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IMMIGRATION AND NATURALIZATION

OLR Research Report


May 14, 2010

 

2010-R-0213

SUMMARY OF ARIZONA IMMIGRATION LEGISLATION AND LEGISLATION IN OTHER STATES

By: James Orlando, Legislative Analyst

You asked for a summary of Arizona's recent immigration legislation and recent immigration legislation or proposals in other states.

SUMMARY

On April 23, 2010, Arizona Governor Jan Brewer signed into law Arizona Senate Bill 1070, the “Support our Law Enforcement and Safe Neighborhoods Act.” On April 30, 2010, Governor Brewer signed into law House Bill 2162, which amended certain provisions of SB 1070 and added other immigration-related provisions. The laws are effective July 29, 2010.

As explained in more detail below, SB 1070, as amended by HB 2162:

1. prohibits state and local law enforcement from restricting the enforcement of federal immigration laws;

2. requires law enforcement, in making a lawful stop, detention, or arrest for another law, to make a reasonable attempt to determine the person's immigration status where reasonable suspicion exists that the person is not lawfully present in the country;

3. creates a new misdemeanor offense for the willful failure to complete or carry an immigrant registration document under certain circumstances;

4. authorizes a peace officer involved in enforcement related to human smuggling to lawfully stop anyone in a motor vehicle on reasonable suspicion that the person is violating a civil traffic law;

5. creates misdemeanor offenses, in certain circumstances, for (a) stopping to hire and pick up passengers for work while blocking traffic, (b) getting hired in such a fashion, and (c) applying for or soliciting work while unlawfully present in the country;

6. creates misdemeanor offenses (or felonies if 10 or more illegal immigrants are involved) for unlawfully transporting or concealing an illegal immigrant or encouraging one to enter or remain in the country illegally;

7. authorizes a peace officer to arrest a person without a warrant on probable cause that the person has committed a public offense that makes the person removable from the country;

8. requires employers to keep employee eligibility records for three years or the duration of employment, whichever is longer;

9. allows employers to raise an affirmative defense of entrapment to a charge of knowingly or intentionally employing unauthorized immigrants;

10. adds to the list of reasons a peace officer must remove and either immobilize or impound a vehicle; and

11. makes other changes.

According to a recent report by the Immigrant Policy Project of the National Conference of State Legislatures (NCSL), in the first quarter of 2010, 45 states introduced 1,180 bills and resolutions concerning immigration and related issues, including refugees. The most common topics for introduced legislation include employment, identification and drivers' licenses, and law enforcement. The most common topics for enacted legislation include these same topics as well as education. A copy of the report is attached and is available on-line (NCSL Immigrant Policy Project, 2010 Immigration-Related Bills and Resolutions in the States, April 27, 2010, available at http://www.ncsl.org/portals/1/documents/immig/immigration_report_april2010.pdf).

ARIZONA SB 1070, AS AMENDED BY HB 2162

Below is a summary of all sections of these bills. Please note that not every provision is discussed in full detail.

Stated Intent

Section 1 of SB 1070 states the bill's legislative purpose:

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.

Prohibition on State and Local Law Enforcement from Restricting Enforcement of Federal Immigration Laws

The legislation prohibits state or local officials or agencies from “limit[ing] or restrict[ing] the enforcement of federal immigration laws to less than the full extent permitted by federal law.” It allows legal Arizona residents to bring an action to challenge any official or agency that adopts or implements a policy that would limit or restrict the enforcement of federal immigration law. Violations are subject to civil penalties of $500 to $5,000 for each day the policy remains in effect after the action is filed.

The money collected from these penalties is deposited in the Gang and Immigration Intelligence Team Enforcement Mission Fund created by the bill. The fund is for (1) gang and immigration enforcement and (2) county jail reimbursement costs relating to illegal immigration.

The legislation allows recovery of court costs and reasonable attorney's fees by a (1) person, including state or local officials or (2) state or local agency, that prevails on the merits in a proceeding under this section. It also indemnifies law enforcement officers against reasonable costs and expenses, including attorney's fees, incurred in any proceeding against the officer under this section, unless the officer acted in bad faith (SB 1070, 2, 11; HB 2162, 3).

Determination of Person's Immigration Status Due to Reasonable Suspicion and Arrests

The legislation requires state and local law enforcement, whenever making a lawful stop, detention, or arrest in the enforcement of another state or local law, to make a reasonable attempt to determine the person's immigration status where reasonable suspicion exists that the person is unlawfully present in the county. Law enforcement should only make this attempt when practicable and when doing so would not hinder or obstruct an investigation. Anyone arrested cannot be released until his or her immigration status is determined and verified with the federal government. Law enforcement “may not 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 be lawfully present if the person provides to law enforcement (1) a valid Arizona driver's license or nonoperating identification license, (2) a valid tribal identification, or (3) a valid United States, state, or local government-issued identification that requires lawful presence before issuance.

The bill requires the United States Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) to be immediately notified when someone unlawfully present is convicted of a violation of state or local law, discharged from prison, or assessed a fine.

If a law enforcement agency verifies that someone in its custody is unlawfully present, the agency may transport the person to federal custody (1) in Arizona or (2) after obtaining judicial authorization, outside of Arizona.

Immigration status may be determined by (1) a law enforcement officer authorized by the federal government to do so or (2) ICE or CBP pursuant to federal law.

The legislation provides that state and local officials and agencies, except as provided in federal law, may not be prohibited or restricted from sending, receiving, or maintaining information relating to an individual's immigration status or exchanging that information with any governmental entity:

1. to determine eligibility for government services, licenses, or public benefits;

2. to verify a claim of residence or domicile if required by state law or court order;

3. for illegal immigrants, to determine whether they comply with federal registration laws; and

4. pursuant to federal law regarding communication between government entities and federal immigration authorities (SB 1070, 2; HB 2162, 3).

Willful Failure to Complete or Carry Immigrant Registration

The legislation creates a new state offense for the willful failure to complete or carry an immigrant registration document if the person violates certain federal requirements for noncitizens to register and carry registration paperwork. Immigration status may be determined by (1) a law enforcement officer authorized by the federal government to do so or (2) ICE or CBP pursuant to federal law. Law enforcement “may not 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.”

The offense is a misdemeanor with a maximum fine of $100 and maximum imprisonment of (1) 20 days for a first violation or (2) 30 days for a subsequent violation. The individual must also pay jail costs. The legislation makes people sentenced for this offense ineligible for a suspended sentence, probation, pardon, commutation of sentence, or early release, with exceptions.

Records relating to a person's immigration status are automatically admissible without further foundation or testimony if the government agency responsible for maintaining the records certifies their authenticity.

The legislation provides that this offense does not apply to persons who maintain authorization from the federal government to remain in the country (SB 1070, 3; HB 2162, 4).

Lawful Stop of Motor Vehicle Related to Crime of Smuggling Human Beings

The legislation provides that in enforcement related to the crime of smuggling human beings for profit or commercial purpose, a peace officer may lawfully stop anyone who is operating a motor vehicle upon reasonable suspicion to believe that the person is violating a civil traffic law (SB 1070, 4).

Unlawfully Stopping to Hire and Pick Up Passengers for Work and Unlawfully Applying for or Soliciting Work

The legislation makes it is a misdemeanor for an occupant of a motor vehicle stopped on a street, roadway, or highway to hire or attempt to hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes traffic. The passengers who enter such a motor vehicle to be hired and transported for work commit a misdemeanor. It is also a misdemeanor for an unlawfully present and unauthorized person to knowingly apply for work, solicit work in a public place, or perform work in Arizona. Violators can face up to six months' imprisonment for a first offense.

Law enforcement “may not 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.”

Immigration status may be determined by (1) a law enforcement officer authorized by the federal government to do so or (2) ICE or CBP pursuant to federal law (SB 1070, 5; HB 2162, 5).

Unlawfully Transporting, Concealing, or Encouraging

The legislation makes it unlawful for a person who is violation of a criminal offense to:

1. transport or attempt to transport an illegal immigrant in Arizona in furtherance of the immigrant's illegal presence in the country if the person knows or recklessly disregards that the immigrant is in the United States unlawfully;

2. conceal, harbor, or shield an illegal immigrant from detection (or attempt to do so) in any place in Arizona, including a building or means of transportation, if the person knows or recklessly disregards that the immigrant is in the United States unlawfully; or

3. encourage or induce an illegal immigrant to enter or reside in Arizona if the person knows or recklessly disregards the fact that such entering or residing would violate law.

Violations are misdemeanors subject to a maximum of six months' imprisonment for a first offense. Violators are also subject to a fine of at least $1,000. However, a violation that involves 10 or more illegal immigrants is a felony subject to a maximum of one and a half years' imprisonment for a first offense and a fine of at least $1,000 for each illegal immigrant involved.

Any means of transportation used in committing such a violation is subject to mandatory immobilization or impoundment.

Law enforcement “may not 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.”

Immigration status may be determined by (1) a law enforcement officer authorized by the federal government to do so or (2) ICE or CBP pursuant to federal law.

These provisions do not apply to (1) child protective services workers acting in their official capacity or (2) first responders, ambulance attendants, or emergency medical technicians who are transporting an illegal immigrant pursuant to law (SB 1070, 5; HB 2162, 6).

Arrests Without a Warrant

The legislation adds to the reasons upon which a peace officer may arrest a person without a warrant. It provides that a peace officer may do so if he or she has probable cause to believe that the person has committed a public offense that makes the person removable from the United States (SB 1070, 6).

Employer Sanctions and Entrapment

Verification of Employee's Immigration Status. Arizona law requires every employer, after hiring an employee, to verify the employee's employment eligibility through an e-verify program. The legislation provides that the employer must keep a record of the verification for the longer of (1) the duration of the employee's employment or (2) three years (SB 1070, 9).

Entrapment as Affirmative Defense for Employers. The legislation provides that for the existing prohibition on employers knowingly or intentionally employing unauthorized immigrants, it is an affirmative defense if the employer was entrapped (SB 1070, 7, 8).

Immobilization or Impoundment of Vehicles

Under the legislation, a peace officer must cause the removal of and either immobilize or impound a vehicle if the officer determines that it is used by someone to:

1. transport or attempt to transport an illegal immigrant in Arizona to further an illegal immigrant's illegal presence in the United States in violation of a criminal offense when the person knows or recklessly disregards the fact that the illegal immigrant has come to, entered, or remains in the United States in violation of law; or

2. conceal, harbor, shield from detection, or attempt to do so, an illegal immigrant in Arizona in a vehicle if the person knows or recklessly disregards the fact that the illegal immigrant has come to, entered or remains in the United States as a violation of law (SB 1070, 10).

Severability, Implementation, and Construction

The legislation provides that:

1. any provisions held invalid are severable from the rest;

2. any immigration terms must be construed to have the meaning given them under federal immigration law;

3. it must be implemented in a manner consistent with federal laws regarding immigration, protecting all persons' civil rights, and respecting the privileges and immunities of United States citizens; and

4. it does not implement or establish the federal REAL ID Act of 2005 (SB 1070, 12).

PROVISIONS ADDED BY ARIZONA HB 2162

Joint Border Security Advisory Committee

HB 2162 established this committee to (1) take testimony and other evidence regarding the international border with Mexico; (2) analyze border crossing statistics and related crime statistics; and (3) make recommendations designed to increase border security and other recommendations deemed essential by the committee (HB 2162, 7).

Other Provisions of HB 2162

HB 2162 also:

1. provides for court costs and reasonable attorney's fees to any person or agency that prevails on the merits in a proceeding brought to remedy violations of law regarding documentation requirements for public benefit eligibility (HB 2162, 1,2) and

2. provides that for challenges to immigration legislation brought by December 31, 2010, (a) the attorney general must act at the governor's discretion and (b) the governor may direct counsel other than the attorney general to appear on the state's behalf ( 8).

IMMIGRATION LEGISLATION IN OTHER STATES

According to NCSL, the number of introduced and enacted state laws related to immigration increased sharply from 2006 to 2007 and was fairly steady from 2007 to 2009, as documented in Table 1 below.

Table 1: State Immigration Legislation, 2006-2009

Year

Bills Introduced

Laws Enacted

Resolutions Adopted

2006

570

84

12

2007

1,562

240

50

2008

1,305

206

64

2009

More than 1,500

222

131

Source: NCSL Immigrant Policy Project, 2010 Immigration-Related Bills and Resolutions in the States, April 27, 2010

Politicians in several states (including Kansas, Michigan, Oklahoma, Pennsylvania, South Carolina, Texas, and others) have proposed adopting provisions modeled after Arizona's recent legislation. However, we cannot find any states that have enacted legislation similar to Arizona's.

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