HB3099 100TH GENERAL ASSEMBLY

LRB100 11030 SLF 21269 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3099

Introduced , by Rep. Elizabeth Hernandez

SYNOPSIS AS INTRODUCED:

See Index

Creates the Illinois Trust Act. Provides that no law enforcement agency may detain or continue to detain any individual solely on the basis of any immigration detainer or administrative warrant, or otherwise comply with an immigration detainer or administrative warrant, after that individual becomes eligible for release from custody. Provides that a law enforcement official or other law enforcement agency personnel shall not give an immigration agent access to an individual or allow an immigration agent to use law enforcement agency facilities for investigative interviews or other investigative purposes; transfer a person into an immigration agent's custody; permit federal Immigration Custom Enforcement agents use of agency facilities, information, or equipment, including an agency's electronic database for investigative interviews or other investigative purpose or for purposes of executing an immigration enforcement operation; or respond to immigration agent inquiries regarding an individual's incarceration status, release date, or contact information except insofar as the agency makes that information available to the public. Amends the Police Training Act. Requires the Illinois Law Enforcement Training Standards Board to conduct or approve a training program on federal U and T nonimmigrant visas and other federal immigration remedies for immigrant victims of qualifying criminal activity. Amends the Juvenile Court Act of 1987. Makes changes in provisions concerning special immigrant juvenile status. Amends the Code of Criminal Procedure of 1963. Provides that no person subject to an immigration detainer or administrative warrant shall be denied bail solely on the basis of that immigration detainer or administrative warrant. Makes changes in provisions concerning post-conviction proceedings. Makes other changes. Effective immediately.

A BILL FOR

AN ACT concerning immigration.

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

Section 1. Short title. This Act may be cited as the Illinois Trust Act.

Section 5. Legislative intent. It is the intent of the General Assembly that Act shall not be construed as providing, expanding, or ratifying the legal authority for any State or local law enforcement agency to detain an individual on an immigration detainer or administrative warrant or perform any other civil immigration enforcement function.

Section 10. Definitions. In this Act:

"Administrative warrant" means an immigration warrant of arrest, order to detain or release aliens, notice of custody determination, notice to appear, removal order, warrant of removal, or any other document issued by an immigration agent that can form the basis for an individual's arrest or detention for a civil immigration enforcement purpose. "Administrative warrant" does not mean a warrant issued by a criminal court upon a determination of probable cause and in compliance with the requirements of the Fourth Amendment to the United States Constitution and Article I, Section 6 of the Illinois Constitution.

"Certification" means any law enforcement certification or statement required by federal immigration law including, but not limited to, the information required by Section 1184(p) of Title 8 of the United States Code (including current United States Citizenship and Immigration Service Form I-918, Supplement B, or any successor forms) for purposes of obtaining a U visa, or by Section 1184(o) of Title 8 of the United States Code (including current United States Citizenship and Immigration Service Form I-914, Supplement B, or any successor forms) for purposes of obtaining a T visa.

"Certifying agency" means a State or local law enforcement agency, prosecutor, or other authority that has responsibility for the investigation or prosecution of criminal activity including any agency that has criminal investigative jurisdiction in its respective areas of expertise specifically including the Department of Labor, the Department of Children and Family Services, the Department of Human Services, and the Workers' Compensation Commission of this State. "Certifying agency" does not include any State court.

"Citizenship or immigration status" means all matters regarding questions of citizenship of the United States or another country, the authority to reside in or otherwise be present in the United States, the time or manner of a person's entry into the United States, or any other civil immigration matter enforced by the federal Department of Homeland Security or other federal agency charged with the enforcement of civil immigration laws.

"Coerce" means to use express or implied threats towards a person or any family member of a person that attempts to put the person in immediate fear of those consequences in order to compel that person to act against his or her will.

"Contact information" means home address, work address, telephone number, electronic mail address, social media information, or any other personal identifying information that could be used as a means to contact an individual.

"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:

(1) all criminal charges against the individual have been dropped or dismissed;

(2) the individual has been acquitted of all criminal charges filed against him or her;

(3) the individual has served all the time required for his or her sentence;

(4) the individual has posted a bond; or

(5) the individual is otherwise eligible for release under State or local law.

"Family member" means a person's (i) mother, father, spouse, brother or sister (including blood, step, or half), son or daughter (including blood, step, or half), father-in-law, mother-in-law, daughter-in-law, son-in-law, brother-in-law, sister-in-law, grandparent or grandchild; or (ii) a court-appointed legal guardian or a person for whom the person is a court-appointed legal guardian; or (iii) a domestic partner or the domestic partner's mother, father, brother or sister (including blood, step, or half), or son or daughter (including blood, step, or half).

"Immigration agent" means an agent of federal Immigration and Customs Enforcement or federal Customs and Border Protection, an individual authorized to conduct enforcement of civil immigration laws under Section 1357(g) of Title 8 of the United States Code or any other federal law, any other federal agent charged with enforcement of civil immigration laws, or any successor.

"Immigration detainer" means a document issued by an immigration agent to a federal, State, or local law enforcement agency that requests that the law enforcement agency provide notice of release or maintain custody of a person based on an alleged violation of a civil immigration law, including detainers issued under Section 287.7 of Title 8 of the United States Code or Section 236.1 of the Code of Federal Regulations.

"Immigration enforcement operation" means an operation that has as one of its objectives the identification or apprehension of a person or persons: (1) in order to subject them to civil immigration detention, removal proceedings, and removal from the United States, or (2) to criminally prosecute a person or persons for offenses related to immigration status, including but not limited to violations of Sections 1253, 1304, 1306(a) and (b), 1325, or 1326 of Title 8 of the United States Code.

"Law enforcement agency" means an agency in this State charged with enforcement of State, county, or municipal laws or with managing custody of detained persons in the State, including municipal police departments, sheriff's departments, campus police departments, the Department of State Police, and the Department of Juvenile Justice.

"Law enforcement official" means an officer or other agent of a State or local law enforcement agency authorized to enforce criminal laws, rules, regulations, or local ordinances or to operate jails, correctional facilities, or juvenile detention facilities or to maintain custody of individuals in jails, correctional facilities, or juvenile detention facilities.

"Qualifying criminal activity" means an activity involving one or more of the following or any similar activity in violation of federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in Section 1351 of Title 18 of the United States Code); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes. "Qualifying criminal activity" also means criminal activity that has an articulable similarity to any activity listed under this definition, but is not specifically listed. "Qualifying criminal activity" also means any qualifying criminal activity that occurs during the commission of non-qualifying criminal activity, regardless of whether or not criminal prosecution was sought for the qualifying criminal activity.

"Verbal abuse" means the use of a remark which is overtly insulting, mocking, or belittling that is directed at a person based upon the actual or perceived: (1) race, color, sex, religion, national origin, English proficiency, sexual orientation, or gender identity of that person, or (2) citizenship or immigration status of that person or that person's family member.

"Victim of qualifying criminal activity" means an individual who:

(1) has reported qualifying criminal activity to a law enforcement agency or certifying agency;

(2) has otherwise participated in the detection, investigation, or prosecution of qualifying criminal activity;

(3) has suffered direct or proximate harm as a result of the commission of any qualifying criminal activity including, but not limited to, any indirect victim, regardless of the direct victim's immigration or citizenship status, who is the direct victim's spouse or child under 21 years of age, or who is the direct victim's parents or unmarried siblings under 18 years of age of the direct victim if the direct victim is under 21 years of age, deceased, incompetent, or incapacitated; or

(4) was a victim of a severe form of trafficking in persons as defined in Section 7102 of Title 22 of the United States Code and Section 10-9 of the Criminal Code of 2012.

Bystander victim may also be considered as a "victim of qualifying criminal activity". More than one victim may be identified and provided with certification depending upon the circumstances. For purposes of this definition of "victim of qualifying criminal activity," the term "incapacitated" means unable to interact with law enforcement agency or certifying agency personnel as a result of a cognitive impairment or other physical limitation, or because of physical restraint or disappearance.

Section 15. Prohibited immigration enforcement activities; exceptions.

(a) No law enforcement agency may detain or continue to detain an individual solely on the basis of an immigration detainer or administrative warrant or otherwise comply with an immigration detainer or administrative warrant after that individual becomes eligible for release from custody.

(b) A law enforcement official shall not stop, arrest, search, detain, or continue to detain a person solely based on an individual's citizenship or immigration status or on an administrative warrant entered into the Federal Bureau of Investigation's National Crime Information Center database, or any successor or similar database maintained by the United States.

(c) A law enforcement agency shall not enter into an agreement under Section 1357(g) of Title 8 of the United States Code or any other federal law that permits State or local governmental entities to enforce federal civil immigration laws.

(d) A law enforcement agency shall not be permitted to accept requests by immigration agents or other agencies to support or assist in any capacity with immigration enforcement operations, including, but not limited to, requests to provide information on persons that may be the subject of immigration enforcement operations, except as may be required under subsection (g) of this Section, to establish traffic perimeters, or to otherwise be present to assist or support an operation.

(e) Except as provided in subsection (f) of this Section, a law enforcement official or other law enforcement agency personnel shall not:

(1) give an immigration agent access to an individual or allow an immigration agent to use law enforcement agency facilities for investigative interviews or other investigative purposes;

(2) transfer a person into an immigration agent's custody;

(3) permit federal Immigration Custom Enforcement agents use of agency facilities, information, except as may be required under subsection (g) of this Section, or equipment, including an agency's electronic database for investigative interviews or other investigative purpose or for purposes of executing an immigration enforcement operation; or

(4) respond to immigration agent inquiries regarding a person's incarceration status, release date, or contact information except insofar as the agency makes that information available to the public.

(f) If an immigration agent presents to a law enforcement official or law enforcement agency a valid and properly issued criminal warrant related to the investigation or prosecution of a criminal offense, including offenses provided for in the laws of another state or federal law, or the immigration agent otherwise demonstrates that he or she is engaged in the investigation or prosecution of a criminal offense, the law enforcement official or law enforcement agency may conduct any of the activities listed in subsection (e) of this Section or otherwise communicate or coordinate with an immigration agent solely for assisting that specific purpose.

(g) Nothing in this Section prohibits a State or local entity or official from sending to, or receiving from, any local, State, federal agency, information regarding an individual's citizenship or immigration status. All law enforcement agencies shall instruct their officials that federal law does not allow this prohibition. "Information regarding an individual's citizenship or immigration status," for purposes of this subsection, means a statement of the individual's country of citizenship or a statement of the individual's immigration status.

(h) Subsections (a), (d), (e), (f), and (g) of this Section shall not apply to the Department of Corrections.

(i) Nothing in this Section shall be construed as restricting any expenditure or activity necessary to the performance by the State, any local unit of government, or any law enforcement or other agency, official, employee, or agent of any obligations under any contract between the State, a local unit of government, and the agency and federal officials regarding the use of a facility to detain individuals in federal immigration removal proceedings.

Section 20. Prohibited activities related to immigration detention facilities. Notwithstanding subsection (i) of Section 15 of this Act, no State, local unit of government, or agency shall be permitted to contract with a private for-profit vendor or contractor for the provision of services, other than ancillary services as defined under the Section 3 of Private Correctional Facility Moratorium Act, relating to the operation or management of a facility to detain individuals in federal immigration removal proceedings, or to approve any permits, zoning changes, or other measures required for, or to otherwise facilitate the construction, operation, or management of such a facility.

Section 25. Other prohibited activities; verbal abuse and coercion. A law enforcement agency or law enforcement official shall not:

(a) coerce a person based upon the person's actual or perceived citizenship or immigration status or the actual or perceived citizenship or immigration status of the person's family member;

(b) communicate a threat to deport that person or any family member of that person under circumstances that reasonably tend to produce a fear that the threat will be carried out; or

(c) otherwise subject a person to verbal abuse as defined by Section 10 of this Act.

Section 30. Certifications for victims of qualifying criminal activity.

(a) A certifying agency shall execute a certification requested by a victim of qualifying criminal activity or representative of the victim including, but not limited to, the victim's attorney, accredited representative, or domestic violence service provider, within 90 days of receiving the request. If the victim seeking certification is in federal immigration removal proceedings, then the certifying agency shall execute the certification no later than 14 days after the request is received by the agency. If the victim or the victim's children would lose any benefits under Sections 1184(p) and 1184(o) of Title 8 of the United States Code by virtue of having reached the age of 21 years within 90 days after the certifying agency receives the certification request, then the certifying agency shall execute the certification no later than 14 days before the date on which the victim or child would reach the age of 21 years. Requests for expedited certification shall be affirmatively raised by the victim or representative of the victim.

(b) If a certifying agency fails to certify within the time limit prescribed in subsection (a) of this Section or a victim of qualifying criminal activity or representative of the victim disputes the content of a certification, then the victim of qualifying criminal activity may bring an action in circuit court to seek certification or amend the certification. The court shall award court costs and reasonable attorneys' fees to any person who brings a proceeding brought under this subsection (b) who prevails. Nothing in this subsection (b) shall limit a State judge's authority to execute a certification outside the procedures established by this Section.

(c) The head of each certifying agency or a designated agent who performs a supervisory role within the certifying agency shall:

(1) respond to requests for certifications as required by this Section;

(2) provide outreach to victims of qualifying criminal activity to inform them of the agency's certification process; and

(3) keep written records of all certification requests and responses, which shall be reported to the Illinois Trust Act Compliance Board on an annual basis.

(d) A certifying agency shall reissue any certification within 90 days of receiving a request from the victim of qualifying criminal activity or representative of the victim including, but not limited to, the victim's attorney, accredited representative, or domestic violence service provider.

(e) Notwithstanding any other provision of this Section, a certifying agency's completion of a certification shall not be considered sufficient evidence to show the victim has met the eligibility requirements for a U or T visa under federal law and completion of a certification by a certifying agency shall not be construed to guarantee that a victim will receive federal immigration relief. It is the exclusive responsibility of federal immigration officials to determine whether a victim of qualifying criminal activity is eligible for a U or T visa. Completion of a certification by a certifying agency merely verifies factual information relevant to the immigration benefit sought including information relevant for federal immigration officials to determine eligibility for a U or T visa. By completing a certification, the certifying agency attests that the information is true and correct to the best of the certifying official's knowledge. If after completion of a certification, the victim unreasonably refuses to assist in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim, then the certifying agency may notify the United States Citizenship and Immigration Service in writing.

(f) All certifying agencies not subject to the training requirements established in Section 10.17 of the Illinois Police Training Act shall adopt a training program on federal U and T nonimmigrant visas and other remedies for immigrant victims of qualifying criminal activity.

(g) All certifying agencies shall adopt and implement a language access protocol for non-English speaking victims of qualifying criminal activity.

Section 35. Equal access to educational, rehabilitative, and diversionary programs in the criminal justice system.

Neither the Department of Corrections nor any law enforcement agency may consider an immigration detainer or administrative warrant in determining an individual's eligibility or placement in any educational, rehabilitative, or diversionary program described in Chapter 730 of the Illinois Compiled Statutes or any other educational, rehabilitative, or diversionary program administered by a law enforcement agency.

Section 40. Compliance Board; oversight.

(a) The Governor shall appoint, with the advice and consent of the Senate, an Illinois Trust Act Compliance Board within 90 days after the effective date of this Act. The Board shall consist of 13 members serving terms of 3 years, and the members shall elect their chairperson. No more than 7 members shall be of the same political party. All appointments shall be made in writing and filed with the Secretary of State as a public record.

(b) The Board shall consist of the following members:

(1) one representative of the Governor's office;

(2) one representative of the Attorney General's office;

(3) one representative of the Illinois Legislative Latino Caucus;

(4) one representative of law enforcement from the Chicago Police Department;

(5) one representative of law enforcement from Cook County;

(6) 2 representatives of law enforcement from outside of Cook County;

(7) one representative that advocates for immigrants in the Latino and Hispanic community in this State;

(8) one representative that advocates for immigrants in the Asian American community in this State;

(9) one representative that advocates for immigrants in the African, Arab, or Muslim American community in this State;

(10) one representative that advocates for immigrant in this State;

(11) 2 representatives that advocate for immigrant victims of domestic violence in this State;

(c) This Board shall be charged with the following responsibilities:

(1) monitoring compliance with this Act;

(2) disseminating information about this Act to affected communities and the general public;

(3) establishing mechanisms by which the public can report concerns and recommendations regarding implementation of this Act;

(4) identifying implementation issues and other trends to provide recommendations to the Governor and the Attorney General for addressing these issues;

(5) conducting research regarding sharing personally identifiable information between law enforcement agencies and federal Immigration and Customs Enforcement, including but not limited to, research regarding:

(A) requests for or investigations involving personally identifiable information by law enforcement agencies and officials,

(B) sharing of information and data posted in the Law Enforcement Agencies Database System (LEADS) or any other State administered database to which immigration agents have access,

(C) immigration agents' use of the LEADS database or any other State administered database, and

(D) the impact of the requests, investigations, and sharing and use of information on relations between law enforcement agencies and immigrant communities;

(6) conducting additional research as may be necessary, including, but not limited to, requesting and disseminating data from law enforcement agencies relevant to this Act and this Act's impact on law enforcement agencies, police-community relations, affected communities, and the State overall;

(7) publishing a report of its activities not less than once each calendar year; and

(8) any other responsibilities relating to this Act as the Board may identify.

Section 45. Private right of action.

(a) A person may bring an action in State circuit court to challenge any law enforcement official or agency for failure to fully comply with this Act. If there is a judicial finding that a law enforcement official or agency has violated this Act, then the court shall order that the law enforcement official or agency pay a civil penalty of not less than $1,000 and not more than $5,000 for each instance that the law enforcement official or agency has violated this Act.

(b) The court shall collect the civil penalty prescribed in subsection (a) and remit the civil penalty to the Crime Victim Services Division of the Office of the Attorney General for use in its programs to assist victims of crime.

(c) The court may award court costs and reasonable attorneys' fees to any person who prevails by an adjudication on the merits in a proceeding brought under this section.

(d) Except in relation to matters in which a law enforcement officer is adjudged to have acted in bad faith, a law enforcement officer shall be indemnified by the law enforcement agency for reasonable costs and expenses, including attorneys' fees, incurred by an officer in connection with any action, suit, or proceeding brought under this section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.

Section 50. The Illinois Police Training Act is amended by adding Section 10.17-5 as follows:

(50 ILCS 705/10.17-5 new)

Sec. 10.17-5. Training; federal nonimmigrant visas. The Illinois Law Enforcement Training Standards Board shall conduct or approve a training program on federal U and T nonimmigrant visas and other federal immigration remedies for immigrant victims of qualifying criminal activity as defined in Section 10 of the Illinois Trust Act. Each law enforcement agency's continuing education program shall provide to the head of the agency and the agency's certifying agent, as designated under subsection (c) of Section 30 of the Illinois Trust Act, continuing education concerning federal U and T nonimmigrant visas, and continuing education concerning cultural diversity awareness.

Section 55. The Juvenile Court Act of 1987 is amended by changing Section 2-4a as follows:

(705 ILCS 405/2-4a)

Sec. 2-4a. Special Immigrant Juvenile Status Special immigrant minor.

(a) (Blank). Except as otherwise provided in this Act, a special immigrant minor under 18 years of age who has been made a ward of the court may be deemed eligible by the court for long-term foster care due to abuse, neglect, or abandonment and remain under the jurisdiction of the juvenile court until his or her special immigrant juvenile status and adjustment of status applications are adjudicated. The petition filed on behalf of the special immigrant minor must allege that he or she otherwise satisfies the prerequisites for special immigrant juvenile status pursuant to 8 U.S.C. Section 1101(a)(27)(J) and must state the custodial status sought on behalf of the minor.

(a-5) Upon filing of a petition on behalf of an immigrant minor alleging that the minor satisfies the prerequisites for special immigrant juvenile status under 8 U.S.C. 1101(a)(27)(J) and stating the custodial status sought on behalf of the minor, (b) For the purposes of this Section, a juvenile court shall declare the may make a finding that a special immigrant minor a dependent of the court, order that an immigrant minor be placed under the custody of an appropriate State agency, or order that an immigrant minor be placed with an individual or entity appointed by the State or the court, is eligible for long term foster care if the court makes the following findings:

(1) That a reasonable diligent search for one or both of the biological parents or , prior adoptive parents, or prior legal guardians has been conducted; and

(2) That reunification with one or both of the minor's biological parents or prior adoptive parents is not a viable option due to abuse, neglect, abandonment, or other similar basis; and .

(3) That it would not be in the immigrant minor's best interest to be returned to the minor's or parent's previous country of nationality or country of last habitual residence.

(b) An immigrant minor for whom the court makes the necessary findings under subsection (a-5) shall remain under the jurisdiction of the court until his or her special immigrant juvenile status and adjustment of status applications are adjudicated by the United States Citizenship and Immigration Services or its successor agency with such responsibilities.

(c) For the purposes of this Section:

(1) The terms "neglected or abused minor" and "dependent minor" as described in Sections 2-3 and 2-4 of the Act shall include a minor under the age of 21 years.

(2) The term "abandonment" means any occasion when a biological or adoptive the failure of a parent whether intentionally, negligently, or due to a physical or mental disability, fails or legal guardian to maintain a reasonable degree of interest, concern, or responsibility for the welfare of his or her minor child or when a diligent search has been conducted and one parent is not located or one parent has died ward.

(2) (Blank). The term "special immigrant minor" means an immigrant minor who (i) is present in the United States and has been made a ward of the court and (ii) for whom it has been determined by the juvenile court or in an administrative or judicial proceeding that it would not be in his or her best interests to be returned to his or her previous country of nationality or country of last habitual residence.

(d) (Blank). This Section does not apply to a minor who applies for special immigrant minor status solely for the purpose of qualifying for financial assistance for himself or herself or for his or her parents, guardian, or custodian.

(Source: P.A. 93-145, eff. 7-10-03.)

Section 60. The Cannabis Control Act is amended by changing Section 10 as follows:

(720 ILCS 550/10) (from Ch. 56 1/2, par. 710)

Sec. 10. (a) Whenever any person who has not previously been convicted of, or placed on probation or court supervision for, any offense under this Act or any law of the United States or of any State relating to cannabis, or controlled substances as defined in the Illinois Controlled Substances Act, pleads guilty to or is found guilty of violating Sections 4(a), 4(b), 4(c), 5(a), 5(b), 5(c) or 8 of this Act, the court may, without entering a judgment and with the consent of such person, sentence him to probation.

(b) When a person is placed on probation, the court shall enter an order specifying a period of probation of 24 months, and shall defer further proceedings in the case until the conclusion of the period or until the filing of a petition alleging violation of a term or condition of probation.

(c) The conditions of probation shall be that the person: (1) not violate any criminal statute of any jurisdiction; (2) refrain from possession of a firearm or other dangerous weapon; (3) submit to periodic drug testing at a time and in a manner as ordered by the court, but no less than 3 times during the period of the probation, with the cost of the testing to be paid by the probationer; and (4) perform no less than 30 hours of community service, provided community service is available in the jurisdiction and is funded and approved by the county board.

(d) The court may, in addition to other conditions, require that the person:

(1) make a report to and appear in person before or participate with the court or such courts, person, or social service agency as directed by the court in the order of probation;

(2) pay a fine and costs;

(3) work or pursue a course of study or vocational training;

(4) undergo medical or psychiatric treatment; or treatment for drug addiction or alcoholism;

(5) attend or reside in a facility established for the instruction or residence of defendants on probation;

(6) support his dependents;

(7) refrain from possessing a firearm or other dangerous weapon;

(7-5) refrain from having in his or her body the presence of any illicit drug prohibited by the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, unless prescribed by a physician, and submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug;

(8) and in addition, if a minor:

(i) reside with his parents or in a foster home;

(ii) attend school;

(iii) attend a non-residential program for youth;

(iv) contribute to his own support at home or in a foster home.

(e) Upon violation of a term or condition of probation, the court may enter a judgment on its original finding of guilt and proceed as otherwise provided.

(f) Upon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him.

(g) A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime (including the additional penalty imposed for subsequent offenses under Section 4(c), 4(d), 5(c) or 5(d) of this Act).

(h) Discharge and dismissal under this Section, Section 410 of the Illinois Controlled Substances Act, Section 70 of the Methamphetamine Control and Community Protection Act, Section 5-6-3.3 or 5-6-3.4 of the Unified Code of Corrections, or subsection (c) of Section 11-14 of the Criminal Code of 1961 or the Criminal Code of 2012 may occur only once with respect to any person.

(i) If a person is convicted of an offense under this Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act within 5 years subsequent to a discharge and dismissal under this Section, the discharge and dismissal under this Section shall be admissible in the sentencing proceeding for that conviction as a factor in aggravation.

(j) Notwithstanding subsection (a), before a person is sentenced to probation under this Section, the court may refer the person to the drug court established in that judicial circuit pursuant to Section 15 of the Drug Court Treatment Act. The drug court team shall evaluate the person's likelihood of successfully completing a sentence of probation under this Section and shall report the results of its evaluation to the court. If the drug court team finds that the person suffers from a substance abuse problem that makes him or her substantially unlikely to successfully complete a sentence of probation under this Section, then the drug court shall set forth its findings in the form of a written order, and the person shall not be sentenced to probation under this Section, but may be considered for the drug court program.

(k) In any case in which a person is sentenced to probation under this Section and has performed satisfactorily during the period in which probation was granted and any criminal charge against that person was discharged and dismissed under this Section, the court shall, upon request of the defendant, permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty, and the court shall dismiss the complaint or information against the defendant. If court records showing the case resolution are no longer available, the person's declaration, under penalty of perjury, that the charges were dismissed after he or she completed the requirements for probation, shall be presumed to be true if the person has submitted a copy of his or her summary of criminal history information maintained by the Department of Justice that either shows that the defendant successfully completed the probation or that the record is incomplete in that it does not show a final disposition. For purposes of this Section, a final disposition means that the summary of criminal history information shows either a dismissal after completion of the probation or a sentence after termination of the probation.

(Source: P.A. 98-164, eff. 1-1-14; 99-480, eff. 9-9-15.)

Section 65. The Illinois Controlled Substances Act is amended by changing Section 410 as follows:

(720 ILCS 570/410) (from Ch. 56 1/2, par. 1410)

Sec. 410. (a) Whenever any person who has not previously been convicted of, or placed on probation or court supervision for any offense under this Act or any law of the United States or of any State relating to cannabis or controlled substances, pleads guilty to or is found guilty of possession of a controlled or counterfeit substance under subsection (c) of Section 402 or of unauthorized possession of prescription form under Section 406.2, the court, without entering a judgment and with the consent of such person, may sentence him or her to probation.

(b) When a person is placed on probation, the court shall enter an order specifying a period of probation of 24 months and shall defer further proceedings in the case until the conclusion of the period or until the filing of a petition alleging violation of a term or condition of probation.

(c) The conditions of probation shall be that the person: (1) not violate any criminal statute of any jurisdiction; (2) refrain from possessing a firearm or other dangerous weapon; (3) submit to periodic drug testing at a time and in a manner as ordered by the court, but no less than 3 times during the period of the probation, with the cost of the testing to be paid by the probationer; and (4) perform no less than 30 hours of community service, provided community service is available in the jurisdiction and is funded and approved by the county board.

(d) The court may, in addition to other conditions, require that the person:

(1) make a report to and appear in person before or participate with the court or such courts, person, or social service agency as directed by the court in the order of probation;

(2) pay a fine and costs;

(3) work or pursue a course of study or vocational training;

(4) undergo medical or psychiatric treatment; or treatment or rehabilitation approved by the Illinois Department of Human Services;

(5) attend or reside in a facility established for the instruction or residence of defendants on probation;

(6) support his or her dependents;

(6-5) refrain from having in his or her body the presence of any illicit drug prohibited by the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, unless prescribed by a physician, and submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug;

(7) and in addition, if a minor:

(i) reside with his or her parents or in a foster home;

(ii) attend school;

(iii) attend a non-residential program for youth;

(iv) contribute to his or her own support at home or in a foster home.

(e) Upon violation of a term or condition of probation, the court may enter a judgment on its original finding of guilt and proceed as otherwise provided.

(f) Upon fulfillment of the terms and conditions of probation, the court shall discharge the person and dismiss the proceedings against him or her.

(g) A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.

(h) There may be only one discharge and dismissal under this Section, Section 10 of the Cannabis Control Act, Section 70 of the Methamphetamine Control and Community Protection Act, Section 5-6-3.3 or 5-6-3.4 of the Unified Code of Corrections, or subsection (c) of Section 11-14 of the Criminal Code of 1961 or the Criminal Code of 2012 with respect to any person.

(i) If a person is convicted of an offense under this Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act within 5 years subsequent to a discharge and dismissal under this Section, the discharge and dismissal under this Section shall be admissible in the sentencing proceeding for that conviction as evidence in aggravation.

(j) Notwithstanding subsection (a), before a person is sentenced to probation under this Section, the court may refer the person to the drug court established in that judicial circuit pursuant to Section 15 of the Drug Court Treatment Act. The drug court team shall evaluate the person's likelihood of successfully completing a sentence of probation under this Section and shall report the results of its evaluation to the court. If the drug court team finds that the person suffers from a substance abuse problem that makes him or her substantially unlikely to successfully complete a sentence of probation under this Section, then the drug court shall set forth its findings in the form of a written order, and the person shall not be sentenced to probation under this Section, but may be considered for the drug court program.

(k) In any case in which a person is sentenced to probation under this Section and has performed satisfactorily during the period in which probation was granted, and any criminal charge against that person was discharged and dismissed pursuant to this Section, the court shall, upon request of the defendant, permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty, and the court shall dismiss the complaint or information against the defendant. If court records showing the case resolution are no longer available, the person's declaration, under penalty of perjury, that the charges were dismissed after he or she completed the requirements for probation, shall be presumed to be true if the person has submitted a copy of his or her summary of criminal history information maintained by the Department of Justice that either shows that the defendant successfully completed the probation or that the record is incomplete in that it does not show a final disposition. For purposes of this Section, a final disposition means that the summary of criminal history information shows either a dismissal after completion of the probation or a sentence after termination of the probation.

(Source: P.A. 98-164, eff. 1-1-14; 99-480, eff. 9-9-15.)

Section 70. The Code of Criminal Procedure of 1963 is amended by changing Sections 113-8, 122-1, and 122-2.1 and by adding Section 110-5.2 as follows:

(725 ILCS 5/110-5.2 new)

Sec. 110-5.2. No person subject to an immigration detainer or administrative warrant shall be denied bail solely on the basis of that immigration detainer or administrative warrant. Nothing in this Section may be construed to undermine the authority of a court to make a bail or bond determination under this Article.

(725 ILCS 5/113-8)

Sec. 113-8. Advisement concerning status as an alien. Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.".

Nothing in this Section shall be construed to authorize or direct any court to request that the defendant state his or her immigration or citizenship status or to require that the defendant provide that information.

(Source: P.A. 93-373, eff. 1-1-04.)

(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)

Sec. 122-1. Petition in the trial court.

(a) Any person convicted or adjudicated delinquent of an offense punishable by a sentence of imprisonment or another form of detention imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:

(1) in the proceedings which resulted in his or her conviction or delinquency adjudication there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both; or

(2) the death penalty was imposed and there is newly discovered evidence not available to the person at the time of the proceeding that resulted in his or her conviction that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence.

(a-5) A proceeding under paragraph (2) of subsection (a) may be commenced within a reasonable period of time after the person's conviction or delinquency adjudication notwithstanding any other provisions of this Article. In such a proceeding regarding actual innocence, if the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.

(b) The proceeding shall be commenced by filing with the clerk of the court in which the conviction or delinquency adjudication took place a petition (together with a copy thereof) verified by affidavit. Petitioner shall also serve another copy upon the State's Attorney by any of the methods provided in Rule 7 of the Supreme Court. The clerk shall docket the petition for consideration by the court pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same promptly to the attention of the court.

(c) (Blank). Except as otherwise provided in subsection (a-5), if the petitioner is under sentence of death and a petition for writ of certiorari is filed, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.

Except as otherwise provided in subsection (a-5) of this Section When a defendant has a sentence other than death, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3 years from the date of conviction or delinquency adjudication, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.

This limitation does not apply to a petition advancing a claim of actual innocence.

(d) A person seeking relief by filing a petition under this Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction, delinquency adjudication, or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.

(e) A proceeding under this Article may not be commenced on behalf of a defendant who has been sentenced to death without the written consent of the defendant, unless the defendant, because of a mental or physical condition, is incapable of asserting his or her own claim.

(f) Only one petition may be filed by a petitioner under this Article without leave of the court. The determination as to whether to grant leave of court shall be made prior to or contemporaneously with any order made under paragraph (2) of subsection (a) or subsection (b) of Section 122-2.1 of this Article without pleadings from the State. Leave of court may be granted only if a petitioner demonstrates:

(1) cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure; or

(2) that there has been a fundamental miscarriage of justice.

For purposes of this subsection (f):

(1) a petitioner demonstrates prisoner shows cause by adequately pleading that identifying an identified objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and

(2) a petitioner demonstrates prisoner shows prejudice by adequately pleading demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process; and

(3) a petitioner demonstrates a fundamental miscarriage of justice by adequately pleading that there is newly discovered evidence that establishes a substantial basis to believe that the petitioner is actually innocent by clear and convincing evidence.

(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; 93-972, eff. 8-20-04.)

(725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)

Sec. 122-2.1. (a) Within 90 days after the filing and docketing of each petition, the court shall examine the such petition and enter an order thereon under pursuant to this Section.

(1) If the petitioner is under sentence of death and is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.

(2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. This Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.

(b) If the petition is not dismissed under pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6. If the petitioner is under sentence of death, the court shall order the petition to be docketed for further consideration and hearing within one year of the filing of the petition. Continuances may be granted as the court deems appropriate.

(c) In considering a petition under pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in that such proceeding and any transcripts of that such proceeding.

(Source: P.A. 93-605, eff. 11-19-03.)

Section 75. The Probation and Probation Officers Act is amended by changing Section 12 as follows:

(730 ILCS 110/12) (from Ch. 38, par. 204-4)

Sec. 12. The duties of probation officers shall be:

(1) To investigate as required by Section 5-3-1 of the "Unified Code of Corrections", approved July 26, 1972, as amended, the case of any person to be placed on probation. Full opportunity shall be afforded a probation officer to confer with the person under investigation when such person is in custody.

(2) To notify the court of any previous conviction for crime or previous probation of any defendant invoking the provisions of this Act.

(3) All reports and notifications required in this Act to be made by probation officers shall be in writing and shall be filed by the clerk in the respective cases.

(4) To preserve complete and accurate records of cases investigated, including a description of the person investigated, the action of the court with respect to his case and his probation, the subsequent history of such person, if he becomes a probationer, during the continuance of his probation, which records shall be open to inspection by any judge or by any probation officer pursuant to order of court, but shall not be a public record, and its contents shall not be divulged otherwise than as above provided, except upon order of court; provided that nothing in this Section shall be construed to require or direct any probation officer to (i) inquire to the federal Department of Homeland Security regarding the citizenship or immigration status of a person or (ii) provide to the federal Department of Homeland Security any personal information regarding that person, unless otherwise required by law.

(5) To take charge of and watch over all persons placed on probation under such regulations and for such terms as may be prescribed by the court, and giving to each probationer full instructions as to the terms of his release upon probation and requiring from him such periodical reports as shall keep the officer informed as to his conduct.

(6) To develop and operate programs of reasonable public or community service for any persons ordered by the court to perform public or community service, providing, however, that no probation officer or any employee of a probation office acting in the course of his official duties shall be liable for any tortious acts of any person performing public or community service except for wilful misconduct or gross negligence on the part of the probation officer or employee.

(7) When any person on probation removes from the county where his offense was committed, it shall be the duty of the officer under whose care he was placed to report the facts to the probation officer in the county to which the probationer has removed; and it shall thereupon become the duty of such probation officer to take charge of and watch over said probationer the same as if the case originated in that county; and for that purpose he shall have the same power and authority over said probationer as if he had been originally placed in said officer's charge; and such officer shall be required to report in writing every 6 months, or more frequently upon request the results of his supervision to the probation officer in whose charge the said probationer was originally placed by the court.

(8) To authorize travel permits to individuals under their supervision unless otherwise ordered by the court.

(9) To perform such other duties as are provided for in this act or by rules of court and such incidental duties as may be implied from those expressly required.

(10) To send written notification to a public housing agency if a person on probation for a felony who is under the supervision of the probation officer informs the probation officer that he or she has resided, resides, or will reside at an address that is a housing facility owned, managed, operated, or leased by that public housing agency.

(11) If a person on probation for a felony offense who is under the supervision of the probation officer becomes a resident of a facility licensed or regulated by the Department of Public Health, the Illinois Department of Public Aid, or Illinois Department of Human Services, the probation officer shall within 3 days of the person becoming a resident, notify the licensing or regulating Department and licensed or regulated facility and shall provide the licensed or regulated facility and licensing or regulating Department with copies of the following:

(a) (blank);

(b) any applicable probation orders and corresponding compliance plans;

(c) the name and contact information for the assigned probation officer.

(Source: P.A. 94-163, eff. 7-11-05; 94-752, eff. 5-10-06.)

Section 80. The Probate Act of 1975 is amended by changing Section 11-3 as follows:

(755 ILCS 5/11-3) (from Ch. 110 1/2, par. 11-3)

Sec. 11-3. Who may act as guardian.

(a) A person is qualified to act as guardian of the person and as guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the proposed guardian:

(1) has attained the age of 18 years;

(2) lives in is a resident of the United States;

(3) is not of unsound mind;

(4) is not an adjudged person with a disability as defined in this Act; and

(5) has not been convicted of a felony, unless the court finds appointment of the person convicted of a felony to be in the minor's best interests, and as part of the best interest determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian's rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to a child, including a felony sexual offense. One person may be appointed guardian of the person and another person appointed guardian of the estate.

(b) The Department of Human Services or the Department of Children and Family Services may with the approval of the court designate one of its employees to serve without fees as guardian of the estate of a minor patient in a State mental hospital or a resident in a State institution when the value of the personal estate does not exceed $1,000.

(Source: P.A. 99-143, eff. 7-27-15.)

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect upon becoming law.