| News | Market | Editorials | Ideas | Links | Research | Archives | Contact |
Text
of Arizona Immigration Law enacted in April 2010
Return
To: Ideas
For
the convenience of visitors to FIRSTTHINGS.COM, the following text was
copied down from http://www.keytlaw.com/blog/2010/04/anti-illegal-immigration-law-part-1/
on 04/30/2010. You are encouraged to visit their site
directly for updates as may be considered necessary. What
follows here is exactly as coped on this date, and any issues of
accuracy should be referred back to www.keylaw.com.
The Mountain Observer.
State
of Arizona Senate
Forty-ninth
Legislature Second Regular Session 2010
AN
ACT
Amending
title 11, chapter 7, Arizona Revised Statutes, by adding article 8;
amending title 13, chapter 15, Arizona Revised Statutes, by adding
section 13‑1509; amending section 13-2319, Arizona Revised Statutes;
amending Title 13, chapter 29, Arizona Revised Statutes, by adding
sections 13-2928 and 13‑2929; amending sections 13-3883, 23-212,
23-212.01, 23-214 and 28-3511, Arizona revised statutes; amending title
41, chapter 12, article 2, Arizona Revised Statutes, by adding section
41-1724; relating to unlawfully present aliens.
Be
it enacted by the Legislature of the State of Arizona:
“Text of
Arizona’s Anti-Illegal Immigration Law – Part 1”
which contains the text of new ARS Section 11-1051
Section 1. Intent
The
legislature finds that there is a compelling interest in the
cooperative enforcement of federal immigration laws throughout all of
Arizona. The legislature declares that the intent of this act is
to make attrition through enforcement the public policy of all state
and local government agencies in Arizona. The provisions of this
act are intended to work together to discourage and deter the unlawful
entry and presence of aliens and economic activity by persons
unlawfully present in the United States.
Sec. 2. Title
11, chapter 7, Arizona Revised Statutes, is amended by adding article
8, to read:
ARTICLE
8. ENFORCEMENT OF IMMIGRATION LAWS
11-1051. Cooperation
and assistance in enforcement of immigration laws; indemnification
A. No
official or agency of this state or a county, city, town or other
political subdivision of this state may limit or restrict the
enforcement of federal immigration laws to less than the full extent
permitted by federal law.
B. For
any lawful contact made by a law enforcement official or a law
enforcement agency of this state or a law enforcement official or a law
enforcement agency of a county, city, town or other political
subdivision of this state where reasonable suspicion exists that the
person is an alien who is unlawfully present in the United States, a
reasonable attempt shall be made, when practicable, to determine the
immigration status of the person, except if the determination may
hinder or obstruct an investigation. Any person who is arrested
shall have the person's immigration status determined before the person
is released. The person's immigration status shall be verified
with the federal government pursuant to 8 United States code section
1373(c). A law enforcement official or agency of this state or a
county, city, town or other political subdivision of this state may not
solely consider race, color or national origin in implementing the
requirements of this subsection except to the extent permitted by the
United States or Arizona Constitution. A person is presumed to
not be an alien who is unlawfully present in the United States if the
person provides to the law enforcement officer or agency any of the
following:
1. A
valid Arizona driver license.
2. A
valid Arizona nonoperating identification license.
3. A
valid tribal enrollment card or other form of tribal identification.
4. If
the entity requires proof of legal presence in the United States before
issuance, any valid United States federal, state or local government
issued identification.
C. If
an alien who is unlawfully present in the United States is convicted of
a violation of state or local law, on discharge from imprisonment or on
the assessment of any monetary obligation that is imposed, the United
States immigration and customs enforcement or the United States customs
and border protection shall be immediately notified.
D. Notwithstanding
any other law, a law enforcement agency may securely transport an alien
who the agency has received verification is unlawfully present in the
united states and who is in the agency's custody to a federal facility
in this state or to any other point of transfer into federal custody
that is outside the jurisdiction of the law enforcement agency. a
law enforcement agency shall obtain judicial authorization before
securely transporting an alien who is unlawfully present in the United
States to a point of transfer that is outside of this state.
E. Except
as provided in federal law, officials or agencies of this state and
counties, cities, towns and other political subdivisions of this state
may not be prohibited or in any way be restricted from sending,
receiving or maintaining information relating to the immigration
status, lawful or unlawful, of any individual or exchanging that
information with any other federal, state or local governmental entity
for the following official purposes:
1. Determining
eligibility for any public benefit, service or license provided by any
federal, state, local or other political subdivision of this state.
2. Verifying
any claim of residence or domicile if determination of residence or
domicile is required under the laws of this state or a judicial order
issued pursuant to a civil or criminal proceeding in this state.
3. If
the person is an alien, determining whether the person is in compliance
with the federal registration laws prescribed by title II, chapter 7 of
the federal immigration and Nationality act.
4. Pursuant
to 8 United States Code section 1373 and 8 United States Code section
1644.
F. This
section does not implement, authorize or establish and shall not be
construed to implement, authorize or establish the REAL ID act of 2005
(P.L. 109-13, division B; 119 Stat. 302), including the use
of a radio frequency identification chip.
G. A
person who is a legal resident of this state may bring an action in
superior court to challenge any official or agency of this state or a
county, city, town or other political subdivision of this state that
adopts or implements a policy or practice that limits or restricts the
enforcement of federal immigration laws to less than the full extent
permitted by federal law. If there is a judicial finding that an
entity has violated this section, the court shall order that the entity
pay a civil penalty of not less than one thousand dollars and not more
than five thousand dollars for each day that the policy has remained in
effect after the filing of an action pursuant to this subsection.
H. A
court shall collect the civil penalty prescribed in subsection G of
this section and remit the civil penalty to the state treasurer for
deposit in the gang and immigration intelligence team enforcement
mission fund established by section 41‑1724.
I. The
court may award court costs and reasonable attorney fees to any person
or any official or agency of this state or a county, city, town or
other political subdivision of this state that prevails by an
adjudication on the merits in a proceeding brought pursuant to this
section.
J. Except
in relation to matters in which the officer is adjudged to have acted
in bad faith, a law enforcement officer is indemnified by the law
enforcement officer's agency against reasonable costs and expenses,
including attorney fees, incurred by the officer in connection with any
action, suit or proceeding brought pursuant to 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.
K. This
section shall be implemented in a manner consistent with federal laws
regulating immigration, protecting the civil rights of all persons and
respecting the privileges and immunities of United States citizens.
Sec. 3. Title
13, chapter 15, Arizona Revised Statutes, is amended by adding section
13-1509, to read:
13-1509. Willful
failure to complete or carry an alien registration document;
assessment; exception; authenticated records;
classification
A. In
addition to any violation of federal law, a person is guilty of willful
failure to complete or carry an alien registration document if the
person is in violation of 8 United States Code section 1304(e)
or 1306(a).
B. In
the enforcement of this section, an alien's immigration status may be
determined by:
1. A
law enforcement officer who is authorized by the federal government to
verify or ascertain an alien's immigration status.
2. The
United States immigration and customs enforcement or the United States
customs and border protection pursuant to 8 United States Code section
1373(c).
C. A
person who is sentenced pursuant to this section is not eligible for
suspension of sentence, probation, pardon, commutation of sentence, or
release from confinement on any basis except as authorized by section
31‑233, subsection A or B until the sentence imposed by the court has
been served or the person is eligible for release pursuant to section
41-1604.07.
D. In
addition to any other penalty prescribed by law, the court shall order
the person to pay jail costs and an additional assessment in the
following amounts:
1. At
least five hundred dollars for a first violation.
2. Twice
the amount specified in paragraph 1 of this subsection if the person
was previously subject to an assessment pursuant to this subsection.
E. A
court shall collect the assessments prescribed in subsection D of this
section and remit the assessments to the department of public safety,
which shall establish a special subaccount for the monies in the
account established for the gang and immigration intelligence team
enforcement mission appropriation. Monies in the special
subaccount are subject to legislative appropriation for distribution
for gang and immigration enforcement and for county jail reimbursement
costs relating to illegal immigration.
F. This
section does not apply to a person who maintains authorization from the
federal government to remain in the United States.
G. Any
record that relates to the immigration status of a person is admissible
in any court without further foundation or testimony from a custodian
of records if the record is certified as authentic by the government
agency that is responsible for maintaining the record.
H. A
violation of this section is a class 1 misdemeanor, except that a
violation of this section is:
1. A
class 3 felony if the person violates this section while in possession
of any of the following:
(a) A
dangerous drug as defined in section 13-3401.
(b) Precursor
chemicals that are used in the manufacturing of methamphetamine in
violation of section 13-3404.01.
(c) A
deadly weapon or a dangerous instrument, as defined in section 13-105.
(d) Property
that is used for the purpose of committing an act of terrorism as
prescribed in section 13-2308.01.
2. A
class 4 felony if the person either:
(a) Is
convicted of a second or subsequent violation of this section.
(b) Within
sixty months before the violation, has been removed from the United
States pursuant to 8 United States Code section 1229a
or has accepted a voluntary removal from the United States pursuant to
8 United States Code section 1229c.
Sec. 4. Section
13-2319, Arizona Revised Statutes, is amended to read:
13-2319. Smuggling;
classification; definitions
A. It
is unlawful for a person to intentionally engage in the smuggling of
human beings for profit or commercial purpose.
B. A
violation of this section is a class 4 felony.
C. Notwithstanding
subsection B of this section, a violation of this section:
1. Is
a class 2 felony if the human being who is smuggled is under eighteen
years of age and is not accompanied by a family member over eighteen
years of age or the offense involved the use of a deadly weapon or
dangerous instrument.
2. Is
a class 3 felony if the offense involves the use or threatened use of
deadly physical force and the person is not eligible for suspension of
sentence, probation, pardon or release from confinement on any other
basis except pursuant to section 31-233, subsection A or B until the
sentence imposed by the court is served, the person is eligible for
release pursuant to section 41-1604.07 or the sentence is commuted.
D. Chapter
10 of this title does not apply to a violation of subsection C,
paragraph 1 of this section.
E. Notwithstanding
any other law, in the enforcement of this section a peace officer may
lawfully stop any person who is operating a motor vehicle if the
officer has reasonable suspicion to believe the person is in violation
of any civil traffic law.
E. F. For
the purposes of this section:
1. "Family
member" means the person's parent, grandparent, sibling or any other
person who is related to the person by consanguinity or affinity to the
second degree.
2. "Procurement
of transportation" means any participation in or facilitation of
transportation and includes:
(a) Providing
services that facilitate transportation including travel arrangement
services or money transmission services.
(b) Providing
property that facilitates transportation, including a weapon, a vehicle
or other means of transportation or false identification, or selling,
leasing, renting or otherwise making available a drop house as defined
in section 13-2322.
3. "Smuggling
of human beings" means the transportation, procurement of
transportation or use of property or real property by a person or an
entity that knows or has reason to know that the person or persons
transported or to be transported are not United States citizens,
permanent resident aliens or persons otherwise lawfully in this state
or have attempted to enter, entered or remained in the United States in
violation of law.
Sec. 5. Title
13, chapter 29, Arizona Revised Statutes, is amended by adding sections
13-2928 and 13-2929, to read:
13-2928. Unlawful
stopping to hire and pick up passengers for work; unlawful application,
solicitation or employment; classification; definitions
A. It
is unlawful for an occupant of a motor vehicle that is stopped on a
street, roadway or highway to attempt to hire or hire and pick up
passengers for work at a different location if the motor vehicle blocks
or impedes the normal movement of traffic.
B. It
is unlawful for a person to enter a motor vehicle that is stopped on a
street, roadway or highway in order to be hired by an occupant of the
motor vehicle and to be transported to work at a different location if
the motor vehicle blocks or impedes the normal movement of traffic.
C. It
is unlawful for a person who is unlawfully present in the United States
and who is an unauthorized alien to knowingly apply for work, solicit
work in a public place or perform work as an employee or independent
contractor in this state.
D. A
violation of this section is a class 1 misdemeanor.
E. For
the purposes of this section:
1. "Solicit"
means verbal or nonverbal communication by a gesture or a nod that
would indicate to a reasonable person that a person is willing to be
employed.
2. "Unauthorized
alien" means an alien who does not have the legal right or
authorization under federal law to work in the United States as
described in 8 United States Code section 1324a(h)(3).
13-2929. Unlawful
transporting, moving, concealing, harboring or shielding of unlawful
aliens; vehicle impoundment; exception; classification
A. It
is unlawful for a person who is in violation of a criminal offense to:
1. Transport
or move or attempt to transport or move an alien in this state, in
furtherance of the illegal presence of the alien in the United States,
in a means of transportation if the person knows or recklessly
disregards the fact that the alien has come to, has entered or remains
in the United States in violation of law.
2. Conceal,
harbor or shield or attempt to conceal, harbor or shield an alien from
detection in any place in this state, including any building or any
means of transportation, if the person knows or recklessly disregards
the fact that the alien has come to, has entered or remains in the
United States in violation of law.
3. Encourage
or induce an alien to come to or reside in this state if the person
knows or recklessly disregards the fact that such coming to, entering
or residing in this state is or will be in violation of law.
B. A
means of transportation that is used in the commission of a violation
of this section is subject to mandatory vehicle immobilization or
impoundment pursuant to section 28-3511.
C. This
section does not apply to a child protective services worker acting in
the worker's official capacity or a person who is acting in the
capacity of a first responder, an ambulance attendant or an emergency
medical technician and who is transporting or moving an alien in this
state pursuant to title 36, chapter 21.1.
D. A
person who violates this section is guilty of a class 1 misdemeanor and
is subject to a fine of at least one thousand dollars, except that a
violation of this section that involves ten or more illegal aliens is a
class 6 felony and the person is subject to a fine of at least one
thousand dollars for each alien who is involved.
Sec. 6. Section
13-3883, Arizona Revised Statutes, is amended to read:
13-3883. Arrest
by officer without warrant
A. A
peace officer may,
without a warrant, may
arrest
a person if he
the
officer has
probable cause to believe:
1. A
felony has been committed and probable cause to believe the person to
be arrested has committed the felony.
2. A
misdemeanor has been committed in his
the
officer's presence
and probable cause to believe the person to be arrested has committed
the offense.
3. The
person to be arrested has been involved in a traffic accident and
violated any criminal section of title 28, and that such violation
occurred prior to or immediately following such traffic accident.
4. A
misdemeanor or a petty offense has been committed and probable cause to
believe the person to be arrested has committed the
offense. A person arrested under this paragraph is eligible
for release under section 13‑3903.
5. The
person to be arrested has committed any public offense that makes the
person removable from the United States.
B. A
peace officer may stop and detain a person as is reasonably necessary
to investigate an actual or suspected violation of any traffic law
committed in the officer's presence and may serve a copy of the traffic
complaint for any alleged civil or criminal traffic
violation. A peace officer who serves a copy of the traffic
complaint shall do so within a reasonable time of the alleged criminal
or civil traffic violation.
Sec. 7. Section
23-212, Arizona Revised Statutes, is amended to read:
23-212. Knowingly
employing unauthorized aliens; prohibition; false and frivolous
complaints; violation; classification; license suspension and
revocation; affirmative defense
A. An
employer shall not knowingly employ an unauthorized alien. If, in
the case when an employer uses a contract, subcontract or other
independent contractor agreement to obtain the labor of an alien in
this state, the employer knowingly contracts with an unauthorized alien
or with a person who employs or contracts with an unauthorized alien to
perform the labor, the employer violates this subsection.
B. The
attorney general shall prescribe a complaint form for a person to
allege a violation of subsection A of this section. The
complainant shall not be required to list the complainant's social
security number on the complaint form or to have the complaint form
notarized. On receipt of a complaint on a prescribed complaint
form that an employer allegedly knowingly employs an unauthorized
alien, the attorney general or county attorney shall investigate
whether the employer has violated subsection A of this section.
If a complaint is received but is not submitted on a prescribed
complaint form, the attorney general or county attorney may investigate
whether the employer has violated subsection A of this section.
This subsection shall not be construed to prohibit the filing of
anonymous complaints that are not submitted on a prescribed complaint
form. The attorney general or county attorney shall not
investigate complaints that are based solely on race, color or national
origin. A complaint that is submitted to a county attorney shall
be submitted to the county attorney in the county in which the alleged
unauthorized alien is or was employed by the employer. The county
sheriff or any other local law enforcement agency may assist in
investigating a complaint. When investigating a complaint, the
attorney general or county attorney shall verify the work authorization
of the alleged unauthorized alien with the federal government pursuant
to 8 United States Code section 1373(c). A state, county or
local official shall not attempt to independently make a final
determination on whether an alien is authorized to work in the United
States. An alien's immigration status or work authorization
status shall be verified with the federal government pursuant to 8
United States Code section 1373(c). A person who knowingly files
a false and frivolous complaint under this subsection is guilty of a
class 3 misdemeanor.
C. If,
after an investigation, the attorney general or county attorney
determines that the complaint is not false and frivolous:
1. The
attorney general or county attorney shall notify the United States
immigration and customs enforcement of the unauthorized alien.
2. The
attorney general or county attorney shall notify the local law
enforcement agency of the unauthorized alien.
3. The
attorney general shall notify the appropriate county attorney to bring
an action pursuant to subsection D of this section if the complaint was
originally filed with the attorney general.
D. An
action for a violation of subsection A of this section shall be brought
against the employer by the county attorney in the county where the
unauthorized alien employee is or was employed by the employer.
The county attorney shall not bring an action against any employer for
any violation of subsection A of this section that occurs before
January 1, 2008. A second violation of this section shall be
based only on an unauthorized alien who is or was employed by the
employer after an action has been brought for a violation of subsection
A of this section or section 23‑212.01, subsection A.
E. For
any action in superior court under this section, the court shall
expedite the action, including assigning the hearing at the earliest
practicable date.
F. On
a finding of a violation of subsection A of this section:
1. For
a first violation, as described in paragraph 3 of this subsection, the
court:
(a) Shall
order the employer to terminate the employment of all unauthorized
aliens.
(b) Shall
order the employer to be subject to a three year probationary period
for the business location where the unauthorized alien performed
work. During the probationary period the employer shall file
quarterly reports in the form provided in section 23‑722.01 with the
county attorney of each new employee who is hired by the employer at
the business location where the unauthorized alien performed work.
(c) Shall
order the employer to file a signed sworn affidavit with the county
attorney within three business days after the order is
issued. The affidavit shall state that the employer has
terminated the employment of all unauthorized aliens in this state and
that the employer will not intentionally or knowingly employ an
unauthorized alien in this state. The court shall order the
appropriate agencies to suspend all licenses subject to this
subdivision that are held by the employer if the employer fails to file
a signed sworn affidavit with the county attorney within three business
days after the order is issued. All licenses that are
suspended under this subdivision shall remain suspended until the
employer files a signed sworn affidavit with the county attorney.
Notwithstanding any other law, on filing of the affidavit the suspended
licenses shall be reinstated immediately by the appropriate
agencies. For the purposes of this subdivision, the licenses that
are subject to suspension under this subdivision are all licenses that
are held by the employer specific to the business location where the
unauthorized alien performed work. If the employer does not hold
a license specific to the business location where the unauthorized
alien performed work, but a license is necessary to operate the
employer's business in general, the licenses that are subject to
suspension under this subdivision are all licenses that are held by the
employer at the employer's primary place of business. On receipt
of the court's order and notwithstanding any other law, the appropriate
agencies shall suspend the licenses according to the court's
order. The court shall send a copy of the court's order to the
attorney general and the attorney general shall maintain the copy
pursuant to subsection G of this section.
(d) May
order the appropriate agencies to suspend all licenses described in
subdivision (c) of this paragraph that are held by the employer for not
to exceed ten business days. The court shall base its decision to
suspend under this subdivision on any evidence or information submitted
to it during the action for a violation of this subsection and shall
consider the following factors, if relevant:
(i) The
number of unauthorized aliens employed by the employer.
(ii) Any
prior misconduct by the employer.
(iii) The
degree of harm resulting from the violation.
(iv) Whether
the employer made good faith efforts to comply with any applicable
requirements.
(v) The
duration of the violation.
(vi) The
role of the directors, officers or principals of the employer in the
violation.
(vii) Any
other factors the court deems appropriate.
2. For
a second violation, as described in paragraph 3 of this subsection, the
court shall order the appropriate agencies to permanently revoke all
licenses that are held by the employer specific to the business
location where the unauthorized alien performed work. If the
employer does not hold a license specific to the business location
where the unauthorized alien performed work, but a license is necessary
to operate the employer's business in general, the court shall order
the appropriate agencies to permanently revoke all licenses that are
held by the employer at the employer's primary place of
business. On receipt of the order and notwithstanding any
other law, the appropriate agencies shall immediately revoke the
licenses.
3. The
violation shall be considered:
(a) A
first violation by an employer at a business location if the violation
did not occur during a probationary period ordered by the court under
this subsection or section 23‑212.01, subsection F for that employer's
business location.
(b) A
second violation by an employer at a business location if the violation
occurred during a probationary period ordered by the court under this
subsection or section 23‑212.01, subsection F for that employer's
business location.
G. The
attorney general shall maintain copies of court orders that are
received pursuant to subsection F of this section and shall maintain a
database of the employers and business locations that have a first
violation of subsection A of this section and make the court orders
available on the attorney general's website.
H. On
determining whether an employee is an unauthorized alien, the court
shall consider only the federal government's determination pursuant to
8 United States Code section 1373(c). The federal government's
determination creates a rebuttable presumption of the employee's lawful
status. The court may take judicial notice of the federal
government's determination and may request the federal government to
provide automated or testimonial verification pursuant to 8 United
States Code section 1373(c).
I. For
the purposes of this section, proof of verifying the employment
authorization of an employee through the e-verify program creates a
rebuttable presumption that an employer did not knowingly employ an
unauthorized alien.
J. For
the purposes of this section, an employer that establishes that it has
complied in good faith with the requirements of 8 United States Code
section 1324a(b) establishes an affirmative defense that the employer
did not knowingly employ an unauthorized alien. An employer is
considered to have complied with the requirements of 8 United States
Code section 1324a(b), notwithstanding an isolated, sporadic or
accidental technical or procedural failure to meet the requirements, if
there is a good faith attempt to comply with the requirements.
K. It
is an affirmative defense to a violation of subsection A of this
section that the employer was entrapped. To claim
entrapment, the employer must admit by the employer's testimony or
other evidence the substantial elements of the violation. An
employer who asserts an entrapment defense has the burden of proving
the following by a preponderance of the evidence:
1. The
idea of committing the violation started with law enforcement officers
or their agents rather than with the employer.
2. The
law enforcement officers or their agents urged and induced the employer
to commit the violation.
3. The
employer was not predisposed to commit the violation before the law
enforcement officers or their agents urged and induced the employer to
commit the violation.
L. An
employer does not establish entrapment if the employer was predisposed
to violate subsection A of this section and the law enforcement
officers or their agents merely provided the employer with an
opportunity to commit the violation. It is not entrapment for law
enforcement officers or their agents merely to use a ruse or to conceal
their identity. The conduct of law enforcement officers and
their agents may be considered in determining if an employer has proven
entrapment.
Sec. 8. Section
23-212.01, Arizona Revised Statutes, is amended to read:
23-212.01. Intentionally
employing unauthorized aliens; prohibition; false and frivolous
complaints; violation; classification; license suspension and
revocation; affirmative defense
A. An
employer shall not intentionally employ an unauthorized alien.
If, in the case when an employer uses a contract, subcontract or other
independent contractor agreement to obtain the labor of an alien in
this state, the employer intentionally contracts with an unauthorized
alien or with a person who employs or contracts with an unauthorized
alien to perform the labor, the employer violates this subsection.
B. The
attorney general shall prescribe a complaint form for a person to
allege a violation of subsection A of this section. The
complainant shall not be required to list the complainant's social
security number on the complaint form or to have the complaint form
notarized. On receipt of a complaint on a prescribed complaint
form that an employer allegedly intentionally employs an unauthorized
alien, the attorney general or county attorney shall investigate
whether the employer has violated subsection A of this
section. If a complaint is received but is not submitted on
a prescribed complaint form, the attorney general or county attorney
may investigate whether the employer has violated subsection A of
this section. This subsection shall not be construed to prohibit
the filing of anonymous complaints that are not submitted on a
prescribed complaint form. The attorney general or county
attorney shall not investigate complaints that are based solely on
race, color or national origin. A complaint that is
submitted to a county attorney shall be submitted to the county
attorney in the county in which the alleged unauthorized alien is or
was employed by the employer. The county sheriff or any other
local law enforcement agency may assist in investigating a
complaint. When investigating a complaint, the attorney general
or county attorney shall verify the work authorization of the alleged
unauthorized alien with the federal government pursuant to
8 United States Code section 1373(c). A state, county or
local official shall not attempt to independently make a final
determination on whether an alien is authorized to work in the United
States. An alien's immigration status or work authorization
status shall be verified with the federal government pursuant to 8
United States Code section 1373(c). A person who knowingly files
a false and frivolous complaint under this subsection is guilty of a
class 3 misdemeanor.
C. If,
after an investigation, the attorney general or county attorney
determines that the complaint is not false and frivolous:
1. The
attorney general or county attorney shall notify the United States
immigration and customs enforcement of the unauthorized alien.
2. The
attorney general or county attorney shall notify the local law
enforcement agency of the unauthorized alien.
3. The
attorney general shall notify the appropriate county attorney to bring
an action pursuant to subsection D of this section if the complaint was
originally filed with the attorney general.
D. An
action for a violation of subsection A of this section shall be brought
against the employer by the county attorney in the county where the
unauthorized alien employee is or was employed by the employer.
The county attorney shall not bring an action against any employer for
any violation of subsection A of this section that occurs before
January 1, 2008. A second violation of this section shall be based only
on an unauthorized alien who is or was employed by the employer after
an action has been brought for a violation of subsection A of this
section or section 23‑212, subsection A.
E. For
any action in superior court under this section, the court shall
expedite the action, including assigning the hearing at the earliest
practicable date.
F. On
a finding of a violation of subsection A of this section:
1. For
a first violation, as described in paragraph 3 of this subsection, the
court shall:
(a) Order
the employer to terminate the employment of all unauthorized aliens.
(b) Order
the employer to be subject to a five year probationary period for the
business location where the unauthorized alien performed work. During
the probationary period the employer shall file quarterly reports in
the form provided in section 23‑722.01 with the county attorney of each
new employee who is hired by the employer at the business location
where the unauthorized alien performed work.
(c) Order
the appropriate agencies to suspend all licenses described in
subdivision (d) of this paragraph that are held by the employer for a
minimum of ten days. The court shall base its decision on the
length of the suspension under this subdivision on any evidence or
information submitted to it during the action for a violation of this
subsection and shall consider the following factors, if relevant:
(i) The
number of unauthorized aliens employed by the employer.
(ii) Any
prior misconduct by the employer.
(iii) The
degree of harm resulting from the violation.
(iv) Whether
the employer made good faith efforts to comply with any applicable
requirements.
(v) The
duration of the violation.
(vi) The
role of the directors, officers or principals of the employer in the
violation.
(vii) Any
other factors the court deems appropriate.
(d) Order
the employer to file a signed sworn affidavit with the county
attorney. The affidavit shall state that the employer has
terminated the employment of all unauthorized aliens in this state and
that the employer will not intentionally or knowingly employ an
unauthorized alien in this state. The court shall order the
appropriate agencies to suspend all licenses subject to this
subdivision that are held by the employer if the employer fails to file
a signed sworn affidavit with the county attorney within three business
days after the order is issued. All licenses that are
suspended under this subdivision for failing to file a signed sworn
affidavit shall remain suspended until the employer files a signed
sworn affidavit with the county attorney. For the purposes of
this subdivision, the licenses that are subject to suspension under
this subdivision are all licenses that are held by the employer
specific to the business location where the unauthorized alien
performed work. If the employer does not hold a license specific
to the business location where the unauthorized alien performed work,
but a license is necessary to operate the employer's business in
general, the licenses that are subject to suspension under this
subdivision are all licenses that are held by the employer at the
employer's primary place of business. On receipt of the court's
order and notwithstanding any other law, the appropriate agencies shall
suspend the licenses according to the court's order. The court
shall send a copy of the court's order to the attorney general and the
attorney general shall maintain the copy pursuant to subsection G
of
this section.
2. For
a second violation, as described in paragraph 3 of this subsection, the
court shall order the appropriate agencies to permanently revoke all
licenses that are held by the employer specific to the business
location where the unauthorized alien performed work. If the
employer does not hold a license specific to the business location
where the unauthorized alien performed work, but a license is necessary
to operate the employer's business in general, the court shall order
the appropriate agencies to permanently revoke all licenses that are
held by the employer at the employer's primary place of
business. On receipt of the order and notwithstanding any
other law, the appropriate agencies shall immediately revoke the
licenses.
3. The
violation shall be considered:
(a) A
first violation by an employer at a business location if the violation
did not occur during a probationary period ordered by the court under
this subsection or section 23‑212, subsection F
for
that employer's business location.
(b) A
second violation by an employer at a business location if the violation
occurred during a probationary period ordered by the court under this
subsection or section 23‑212, subsection F
for
that employer's business location.
G. The
attorney general shall maintain copies of court orders that are
received pursuant to subsection F
of
this section and shall maintain a database of the employers and
business locations that have a first violation of subsection A of this
section and make the court orders available on the attorney general's
website.
H. On
determining whether an employee is an unauthorized alien, the court
shall consider only the federal government's determination pursuant to
8 United States Code section 1373(c). The federal government's
determination creates a rebuttable presumption of the employee's lawful
status. The court may take judicial notice of the federal
government's determination and may request the federal government to
provide automated or testimonial verification pursuant to 8 United
States Code section 1373(c).
I. For
the purposes of this section, proof of verifying the employment
authorization of an employee through the e-verify program creates a
rebuttable presumption that an employer did not intentionally employ an
unauthorized alien.
J. For
the purposes of this section, an employer that establishes that it has
complied in good faith with the requirements of 8 United States Code
section 1324a(b) establishes an affirmative defense that the employer
did not intentionally employ an unauthorized alien. An employer
is considered to have complied with the requirements of 8 United States
Code section 1324a(b), notwithstanding an isolated, sporadic or
accidental technical or procedural failure to meet the requirements, if
there is a good faith attempt to comply with the requirements.
K. It
is an affirmative defense to a violation of subsection A of this
section that the employer was entrapped. To claim
entrapment, the employer must admit by the employer's testimony or
other evidence the substantial elements of the violation. An
employer who asserts an entrapment defense has the burden of proving
the following by a preponderance of the evidence:
1. The
idea of committing the violation started with law enforcement officers
or their agents rather than with the employer.
2. The
law enforcement officers or their agents urged and induced the employer
to commit the violation.
3. The
employer was not predisposed to commit the violation before the law
enforcement officers or their agents urged and induced the employer to
commit the violation.
L. An
employer does not establish entrapment if the employer was predisposed
to violate subsection A of this section and the law enforcement
officers or their agents merely provided the employer with an
opportunity to commit the violation. It is not entrapment for law
enforcement officers or their agents merely to use a ruse or to conceal
their identity. The conduct of law enforcement officers and their
agents may be considered in determining if an employer has proven
entrapment.
Sec. 9. Section
23-214, Arizona Revised Statutes, is amended to read:
23-214. Verification
of employment eligibility; e‑verify program; economic development
incentives; list of registered employers
A. After
December 31, 2007, every employer, after hiring an employee, shall
verify the employment eligibility of the employee through the e-verify
program
and shall keep a record of the verification for the duration of the
employee's employment or at least three years, whichever is longer.
B. In
addition to any other requirement for an employer to receive an
economic development incentive from a government entity, the employer
shall register with and participate in the e-verify program.
Before receiving the economic development incentive, the employer shall
provide proof to the government entity that the employer is registered
with and is participating in the e-verify program. If the
government entity determines that the employer is not complying with
this subsection, the government entity shall notify the employer by
certified mail of the government entity's determination of
noncompliance and the employer's right to appeal the
determination. On a final determination of noncompliance, the
employer shall repay all monies received as an economic development
incentive to the government entity within thirty days of the final
determination. For the purposes of this subsection:
1. "Economic
development incentive" means any grant, loan or performance-based
incentive from any government entity that is awarded after September
30, 2008. Economic development incentive does not include any tax
provision under title 42 or 43.
2. "Government
entity" means this state and any political subdivision of this state
that receives and uses tax revenues.
C. Every
three months the attorney general shall request from the United States
department of homeland security a list of employers from this state
that are registered with the e-verify program. On receipt of the
list of employers, the attorney general shall make the list available
on the attorney general's website.
Sec. 10. Section
28-3511, Arizona Revised Statutes, is amended to read:
28-3511. Removal
and immobilization or impoundment of vehicle
A. A
peace officer shall cause the removal and either immobilization or
impoundment of a vehicle if the peace officer determines that a person
is driving the vehicle while any of the following applies:
1. The
person's driving privilege is suspended or revoked for any reason.
2. The
person has not ever been issued a valid driver license or permit by
this state and the person does not produce evidence of ever having a
valid driver license or permit issued by another
jurisdiction. This paragraph does not apply to the operation
of an implement of husbandry.
3. The
person is subject to an ignition interlock device requirement pursuant
to chapter 4 of this title and the person is operating a vehicle
without a functioning certified ignition interlock device. This
paragraph does not apply to a person operating an employer's vehicle or
the operation of a vehicle due to a substantial emergency as defined in
section 28‑1464.
4. In
furtherance of the illegal presence of an alien in the United States
and in violation of a criminal offense, the person is transporting or
moving or attempting to transport or move an alien in this state in a
vehicle if the person knows or recklessly disregards the fact that the
alien has come to, has entered or remains in the United States in
violation of law.
5. The
person is concealing, harboring or shielding or attempting to conceal,
harbor or shield from detection an alien in this state in a vehicle if
the person knows or recklessly disregards the fact that the alien has
come to, entered or remains in the United States in violation of law.
B. A
peace officer shall cause the removal and impoundment of a vehicle if
the peace officer determines that a person is driving the vehicle and
if all of the following apply:
1. The
person's driving privilege is canceled, suspended or revoked for any
reason or the person has not ever been issued a driver license or
permit by this state and the person does not produce evidence of ever
having a driver license or permit issued by another jurisdiction.
2. The
person is not in compliance with the financial responsibility
requirements of chapter 9, article 4 of this title.
3. The
person is driving a vehicle that is involved in an accident that
results in either property damage or injury to or death of another
person.
C. Except
as provided in subsection D of this section, while a peace officer has
control of the vehicle the peace officer shall cause the removal and
either immobilization or impoundment of the vehicle if the peace
officer has probable cause to arrest the driver of the vehicle for a
violation of section 4‑244, paragraph 34 or section 28‑1382 or 28‑1383.
D. A
peace officer shall not cause the removal and either the immobilization
or impoundment of a vehicle pursuant to subsection C of this section if
all of the following apply:
1. The
peace officer determines that the vehicle is currently registered and
that the driver or the vehicle is in compliance with the financial
responsibility requirements of chapter 9, article 4 of this title.
2. The
spouse of the driver is with the driver at the time of the arrest.
3. The
peace officer has reasonable grounds to believe that the spouse of the
driver:
(a) Has
a valid driver license.
(b) Is
not impaired by intoxicating liquor, any drug, a vapor releasing
substance containing a toxic substance or any combination of liquor,
drugs or vapor releasing substances.
(c) Does
not have any spirituous liquor in the spouse's body if the spouse is
under twenty‑one years of age.
4. The
spouse notifies the peace officer that the spouse will drive the
vehicle from the place of arrest to the driver's home or other place of
safety.
5. The
spouse drives the vehicle as prescribed by paragraph 4 of this
subsection.
E. Except
as otherwise provided in this article, a vehicle that is removed and
either immobilized or impounded pursuant to subsection A, B or C of
this section shall be immobilized or impounded for thirty days.
An insurance company does not have a duty to pay any benefits for
charges or fees for immobilization or impoundment.
F. The
owner of a vehicle that is removed and either immobilized or impounded
pursuant to subsection A, B or C of this section, the spouse of the
owner and each person identified on the department's record with an
interest in the vehicle shall be provided with an opportunity for an
immobilization or poststorage hearing pursuant to section 28‑3514.
Sec. 11. Title
41, chapter 12, article 2, Arizona Revised Statutes, is amended by
adding section 41-1724, to read:
41-1724. Gang
and immigration intelligence team enforcement mission fund
The
gang and immigration intelligence team enforcement mission fund is
established consisting of monies deposited pursuant to section 11‑1051
and monies appropriated by the legislature. The department shall
administer the fund. Monies in the fund are subject to
legislative appropriation and shall be used for gang and immigration
enforcement and for county jail reimbursement costs relating to illegal
immigration.
Sec. 12. Severability,
implementation and construction
A. If
a provision of this act or its application to any person or
circumstance is held invalid, the invalidity does not affect other
provisions or applications of the act that can be given effect without
the invalid provision or application, and to this end the provisions of
this act are severable.
B. The
terms of this act regarding immigration shall be construed to have the
meanings given to them under federal immigration law.
C. This
act shall be implemented in a manner consistent with federal laws
regulating immigration, protecting the civil rights of all persons and
respecting the privileges and immunities of United States citizens.
D. Nothing
in this act shall implement or shall be construed or interpreted to
implement or establish the REAL ID act of 2005 (P.L. 109-13, division
B; 119 Stat. 302) including the use of a radio frequency identification
chip.
Sec. 13. Short
title
This
act may be cited as the "Support Our Law Enforcement and Safe
Neighborhoods Act".
“Text of Arizona’s Anti-Illegal Immigration Law – Part 2,” which contains the text of new ARS Section 13-1509.
13-1509. Trespassing
by illegal aliens; assessment; exception; classification
A. In
addition to any violation of federal law, a person is guilty of
trespassing if the person is both:
1. Present
on any public or private land in this state.
2. In violation of 8 United States Code section
1304(e)
[KEYTLaw
Comment
- Section 1304(e) states: "Every alien, eighteen years of age and over,
shall at all times carry with him and have in his personal possession
any certificate of alien registration or alien registration receipt
card issued to him pursuant to subsection (d) of this section. Any
alien who fails to comply with the provisions of this subsection shall
be guilty of a misdemeanor and shall upon conviction for each offense
be fined not to exceed $100 or be imprisoned not more than thirty days,
or both."] or 1306(a).
[KEYTLaw
Comment
- Section 1306(a) states: "Any alien required to apply for registration
and to be fingerprinted in the United States who willfully fails or
refuses to make such application or to be fingerprinted, and any parent
or legal guardian required to apply for the registration of any alien
who willfully fails or refuses to file application for the registration
of such alien shall be guilty of a misdemeanor and shall, upon
conviction thereof, be fined not to exceed $1,000 or be imprisoned not
more than six months, or both.]
B. In
the enforcement of this section, the final determination of an
alien’s immigration status shall be determined by either:
1. A
law enforcement officer who is authorized by the federal government to
verify or ascertain an alien’s immigration status.
2. A law enforcement officer or agency communicating with
the United States immigration and customs enforcement or the United
States border protection pursuant to 8 United States Code section 1373(c)
[KEYTLaw
Comment
- Section 1373(c) states: "The Immigration and Naturalization Service
shall respond to an inquiry by a Federal, State, or local government
agency, seeking to verify or ascertain the citizenship or immigration
status of any individual within the jurisdiction of the agency for any
purpose authorized by law, by providing the requested verification or
status information.]
C. A
person who is sentenced pursuant to this section is not eligible for
suspension or commutation of sentence or release on any basis until the
sentence imposed is served.
D. In
addition to any other penalty prescribed by law, the court shall order
the person to pay jail costs and an additional assessment in the
following amounts:
1. At
least five hundred dollars for a first violation.
2. Twice the amount specified in paragraph 1 of this
subsection if the person was previously subject to an assessment
pursuant to this subsection.
E. A
court shall collect the assessments prescribed in subsection D of this
section and remit the assessments to the department of public safety,
which shall establish a special subaccount for the monies in the
account established for the gang and immigration intelligence team
enforcement mission appropriation. Monies in the special
subaccount are subject to legislative appropriation for distribution
for gang and immigration enforcement and for county jail reimbursement
costs relating to illegal immigration.
F. This
section does not apply to a person who maintains authorization from the
federal government to remain in the United States.
G. A
violation of this section is a class 1 misdemeanor, except that a
violation of this section is:
1. A
class 3 felony if the person violates this section while in possession
of any of the following:
(a) A
dangerous drug as defined in section
13-3401.
(b) Precursor chemicals that are used in the manufacturing
of methamphetamine in violation of section
13-3404.01.
(c) A deadly weapon or a dangerous instrument, as defined in
section
13-105.
(d) Property that is used for the purpose of committing an
act of terrorism as prescribed in section 13-2308.01.
2. A
class 4 felony if the person either:
(a) Is
convicted of a second or subsequent violation of this section.
(b) Within sixty months before the violation, has been
removed from the United States pursuant to 8 United States Code section
1229a
or has accepted a voluntary removal from the United States pursuant to
8 United States Code section
1229c.
“Text of
Arizona’s Anti-Illegal Immigration Law – Part 3,”
which contains the text of new ARS Sections
13-2319.E,
13-2928 and 13-2929
13-2319.
Smuggling; classification; definitions
E. Notwithstanding
any other law, a peace officer may lawfully stop any person who is
operating a motor vehicle if the officer has reasonable suspicion to
believe the person is in violation of any civil traffic law and this
section.
13-2928. Unlawful
stopping to hire and pick up passengers for work; unlawful application,
solicitation or employment; classification; definitions
A. It
is unlawful for an occupant of a motor vehicle that is stopped on a
street, roadway or highway to attempt to hire or hire and pick up
passengers for work at a different location if the motor vehicle blocks
or impedes the normal movement of traffic.
B. It
is unlawful for a person to enter a motor vehicle that is stopped on a
street, roadway or highway in order to be hired by an occupant of the
motor vehicle and to be transported to work at a different location if
the motor vehicle blocks or impedes the normal movement of traffic.
C. It
is unlawful for a person who is unlawfully present in the United States
and who is an unauthorized alien to knowingly apply for work, solicit
work in a public place or perform work as an employee or independent
contractor in this state.
D. A
violation of this section is a class 1 misdemeanor.
E. For
the purposes of this section:
1. ”Solicit”
means verbal or nonverbal communication by a gesture or a nod that
would indicate to a reasonable person that a person is willing to be
employed.
2. ”Unauthorized
alien” means an alien who does not have the legal right or
authorization under federal law to work in the United States as
described in 8 United States Code section
1324a(h)(3)
[KEYTLaw
Comment: This subsection states, "As used in this
section, the term “unauthorized alien” means, with respect
to the employment of an alien at a particular time, that the alien is
not at that time either (A) an alien lawfully admitted for permanent
residence, or (B) authorized to be so employed by this chapter or by
the Attorney General."].
13-2929. Unlawful
transporting, moving, concealing, harboring or shielding of unlawful
aliens; vehicle impoundment; classification
A. It
is unlawful for a person who is in violation of a criminal offense to:
1. Transport
or move or attempt to transport or move an alien in this state in a
means of transportation if the person knows or recklessly disregards
the fact that the alien has come to, has entered or remains in the
United States in violation of law.
2. Conceal, harbor or shield or attempt to conceal, harbor
or shield an alien from detection in any place in this state, including
any building or any means of transportation, if the person knows or
recklessly disregards the fact that the alien has come to, has entered
or remains in the United States in violation of law.
3. Encourage or induce an alien to come to or reside in this
state if the person knows or recklessly disregards the fact that such
coming to, entering or residing in this state is or will be in
violation of law.
B. A
means of transportation that is used in the commission of a violation
of this section is subject to mandatory vehicle immobilization or
impoundment pursuant to section
28-3511
[KEYTLaw
Comment: When the new law become effective, the
following new subsection A.4 will be added to section 28-3511:
"4. The person is in violation of a criminal offense and is
transporting, moving, concealing, harboring or shielding or attempting
to transport, move, conceal, harbor or shield an alien in this state in
a vehicle if the person knows or recklessly disregards the fact that
the alien has come to, has entered or remains in the United States in
violation of law."].
C. A
person who violates this section is guilty of a class 1 misdemeanor and
is subject to a fine of at least one thousand dollars, except that a
violation of this section that involves ten or more illegal aliens is a
class 6 felony and the person is subject to a fine of at least one
thousand dollars for each alien who is involved.
“Text of
Arizona’s Anti-Illegal Immigration Law – Part 4,”
which contains the text of new ARS Sections 23-212,
23-212.01, 23-214, 28-3511 and 41-1274
23-212.
Knowingly employing unauthorized aliens; prohibition; false and
frivolous complaints; violation; classification; license suspension and
revocation; affirmative defense
A.
[KEYTLaw
Comment: This subsection A is existing Arizona
law that is not modified by the new law, but is referred to in the
following new provisions. starting with subsection K.] An
employer shall not knowingly employ an unauthorized alien. If, in the
case when an employer uses a contract, subcontract or other independent
contractor agreement to obtain the labor of an alien in this state, the
employer knowingly contracts with an unauthorized alien or with a
person who employs or contracts with an unauthorized alien to perform
the labor, the employer violates this subsection.
K. It
is an affirmative defense to a violation of subsection A of this
section that the employer was entrapped. To claim
entrapment, the employer must admit by the employer’s testimony
or other evidence the substantial elements of the violation. An
employer who asserts an entrapment defense has the burden of proving
the following by clear and convincing evidence:
1. The
idea of committing the violation started with law enforcement officers
or their agents rather than with the employer.
2. The law enforcement officers or their agents urged and
induced the employer to commit the violation.
3. The employer was not predisposed to commit the violation
before the law enforcement officers or their agents urged and induced
the employer to commit the violation.
L. An
employer does not establish entrapment if the employer was predisposed
to violate subsection A of this section and the law enforcement
officers or their agents merely provided the employer with an
opportunity to commit the violation. It is not entrapment for law
enforcement officers or their agents merely to use a ruse or to conceal
their identity. The conduct of law enforcement officers and
their agents may be considered in determining if an employer has proven
entrapment.
23-212.01.
Intentionally employing unauthorized aliens; prohibition; false and
frivolous complaints; violation; classification; license suspension and
revocation; affirmative defense
A.
[KEYTLaw
Comment: This subsection A is existing Arizona
law that is not modified by the new law, but is referred to in the
following new provisions starting with subsection K.] An employer
shall not intentionally employ an unauthorized alien. If, in the
case when an employer uses a contract, subcontract or other independent
contractor agreement to obtain the labor of an alien in this state, the
employer intentionally contracts with an unauthorized alien or with a
person who employs or contracts with an unauthorized alien to perform
the labor, the employer violates this subsection.
K. It
is an affirmative defense to a violation of subsection A of this
section that the employer was entrapped. To claim
entrapment, the employer must admit by the employer’s testimony
or other evidence the substantial elements of the violation. An
employer who asserts an entrapment defense has the burden of proving
the following by clear and convincing evidence:
1. The
idea of committing the violation started with law enforcement officers
or their agents rather than with the employer.
2. The law enforcement officers or their agents urged and
induced the employer to commit the violation.
3. The employer was not predisposed to commit the violation
before the law enforcement officers or their agents urged and induced
the employer to commit the violation.
L. An
employer does not establish entrapment if the employer was predisposed
to violate subsection A of this section and the law enforcement
officers or their agents merely provided the employer with an
opportunity to commit the violation. It is not entrapment for law
enforcement officers or their agents merely to use a ruse or to conceal
their identity. The conduct of law enforcement officers and their
agents may be considered in determining if an employer has proven
entrapment.
23-214. Verification
of employment eligibility; e‑verify program; economic development
incentives; list of registered employers
A. After
December 31, 2007, every employer, after hiring an employee, shall
verify the employment eligibility of the employee through the e-verify
program [KEYTLaw
Comment: The new law added the following text.]
and shall keep a record of the verification for the duration of the
employee’s employment or at least three years, whichever is
longer.
28-3511. Removal
and immobilization or impoundment of vehicle
A.
[KEYTLaw
Comment: This subsection A is existing Arizona
law that is not modified by the new law. The new law adds new
subsection 4.] A peace officer shall cause the removal and either
immobilization or impoundment of a vehicle if the peace officer
determines that a person is driving the vehicle while any of the
following applies:
4. The
person is in violation of a criminal offense and is transporting,
moving, concealing, harboring or shielding or attempting to transport,
move, conceal, harbor or shield an alien in this state in a vehicle if
the person knows or recklessly disregards the fact that the alien has
come to, has entered or remains in the United States in violation of
law.
41-1724. Gang
and immigration intelligence team enforcement mission fund
The
gang and immigration intelligence team enforcement mission fund is
established consisting of monies deposited pursuant to section
11‑1051
and monies appropriated by the legislature. The department shall
administer the fund. Monies in the fund are subject to
legislative appropriation and shall be used for gang and immigration
enforcement and for county jail reimbursement costs relating to illegal
immigration
Copyright 2010 South Park Services LLC. All rights Reserved.