Here is the full text of the immigration law that people are arguing about right now. It's not edited, just copied and pasted...until they shut it down.Senate Engrossed
State of Arizona
Senate
Forty-ninth Legislature
Second Regular Session
2010
SENATE BILL 1070
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 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.
(TEXT OF BILL BEGINS ON NEXT PAGE)
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Be it enacted by the Legislature of the State of Arizona:
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. Cooperationandassistanceinenforcementof
immigration laws; indemnification
A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR
OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR
RESTRICTS 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 AGENCY
OF THIS STATE OR 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. THE
PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT
PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
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 ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN SHALL BE
TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION.
D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY
SECURELY TRANSPORT AN ALIEN WHO 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.
E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON
IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED
ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.
F. 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 OF
ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE
OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:
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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. CONFIRMING THE IDENTITY OF ANY PERSON WHO IS DETAINED.
4. 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.
G. A PERSON 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 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 ANY OF THE FOLLOWING:
1. THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND
ATTORNEY FEES.
2. 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
AND REMIT THE CIVIL PENALTY TO THE DEPARTMENT OF PUBLIC SAFETY FOR DEPOSIT IN
THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND
ESTABLISHED BY SECTION 41-1724.
I. 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 TO WHICH THE OFFICER MAY BE A
PARTY BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW
ENFORCEMENT AGENCY, EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS
ADJUDGED TO HAVE ACTED IN BAD FAITH.
J. 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. 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) OR 1306(a).
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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).
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.
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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, 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.
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.
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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;unlawfulapplication,solicitationor
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
orshieldingofunlawfulaliens;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.
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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.
Sec. 6. Section 23-212, Arizona Revised Statutes, is amended to read:
23-212. Knowingly employing unauthorized aliens; prohibition;
falseandfrivolouscomplaints;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.
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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
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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
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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 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.
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Sec. 7.
read:
Section 23-212.01, Arizona Revised Statutes, is amended to
Intentionallyemployingunauthorizedaliens;
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.
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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
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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
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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 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.
Sec. 8. 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.
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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. 9. 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. 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.
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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
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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. 10. 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. 11. 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.
Sec. 12. Short title
This act may be cited as the "Support Our Law Enforcement and Safe
Neighborhoods Act".
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