This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/HB 1355 Immigration Enforcement
SPONSOR(S): Judiciary Committee, Snyder and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1808
FINAL HOUSE FLOOR ACTION: 77 Y’s
42 N’s GOVERNOR’S ACTION: Pending
SUMMARY ANALYSIS
CS/HB 1355 passed the House on March 9, 2022, as CS/SB 1808.
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.
The bill provides for enhanced cooperation between law enforcement agencies and United States Immigration
and Customs Enforcement (ICE), adds data collection requirements in criminal cases relating to immigration
status, and creates 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, including a grant agreement or economic incentive program payment agreement, with a common
carrier or contracted carrier if the carrier is willfully providing any service in furtherance of transporting a
person into Florida knowing that the person is an unauthorized alien, except to facilitate the detention of
the person, or the removal or departure of the person from Florida or the United States.
Requires any contract between a state, regional, or local governmental entity and a common carrier or
contracted carrier which is executed, amended, or renewed on or after October 1, 2022, to require the
carrier to attest, under penalty of perjury, that it will not willfully provide any service in furtherance of
transporting a person into Florida during the contract term knowing that the person is an unauthorized
alien, except to facilitate the detention of the person, or the removal or departure of the person from
Florida or the United States, and a provision allowing for termination of the contract for cause if the carrier
is found to be knowingly transporting an unauthorized alien into Florida.
Expands criminal justice data collection and reporting requirements by requiring clerks of the court, county
detention facilities, and the Department of Corrections (DOC) to record the immigration status of a
defendant, inmate, or person under supervision on probation or community control.
Under the bill, an “unauthorized alien” is a person who is unlawfully present in the United States according to
the terms of the Immigration and Nationality Act, 8 U.S.C. ss. 1101 et seq. The bill requires the term
“unauthorized alien” to be interpreted consistently with any applicable federal statutes, rules, or regulations.
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 may have an indeterminate
negative fiscal impact on state government by requiring DOC to report the immigration status of each inmate in
DOC custody or supervision and on a local government that operates a detention facility by requiring such a
facility to report the immigration status of each inmate to FDLE.
Subject to the Governor’s veto powers, the effective date of this bill is upon becoming a law.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF 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.
8
In contrast, immigration-related crimes include unlawful entry,
9
unlawful reentry,
10
failure to depart after
removal,
11
human smuggling,
12
and document fraud.
13
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.
14
287(g) Agreements
In 1996, the United States Congress added s. 287(g) to the federal Immigration and Nationality Act,
15
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 and to allow a state or
local officer to perform immigration functions, such as investigating, apprehending, detaining, or
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 Mar. 18, 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 U.S.C. § 1229.
8
8 U.S.C. § 1229a.
9
8 U.S.C. § 1325.
10
8 U.S.C. § 1326.
11
8 U.S.C. § 1253.
12
8 U.S.C. § 1324.
13
8 U.S.C. § 1546.
14
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 Mar. 18, 2022).
15
Pub. L. 104–208
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transporting aliens.
16
Such a state or local officer acts at the direction and under the supervision of the
AG.
17
The state or local officer must:
Be qualified to perform immigration officer functions, as determined by the AG;
18
Have knowledge of and adhere to federal law;
19
and
Have received adequate training on the enforcement of federal immigration laws, as indicated
in a written certification.
20
The expenses of participating in a 287(g) agreement are divided between Immigration and Customs
Enforcement (ICE) and a participating law enforcement agency. Generally, a participating law
enforcement agency is responsible for personnel costs, administrative expenses, and security
equipment.
21
ICE is responsible for providing training and information technology equipment to access
the ICE computer network.
22
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.
23
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.
24
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 take and consider evidence to complete alien removal;
Prepare charging documents;
Detain and transport arrested aliens subject to removal; and
Issue immigration detainers.
25
Five Florida counties and the Florida Department of Corrections (DOC) have 287(g) agreements under
the JEM.
26
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.
27
Forty-two Florida counties have 287(g) agreements under the WSO Model.
28
16
8 U.S.C. § 1357(g)(1).
17
8 U.S.C. § 1357(g)(3).
18
8 U.S.C. § 1357(g)(1).
19
8 U.S.C. § 1357(g)(2).
20
Id.
21
U.S. Immigration and Customs Enforcement, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act:
Participating Entities, https://www.ice.gov/identify-and-arrest/287g (last visited Mar. 18, 2022).
22
Id.
23
8 U.S.C. § 1357(g)(8).
24
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 Mar. 18, 2022).
25
American Immigration Council, Fact Sheet: The 287(g) Program: An Overview (July 8, 2021),
https://www.americanimmigrationcouncil.org/research/287g-program-immigration#:~:text=Under%20the%20jail%20enforcement%
20model,to%20be%20subject%20to%20removal. (last visited Mar. 18, 2022) and Delegation of Immigration Authority Section 287(g)
Immigration and Nationality Act, supra, at FN 21.
26
Id. Counties with a JEM include: Clay, Collier, Duval, Hernando, and Pasco.
27
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 Mar. 18, 2022).
28
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.
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Prohibition of Sanctuary Policies
Section 908.103, F.S., prohibits a state entity,
29
law enforcement agency,
30
or local governmental
entity
31
from adopting or having in effect a sanctuary policy, defined as a law, policy, practice,
procedure, or custom adopted or allowed by a state entity or local governmental entity that prohibits or
impedes a law enforcement agency from complying with 8 U.S.C. s. 1373(a) or (b),
32
or that 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
33
(FIA) to notify the agency prior to
the release of an inmate or detainee 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.
34
In addition, the Florida Attorney General
may file suit against a local governmental entity or local law enforcement agency for declaratory or
injunctive relief.
35
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.
36
Criminal Justice Data Collection
In 2018, the Legislature enacted s. 900.05, F.S., to standardize and consolidate the collection and
reporting of criminal justice data and promote transparency. This statute requires the clerks of court,
state attorneys, public defenders, county jail operators, DOC, the Justice Administrative Commission,
and regional counsels to collect certain data elements.
37
Clerks of the court are currently required to
collect data on the immigration status of a defendant in a criminal case “if applicable.”
38
The entities
required to collect criminal justice data must transmit such data to the Department of Law Enforcement
(FDLE) each month.
39
FDLE is required to publish the data on its department website and make the
data searchable by specified categories.
40
Contracts with Common Carriers or Contracted Carriers
29
“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.
30
“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.
31
“Local government entity” means any county, municipality, or other political subdivision of this state. S. 908.102(5), F.S.
32
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.
33
“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.
34
S. 908.107(1), F.S.
35
S. 908.107(2), F.S.
36
Ss. 908.107(3) and (4), F.S.
37
S. 900.05, F.S.
38
S. 900.05(3)(a)12.e., F.S.
39
S. 900.05(4), F.S.
40
Id. and s. 943.6871, F.S.
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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.
41
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.
42
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 States available to provide care and physical custody.
43
Once a child is in the custody of HHS, HHS attempts to reunite the child with a parent, relative, or
guardian.
44
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.
45
As of October 31, 2021, there were approximately 10,680 unaccompanied children in HHS custody.
46
In November 2021, multiple news agencies reported that charter flights carrying unaccompanied
children were landing at Jacksonville International Airport (JIA).
47
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.
48
The specifics of where the unaccompanied children on these charter
flights are sent once they leave the airport is unknown.
49
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.
50
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.
51
Effect of the Bill
287(g) Agreements
The bill creates s. 908.11, F.S., which requires each law enforcement agency operating a county
41
6 U.S.C. s. 279(g)(2). U.S. Department of Health and Human Services, Unaccompanied Children (UC) Program (Nov. 1, 2021),
https://www.hhs.gov/sites/default/files/uac-program-fact-sheet.pdf (last visited Mar. 18, 2022).
42
Id.
43
Id.
44
Id.
45
Id.
46
Id.
47
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 Mar. 18, 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 Mar. 18, 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 Mar. 18, 2022).
48
Id.
49
Id.
50
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.
51
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).
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detention facility to enter into a written agreement with ICE, by January 1, 2023, 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. Each law enforcement agency that
operates a county detention facility must notify FDLE, by October 1, 2022, 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.
52
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.
Criminal Justice Data Collection
The bill amends criminal justice data collection and reporting requirements in s. 900.05, F.S., by
requiring:
Clerks of the court to record and report the immigration status of a defendant in all criminal
cases.
County detention facilities to record and report the immigration status of each inmate.
DOC to record and report the immigration status of each inmate in custody or supervised by
DOC on probation or community control.
Contracts with Common Carriers or Contracted Carriers
The bill prohibits a governmental entity from executing, amending, or renewing a contract, including a
grant agreement or economic incentive program payment agreement, with a common carrier or
contracted carrier if the carrier is willfully providing any service in furtherance of transporting a person
into Florida knowing that the person is an unauthorized alien, except to facilitate the detention of the
person, or the removal or departure of the person from Florida or the United States. The bill requires
that any contract between a governmental entity and a common carrier or contracted carrier that is
executed, amended, or renewed on or after October 1, 2022, including a grant agreement or economic
incentive payment program, include:
An attestation by the common carrier or contracted carrier, made under penalty of perjury, that
the carrier is not willfully providing and will not willfully provide any service during the contract
term in furtherance of transporting a person into Florida knowing that the person is an
unauthorized alien, except to facilitate the detention of the person, or the removal or departure
of the person from Florida or the United States; and
A provision for termination of a contract for cause if the common carrier or contracted carrier is
found in violation of the required attestation.
A governmental entity is deemed to be compliant once it receives the attestation from the common
carrier or contracted carrier affirming the carrier is not, and will not, provide any service in furtherance
of transporting a person into Florida knowing that the person is an unauthorized alien, except to
facilitate the detention of the person, or the removal or departure of the person from Florida or the
United States.
The bill provides definitions for the following terms:
52
Forty-seven 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.
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“Common carrier” means 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.
“Contract” means a contract that is subject to the competitive procurement requirements of the
contracting governmental entity or a contract for an amount or duration requiring it to include
written provisions under the procurement requirements of the governmental entity.
“Governmental entity” means 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.
“Unauthorized alien” means a person who is unlawfully present in the United States according
to the terms of the Immigration and Nationality Act, 8 U.S.C. ss. 1101 et seq. The term must be
interpreted consistently with any applicable federal statutes, rules, or regulations.
Subject to the Governor’s veto powers, the effective date of this bill is upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may have an indeterminate negative fiscal impact on state government expenditures by
requiring DOC to report the immigration status of each inmate in DOC custody or supervision.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
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 may also have an indeterminate negative fiscal impact on a local government that operates
a detention facility by requiring such a facility to report the immigration status of each inmate to
FDLE.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill prohibits a governmental entity in Florida from entering into a contract with a common carrier or
contracted carrier if such carrier willfully provides any service in furtherance of transporting an
unauthorized alien into Florida. The fiscal impact of the bill to common carriers and contracted carriers
is indeterminate since it is unknown how many governmental entities in Florida have existing contracts
with common carriers or contracted carriers and will choose to contract for such services in the future.
D. FISCAL COMMENTS:
None.
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