This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1355a.CRM
DATE: 2/3/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1355 Immigration Enforcement
SPONSOR(S): Snyder
TIED BILLS: IDEN./SIM. BILLS: SB 1808
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 13 Y, 5 N Padgett Hall
2) State Affairs Committee
3) Judiciary Committee
SUMMARY ANALYSIS
In 2019, in response to a number of cities in the United States adopting policies to prevent local law enforcement
agencies from cooperating with Federal immigration authorities, commonly known as “sanctuary policies,” the
Florida Legislature enacted s. 908.103, F.S., which prohibits sanctuary policies in Florida. In conjunction with
prohibiting sanctuary policies, the Legislature also declared that it is an important state interest to cooperate with
and assist the Federal government in the enforcement of federal immigration laws within Florida.
HB 1355 provides for enhanced cooperation between law enforcement agencies and U.S. Immigration and
Customs Enforcement (ICE), and creates additional contracting requirements for governmental entities.
Specifically, the bill:
Amends the definition of “sanctuary policy” to prohibit any policy adopted or allowed by a state or local
government that impedes or prohibits a law enforcement agency from providing information to a state
entity on the immigration status of an inmate or detainee in the custody of the law enforcement agency.
Requires each law enforcement agency that operates a county detention facility to enter into a written
agreement with ICE by January 1, 2023 to participate in the 287(g) program, in which ICE trains local law
enforcement officers to perform specified immigration enforcement functions.
Prohibits a state, regional, or local governmental entity from entering into, amending, or renewing a
contract with a common carrier if the carrier is willfully providing any service in furtherance of transporting
an unauthorized alien into Florida knowing that the unauthorized alien entered into or remains in the
United States in violation of law.
Requires any contract between a state, regional, or local governmental entity and a common carrier which
is executed, amended, or renewed on or after October 1, 2022 to require the common carrier to attest,
under penalty of perjury, that it will not willfully provide any service in furtherance of transporting an
unauthorized alien into Florida during the contract term knowing that the unauthorized alien entered into or
remains in the United States in violation of law, and a provision allowing for termination of the contract for
cause if the common carrier is found to be knowingly transporting an unauthorized alien into Florida.
The bill defines a “common carrier” as a person, firm, or corporation that undertakes for hire, as a regular
business, to transport persons or commodities from place to place offering his or her services to all such as may
choose to employ the common carrier and pay his or her charges.
The bill may have an indeterminate negative fiscal impact on a local government that provides funding to a law
enforcement agency that is not currently participating in a 287(g) agreement by requiring the local government
to expend funds enforcing immigration laws in partnership with ICE. The bill does not appear to have a fiscal
impact on state government.
The bill is effective upon becoming a law. STORAGE NAME: h1355a.CRM PAGE: 2
DATE: 2/3/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
The federal government has broad power over immigration and alien status, and has implemented an
extensive set of rules governing alien admission, removal, and conditions for continued presence within
the United States.
1
While the federal government’s authority over immigration is well established, the
United States Supreme Court has recognized that not “every state enactment which in any way deals
with aliens is a regulation of immigration and thus per se preempted” by the federal government.
2
The Tenth Amendment’s reservation of powers to the states includes traditional “police powers”
concerning the promotion and regulation of safety, health, and welfare within the state.
3
Moreover, the
federal government’s power to preempt activity in the area of immigration is further limited by the
constitutional bar against directly “commandeering” state or local governments into the service of
federal immigration agencies.
4
States and municipalities have frequently enacted measures, as an
exercise of police powers, addressing unauthorized aliens residing in their communities.
5
Federal Immigration Enforcement
Immigration enforcement may be criminal or civil in nature. Removal, commonly referred to as
deportation, is a civil process to formally expel an unauthorized alien from the United States. Federal
law specifies the classes of people subject to removal, including an unauthorized alien who was
inadmissible at the time of entry into the United States and unauthorized aliens convicted of certain
crimes.
6
A federal immigration officer initiates removal proceedings by arresting a person, receiving
custody of a person detained by state or local law enforcement, or issuing a notice to appear.
7
An
immigration judge may order the removal of an unauthorized alien following a merits hearing.
In contrast, immigration-related crimes include unlawful entry,
8
unlawful reentry,
9
failure to depart after
removal,
10
human smuggling,
11
and document fraud.
12
A person convicted of unlawful reentry for
entering or attempting to illegally enter the United States more than once serves an average of two
years in federal prison.
13
287(g) Agreements
The United States Congress added s. 287(g) to the federal Immigration and Nationality Act in 1996,
14
codified as 8 U.S.C. § 1357(g). This section authorizes the United States Attorney General (AG) to
enter into a written agreement with a state or any political subdivision of a state, to allow a state or local
officer to perform immigration functions, such as investigating, apprehending, detaining, or transporting
1
Arizona v. United States, 567 U.S. 387 (2012).
2
De Canas v. Bica, 424 U.S. 351, 355 (1976); see Arizona, 567 U.S. 387.
3
Western Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907).
4
See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).
5
Congressional Research Service, R43457, State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement, at
3 (July 20, 2015), https://fas.org/sgp/crs/homesec/R43457.pdf (last visited Feb. 3, 2022).
6
8 U.S.C. § 1227.
7
A notice to appear is a document instructing an individual to appear before an immigration judge.
8
8 U.S.C. § 1325.
9
8 U.S.C. § 1326.
10
8 U.S.C. § 1253.
11
8 U.S.C. § 1324.
12
8 U.S.C. § 1546.
13
United States Border Patrol, Nationwide Illegal Alien Apprehensions Fiscal Years 1925 – 2018,
https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-apps-fy1925-fy2018.pdf (last visited Feb. 3, 2022); Michael
Light, Mark Hugo Lopez, and Ana Gonzalez-Barrera, The Rise of Federal Immigration Crimes: Unlawful Reentry Drives Growth (Mar.
18, 2014), http://www.pewresearch.org/wp-content/uploads/sites/5/2014/03/2014-03-18_federal-courts-immigration-final.pdf (last visited
Feb. 3, 2022).
14
Pub.L. 104–208 STORAGE NAME: h1355a.CRM PAGE: 3
DATE: 2/3/2022
aliens.
15
Such a state or local officer acts at the direction and under the supervision of the AG.
16
The
state or local officer must:
Be qualified to perform immigration officer functions, as determined by the AG;
17
Have knowledge of and adhere to Federal law;
18
and
Have received adequate training on the enforcement of Federal immigration laws, as indicated
in a written certification.
19
The expenses of participating in a 287(g) agreement are divided between ICE and a participating law
enforcement agency. Generally, a participating law enforcement agency is responsible for personnel
costs, administrative expenses, and security equipment.
20
ICE is responsible for providing training and
information technology equipment to access the ICE computer network.
21
For purposes of determining
liability and immunity from suit in civil actions, a state or local officer performing immigration functions
pursuant to a written 287(g) agreement is considered to be acting under color of Federal authority.
22
There are two enforcement models for 287(g) agreements, the Jail Enforcement Model (JEM) and the
Warrant Service Officer Model (WSO). Under the JEM, a state or local officer receives specialized
training from ICE and performs immigration enforcement functions as provided in the memorandum of
agreement between the AG and the state or local jurisdiction.
23
Such immigration enforcement
functions under the JEM may include the power and authority to:
Interrogate a person detained in a detention facility about his or her immigration status;
Serve and execute warrants of arrest or removal for immigration violations;
Administer oaths and to take and consider evidence to complete alien removal;
Prepare charging documents;
Detain and transport arrested aliens subject to removal; and
Issue immigration detainers.
24
Five Florida counties and the Florida Department of Corrections have 287(g) agreements under the
JEM.
25
Alternatively, a state or local jurisdiction may have a 287(g) agreement under the WSO Model. The
WSO Model is a narrower cooperative agreement between the AG and the local jurisdiction in which a
state or local officer receives specified training from ICE, but only receives limited authority to serve and
execute administrative warrants on behalf of ICE to aliens incarcerated in a county detention facility.
26
Forty-two Florida counties have 287(g) agreements under the WSO Model.
27
Prohibition of Sanctuary Policies
Section 908.103, F.S., prohibits a state entity,
28
law enforcement agency,
29
or local governmental
entity
30
from adopting or having in effect a sanctuary policy, defined as a law, policy, practice,
15
8 U.S.C. § 1357(g)(1).
16
8 U.S.C. § 1357(g)(3).
17
8 U.S.C. § 1357(g)(1).
18
8 U.S.C. § 1357(g)(2).
19
Id.
20
U.S. Immigration and Customs Enforcement, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,
https://www.ice.gov/identify-and-arrest/287g (last visited Feb. 3, 2022).
21
Id.
22
8 U.S.C. § 1357(g)(8).
23
U.S. Immigration and Customs Enforcement, 287(g) Jail Enforcement Model (JEM),
https://www.ice.gov/doclib/about/offices/ero/pdf/jemInfographic.pdf (last visited Feb. 3, 2022).
24
U.S. Immigration and Customs Enforcement, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,
https://www.ice.gov/identify-and-arrest/287g (last visited Feb. 3, 2022).
25
Id. Counties with a JEM include: Clay, Collier, Duval, Hernando, and Pasco.
26
U.S. Immigration and Customs Enforcement, 287(g) Warrant Service Officer (WSO) Model,
https://www.ice.gov/doclib/about/offices/ero/pdf/WSOPromo.pdf (last visited Feb. 3, 2022).
27
Id. Counties with a WSO Model include: Baker, Bay, Bradford, Brevard, Broward, Calhoun, Charlotte, Columbia, DeSoto, Flagler,
Franklin, Hamilton, Hendry, Highlands, Holmes, Indian River, Jefferson, Lafayette, Lake, Leon, Levy, Liberty, Madison, Manatee,
Marion, Martin, Monroe, Nassau, Okeechobee, Osceola, Pinellas, Polk, Putnam, Santa Rosa, Sarasota, Seminole, St. Johns, Sumter,
Suwannee, Taylor, Wakulla, and Walton. STORAGE NAME: h1355a.CRM PAGE: 4
DATE: 2/3/2022
procedure, or custom adopted or allowed by a state entity or local governmental entity which prohibits
or impedes a law enforcement agency from complying with 8 U.S.C. s. 1373(a) or (b),
31
or which
prohibits or impedes a law enforcement agency from communicating or cooperating with a federal
immigration agency so as to limit such law enforcement in, or prohibit the agency from:
Complying with an immigration detainer;
Complying with a request from a federal immigration agency
32
(FIA) to notify the agency prior to
the release of an inmate in the custody of the law enforcement agency;
Providing a FIA access to an inmate or detainee to interview;
Participating in a 287(g) program or agreement; or
Providing a FIA with an inmate’s incarceration status or release date.
If any executive or administrative state, county, or municipal officer adopts a sanctuary policy, the
Governor may initiate judicial proceedings in the name of the state against such officer to enforce
compliance with any duty or restrain any unauthorized act.
33
In addition, the Florida Attorney General
may file suit against a local governmental entity or local law enforcement agency for declaratory or
injunctive relief.
34
If a court finds that a local governmental entity or local law enforcement agency has
adopted a sanctuary policy, it is required to enjoin the unlawful sanctuary policy and include written
findings of fact that describe with specificity the existence and nature of such policy.
35
Contracts with Common Carriers
Federal Law
Under Federal law, the United States Department of Health and Human Services (HHS) is granted
legal custody and must provide care for each unaccompanied child in the United States who is a
noncitizen.
36
Many of these unaccompanied children are taken into custody by immigration authorities
while attempting to cross a national border, particularly the border between the United States and
Mexico.
37
An unaccompanied child is a child that:
Has no lawful immigration status in the United States;
Has not attained 18 years of age; and
Has no parent or legal guardian in the United States, or no parent or legal guardian in the
United State available to provide care and physical custody.
38
Once a child is in the custody of HHS, HHS attempts to reunite the child with a parent, relative, or
guardian.
39
While waiting for a relative or guardian to be located, an unaccompanied child is transferred
to one of approximately 200 temporary care facilities funded by HHS which are located in 22 states.
40
As of October 31, 2021, there were approximately 10,680 unaccompanied children in HHS custody.
41
28
“State entity” means the state or any office, board, bureau, commission, department, branch, division, or institution thereof, including
institutions within the State University System and the Florida College System. S. 908.102(7), F.S.
29
“Law enforcement agency” means an agency in this state charged with enforcement of state, county, municipal, or federal laws or
with managing custody of detained persons in this state and includes municipal police departments, sheriffs' offices, state police
departments, state university and college police departments, county correctional agencies, and the Department of Corrections. S.
908.102(4), F.S.
30
“Local government entity” means any county, municipality, or other political subdivision of this state. S. 908.102(5), F.S.
31
8 U.S.C. § 1373(a) and (b) bar any restrictions that prevent state or local government entities or officials from voluntarily
communicating with federal immigration agencies regarding a person’s immigration status.
32
“Federal immigration agency” means the United States Department of Justice and the United States Department of Homeland
Security, a division within such an agency, including United States Immigration and Customs Enforcement and United States Customs
and Border Protection, any successor agency, and any other federal agency charged with the enforcement of immigration law. S.
908.102(1), F.S.
33
S. 908.107(1), F.S.
34
S. 908.107(2), F.S.
35
Ss. 908.107(3) and (4), F.S.
36
6 U.S.C. s. 279(g)(2). U.S. Department of Health and Human Services, Unaccompanied Children (UC) Program,
https://www.hhs.gov/sites/default/files/uac-program-fact-sheet.pdf (last visited Feb. 3, 2022).
37
Id.
38
Id.
39
Id.
40
Id.
41
Id. STORAGE NAME: h1355a.CRM PAGE: 5
DATE: 2/3/2022
In November 2021, multiple news agencies reported that charter flights carrying unaccompanied
children were landing at Jacksonville International Airport (JIA).
42
According to one report, 78 such
charter flights landed at JIA from April 22, 2021 to October 6, 2021, with most flights arriving from
Texas, Arizona, and California.
43
The specifics of where the unaccompanied children on these charter
flights are sent once they leave the airport is unknown.
44
The absence of specific information highlights
the lack of transparency in current federal programs that are transporting unauthorized aliens into
Florida.
State Law
A person who transports an individual into Florida that he or she knows, or should know, is illegally
entering the United States from another country commits the crime of human smuggling, punishable as
a third degree felony.
45
Although the Florida statute has not been challenged, courts have struck down
similar laws in other states after determining that such state laws criminalizing transportation of aliens
were preempted by federal immigration laws and regulations.
46
Effect of Proposed Changes
287(g) Agreements
HB 1355 creates s. 908.11, F.S., which requires each law enforcement agency operating a county
detention facility to enter into a written agreement, by January 1, 2023, with ICE to participate in an
immigration program established under s. 287(g). Under the bill, a law enforcement agency may satisfy
this requirement by participating in either the JEM or WSO Model. Each law enforcement agency that
operates a county detention facility must notify, by October 1, 2022, the Florida Department of Law
Enforcement (FDLE) of the status of a 287(g) agreement including, if no such agreement is in place,
the reasons a 287(g) agreement has not been entered into. The bill requires a law enforcement agency
that does not have a 287(g) agreement in place to notify FDLE of such noncompliance on a quarterly
basis until such time the agency enters into a 287(g) agreement.
47
Prohibition of Sanctuary Policies
The bill amends the definition of “sanctuary policy” in s. 908.102, F.S., to prohibit a state or local
government entity from adopting any law, policy, practice, procedure, or custom that prohibits or
impedes a law enforcement agency from providing information to a state entity on the immigration
status of an inmate or detainee in the custody of the law enforcement agency.
Contracts with Common Carriers
The bill prohibits a governmental entity from executing, amending, or renewing a contract with a
common carrier if the carrier is willfully providing any service in furtherance of transporting an
unauthorized alien into Florida knowing that the unauthorized alien entered into or remains in the
United States in violation of law. The bill requires that any contract between a governmental entity and
42
Vic Micolucci, I-TEAM: Documents show 78 flights carrying migrants landed in Jacksonville over last 6 months, News4Jax (Nov. 17,
2021), https://www.news4jax.com/i-team/2021/11/16/i-team-documents-show-78-flights-carrying-migrants-landed-in-jacksonville-over-
last-6-months/ (last visited Feb. 3, 2022); David Bauerlein, Gov. Ron DeSantis ties ‘illegal immigration’ crackdown to stabbing death in
Jacksonville, Florida Times-Union (Dec. 10, 2021), https://www.jacksonville.com/story/news/state/2021/12/10/gov-desantis-says-biden-
border-crisis-requires-new-florida-laws/6459892001/ (last visited Feb. 3, 2022); Adam Shaw, Florida gov says Biden admin has landed
dozens of secret flights carrying illegal migrants into the state, Fox News (Nov. 6, 2021), https://www.foxnews.com/politics/florida-
desantis-office-claims-more-night-time-migrant-flights (last visited Feb. 3, 2022).
43
Id.
44
Id.
45
S. 787.07, F.S. A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. Ss. 775.082 and 775.083,
F.S.
46
United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013), Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir 2013).
47
Forty-eight counties appear to have executed 287(g) agreements with ICE. The counties which do not have such agreements
include: Alachua, Citrus, Dixie, Escambia, Gadsden, Gilchrist, Glades, Gulf, Hardee, Hillsborough, Jackson, Lee, Miami-Dade,
Okaloosa, Orange, Palm Beach, St. Lucie, Union, Volusia, and Washington. STORAGE NAME: h1355a.CRM PAGE: 6
DATE: 2/3/2022
a common carrier which is executed, amended, or renewed on or after October 1, 2022, including a
grant agreement or economic incentive program, include:
An attestation by the common carrier, made under penalty of perjury, that the common carrier is
not willfully providing and will not willfully provide any service during the contract term in
furtherance of transporting an unauthorized alien into Florida knowing that the unauthorized
alien entered into or remains in the United States in violation of law; and
A provision for termination of a contract for cause if the common carrier is found to be willfully
providing any service in furtherance of transporting an unauthorized alien into Florida knowing
the unauthorized alien entered into or remains in the United States in violation of law.
A government entity is deemed to be compliant once it receives the attestation from the common carrier
affirming the carrier is not, and will not, provide any service in furtherance of transporting an
unauthorized alien into Florida knowing the unauthorized alien remains in the United States in violation
of law.
The bill defines a “common carrier” as a person, firm, or corporation that undertakes for hire, as a
regular business, to transport persons or commodities from place to place offering his or her services to
all such as may choose to employ the common carrier and pay his or her charges.
The bill defines “governmental entity” as an agency of the state, a regional or a local government
created by the State Constitution or by a general or special act, a county or municipality, or any other
entity that independently exercises governmental authority.
The bill defines “unauthorized alien” as a person who is not authorized under federal law to be
employed in the United States, as described in 8 U.S.C. s. 1324(h)(3).
The bill is effective upon becoming a law.
B. SECTION DIRECTORY:
Section 1: Amends s. 908.102, F.S., relating to definitions.
Section 2: Creates s. 908.11, F.S., relating to immigration enforcement assistance agreements.
Section 3: Creates s. 908.111, F.S., relating to prohibition against governmental entity contracts with
common carriers; required termination provisions.
Section 4: Provides an effective date of upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures: STORAGE NAME: h1355a.CRM PAGE: 7
DATE: 2/3/2022
The bill may have an indeterminate negative fiscal impact on a local government that provides
funding to a law enforcement agency that is not currently participating in a 287(g) agreement by
requiring the local government to expend funds enforcing immigration laws in partnership with ICE.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill prohibits a governmental entity in Florida from entering into a contract with a common carrier if
such common carrier willfully provides any service in furtherance of transporting an unauthorized alien
into Florida. The fiscal impact of the bill to common carriers is indeterminate since it is unknown how
many governmental entities in Florida have existing contracts with common carriers and will choose to
contract for such services in the future.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
The county/municipality mandates provision of Art. VII, s. 18 of the State Constitution may apply
because this bill requires each law enforcement agency operating a county detention facility to enter
into a 287(g) agreement with ICE, which could require the expenditure of funds. However, an
exemption may apply if the bill has an insignificant fiscal impact on counties.
2. Other:
Several provisions in ch. 908, F.S., relating to immigration were challenged in federal court, including
s. 908.103, F.S., which prohibits a state entity, law enforcement agency, or local government from
adopting a sanctuary policy. City of South Miami v. DeSantis, ---F.Supp.3d----, 2021 WL 4272017
(S.D. Fla. Sept. 21, 2021). The Court found the sanctuary policy prohibition was unconstitutional and
entered a permanent injunction preventing the state from enforcing such a prohibition. The case was
appealed to the Eleventh Circuit Court of Appeals on October 20, 2021, and remains pending.
B. RULE-MAKING AUTHORITY:
The bill grants sufficient rulemaking authority to the Department of Management Services for
implementation.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES