibits or discourages the enforcement of immigration laws or, by consistent actions, prohibits or discourages the enforcement of immigration laws.

(b) State grant funds for a unit of local government shall be denied for the State fiscal year following the year in which a final judicial determination in an action brought under Section 107B-40 of the Code of Criminal Procedure of 1963 is made that the unit of local government has intentionally prohibited or discouraged the enforcement of immigration laws.

(c) The Comptroller shall adopt rules to implement this Section uniformly among the State agencies from which State grant funds are distributed to a unit of local government.

(d) A unit of local government that has not violated Section 107B-30 of the Code of Criminal Procedure of 1963 may not be denied State grant funds, regardless of whether the unit of local government is a part of another unit of local government that is in violation of that Section.

Section 10. The Code of Criminal Procedure of 1963 is amended by adding Article 107B as follows:

(725 ILCS 5/Art. Art. 107B heading new)

ARTICLE Art. 107B. ENFORCEMENT OF FEDERAL IMMIGRATION LAW

(725 ILCS 5/107B-1 new)

Sec. 107B-1. Definitions. In this Article:

"Immigration detainer" means a United States Department of Homeland Security Form I-247 or a similar or successor form that requests a unit of local government to maintain temporary custody of an alien for the federal government.

"Immigration laws" means the laws of this State or federal law relating to immigrants or immigration, including the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).

"Lawful detention" means the detention of a person by a unit of local government for the investigation of a criminal offense. The term excludes a detention if the sole reason for the detention is that the person:

(1) is a victim of or witness to a criminal offense; or

(2) is reporting a criminal offense.

"Policy" includes a formal, written rule, order, ordinance, or policy and an informal, unwritten policy.

"Unit of local government" has the meaning ascribed to the term in Section 1 of Article VII of the Illinois Constitution and includes a home rule unit.

(725 ILCS 5/107B-5 new)

Sec. 107B-5. Enforcement of federal immigration law.

(a) A peace officer may not stop a motor vehicle or conduct a search of a business or residence solely to enforce a federal law relating to immigrants or immigration, including the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.), unless the officer is acting:

(1) at the request of, and providing assistance to, an appropriate federal law enforcement officer; or

(2) under the terms of an agreement between the law enforcement agency employing the officer and the federal government under which the agency receives delegated authority to enforce federal law relating to immigrants or immigration.

(b) A peace officer may arrest an undocumented person only if the officer is acting under the authority granted under Section 107-2 of this Code.

(725 ILCS 5/107B-10 new)

Sec. 107B-10. Duties related to certain arrested persons.

(a) If a person is arrested and is unable to provide proof of the person's lawful presence in the United States, not later than 48 hours after the person is arrested and before the person is released on bond, a law enforcement agency performing the booking process shall:

(1) review any information available from the federal Priority Enforcement Program operated by United States Immigration and Customs Enforcement or a successor program; and

(2) if information obtained under paragraph (1) reveals that the person is not a citizen or national of the United States and is unlawfully present in the United States according to the terms of the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.):

(A) provide notice of that fact to the judge authorized to grant or deny the person's release on bail under Article 110 of this Code; and

(B) record that fact in the person's case file.

(b) A law enforcement agency is not required to perform a duty imposed by subsection (a) of this Section with respect to a person who is transferred to the custody of the agency by another law enforcement agency if the transferring agency performed that duty before transferring custody of the person.

(c) A judge who receives notice of a person's immigration status under this Article shall record that status in the court record.

(725 ILCS 5/107B-15 new)

Sec. 107B-15. Duties related to immigration detainer.

(a) A law enforcement agency that has custody of a person subject to an immigration detainer issued by United States Immigration and Customs Enforcement shall:

(1) provide to the judge authorized to grant or deny the person's release on bail under Article 110 of this Code notice that the person is subject to an immigration detainer;

(2) record in the person's case file that the person is subject to an immigration detainer; and

(3) comply with, honor, and fulfill the requests made in the detainer.

(b) A law enforcement agency is not required to perform a duty imposed by paragraph (a)(1) or (2) with respect to a person who is transferred to the custody of the agency by another law enforcement agency if the transferring agency performed that duty before transferring custody of the person.

(c) A judge who receives notice that a person is subject to a detainer under this Article shall record that fact in the court record, regardless of whether the notice is received before or after a judgment in the case.

(725 ILCS 5/107B-20 new)

Sec. 107B-20. Release to federal custody.

(a) This Article applies only to a criminal case in which:

(1) the judgment requires the defendant to be confined in a secure correctional facility; and

(2) the judge:

(A) indicates in the record under this Article that the defendant is subject to an immigration detainer; or

(B) otherwise indicates in the record that the defendant is subject to a transfer into federal custody.

(b) In a criminal case described in subsection (a) of this Section, the judge shall, at the time of pronouncement of a sentence of confinement, issue an order requiring the secure correctional facility in which the defendant is to be confined to reduce the defendant's sentence by a period of not more than 7 days on the facility's determination that the reduction in sentence will facilitate the seamless transfer of the defendant into federal custody. For purposes of this subsection (b), "secure correctional facility" means a municipal or county jail; or a facility operated by or under a contract with the Department of Corrections.

(c) If the applicable information described in subparagraph (a)(2)(A) or (B) is not available at the time sentence is pronounced in the case, the judge shall issue the order described in subsection (b) of this Section as soon as the information becomes available.

(725 ILCS 5/107B-25 new)

Sec. 107B-25. Applicability of Article.

(a) This Article does not apply to:

(1) a school district or open-enrollment charter school;

(2) the release of information contained in education records of an educational agency or institution, except in conformity with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).

(b) This Article does not apply to a hospital or hospital district created under the Hospital District Law to the extent that the hospital or hospital district is providing access to or delivering medical or health care services as required under the following applicable federal or State laws:

(1) 42 U.S.C. Section 1395dd;

(2) 42 U.S.C. Section 1396b(v);

(3) the Community Benefits Act;

(4) Section 6.08 of the Hospital Licensing Act;

(5) Section 2-114 of the MC/DD Act;

(6) Section 2-114 of the Nursing Home Care Act;

(7) Section 2-114 of the ID/DD Community Care Act; or

(8) Section 3-114 of the Specialized Mental Health Rehabilitation Act of 2013.

(c) Subsection (b) of this Section does not exclude the application of this Article to a sworn peace officer employed by a hospital or hospital district subject to subsection (b) of this Section.

(725 ILCS 5/107B-30 new)

Sec. 107B-30. Unit of local government policy regarding immigration enforcement.

(a) A unit of local government may not adopt, enforce, or endorse a policy under which the unit of local government prohibits or discourages the enforcement of immigration laws.

(b) In compliance with subsection (a) of this Section, a unit of local government may not prohibit or discourage a person who is a sworn peace officer, a corrections officer, a booking clerk, a judge, or a State's Attorney, or other prosecuting attorney and who is employed by or otherwise under the direction or control of the unit of local government from doing any of the following:

(1) inquiring into the immigration status of a person under a lawful detention or under arrest;

(2) with respect to information relating to the immigration status, lawful or unlawful, of any person under a lawful detention or under arrest:

(A) sending the information to or requesting or receiving the information from United States Citizenship and Immigration Services or United States Immigration and Customs Enforcement, including information regarding a person's place of birth;

(B) maintaining the information; or

(C) exchanging the information with another unit of local government or a federal or State governmental unit;

(3) assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance; or

(4) permitting a federal immigration officer to enter and conduct enforcement activities at a municipal or county jail to enforce federal immigration laws.

(725 ILCS 5/107B-35 new)

Sec. 107B-35. Discrimination prohibited. A unit of local government or a person employed by or otherwise under the direction or control of the unit of local government may not consider race, color, language, or national origin while enforcing immigration laws except to the extent permitted by the United States Constitution or the Illinois Constitution.

(725 ILCS 5/107B-40 new)

Sec. 107B-40. Complaint; equitable relief.

(a) Any person, including the federal government, may file a complaint with the Attorney General if the person offers evidence to support an allegation that a unit of local government has adopted, enforced, or endorsed a policy under which the unit of local government prohibits or discourages the enforcement of immigration laws or that the unit of local government, by consistent actions, prohibits or discourages the enforcement of those laws. The person must include with the complaint the evidence the person has that supports the complaint.

(b) A unit of local government for which the Attorney General has received a complaint under subsection (a) of this Section shall comply with a document request, including a request for supporting documents, from the Attorney General related to the complaint.

(c) If the Attorney General determines that a complaint filed under subsection (a) of this Section against a unit of local government is valid, the Attorney General shall, not later than 10 days after the date of the determination, provide written notification to the unit of local government that:

(1) the complaint has been filed;

(2) the Attorney General has determined that the complaint is valid;

(3) the Attorney General may file an action to enjoin the violation if the unit of local government does not come into compliance with the requirements of Section 107B-30 of this Code on or before 90 days after the date the notification is provided; and

(4) the unit of local government shall be denied State grant funds for the State fiscal year following the year in which a final judicial determination in an action brought under subsection (e) of this Section is made.

(d) Not later than the 30th day after the day a unit of local government receives written notification under subsection (c) of this Section, the unit of local government shall provide the Attorney General with a copy of:

(1) the unit of local government's written policies related to immigration enforcement actions;

(2) each immigration detainer received by the unit of local government from the United States Department of Homeland Security; and

(3) each response sent by the unit of local government for a detainer described in paragraph (2) of this subsection (d).

(e) If the Attorney General determines that a complaint filed under subsection (a) of this Section against a unit of local government is valid, the Attorney General may file a petition for a writ of mandamus or apply for other appropriate equitable relief in a circuit court in a county in which the principal office of the unit of local government is located to compel the unit of local government that adopts, enforces, or endorses a policy under which the unit of local government prohibits or discourages the enforcement of immigration laws or that, by consistent actions, prohibits or discourages the enforcement of those laws to comply with Section 107B-30 of this Code. The Attorney General may recover reasonable expenses incurred in obtaining relief under this subsection, including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition costs.

(f) An appeal of a suit brought under subsection (e) of this Section is governed by Illinois Supreme Court Rule 311(b) for discretionary acceleration of appeals. The Appellate Court shall render its final order or judgment with the least possible delay.

(725 ILCS 5/107B-45 new)

Sec. 107B-45. Home rule. The adoption, enforcement, or endorsement of a policy under which a unit of local government enforces immigration laws, is an exclusive power and function of the State. A home rule unit may not regulate enforcement of immigration laws in a manner inconsistent with this Article and any ordinance or local law contrary to this Article is declared void. This is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.