Bill Text: AZ HB2655 | 2020 | Fifty-fourth Legislature 2nd Regular | Introduced

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Bill Title: Enforcement; immigration laws; employer sanctions

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2020-05-19 - Assigned to House RULES Committee [HB2655 Detail]

Download: Arizona-2020-HB2655-Introduced.html

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REFERENCE TITLE: enforcement; immigration laws; employer sanctions

 

 

 

 

State of Arizona

House of Representatives

Fifty-fourth Legislature

Second Regular Session

2020

 

 

 

HB 2655

 

Introduced by

Representative Thorpe

 

 

AN ACT

 

amending sections 11‑1051 and 23‑212 Arizona Revised Statutes; repealing section 23‑212.01, Arizona Revised Statutes; amending sections 23‑214 and 23-215, Arizona Revised Statutes; relating to immigration enforcement.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 11-1051, Arizona Revised Statutes, is amended to read:

START_STATUTE11-1051.  Cooperation and assistance in enforcement of immigration laws; indemnification; violation; classification

A.  No An official or agency of this state or a county, city, town or other political subdivision of this state may not limit or restrict the enforcement of federal immigration laws to less than the full extent permitted allowed by federal law.

B.  For any lawful stop, detention or arrest 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 in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and 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 consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted allowed 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.  In the implementation 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).

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, 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.

G.  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.

H.  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 that limits or restricts the enforcement of federal immigration laws, including 8 United States Code sections 1373 and 1644, to less than the full extent permitted allowed 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 five hundred dollars at least $500 and not more than five thousand dollars $5,000 for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.

I.  A court shall collect the civil penalty prescribed in subsection H 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.

J.  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.  The court shall expedite an action filed pursuant to this section, including assigning all hearings at the earliest practicable date.

K.  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.

L.  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.

M.  An official of this state or a county, city, town or other political subdivision of this state who intentionally or knowingly violates this section is guilty of a class 1 misdemeanor, shall be removed from office by judgment of the court and shall pay a fine of at least $2,500. END_STATUTE

Sec. 2.  Section 23-212, Arizona Revised Statutes, is amended to read:

START_STATUTE23-212.  Intentionally or knowingly employing unauthorized aliens; prohibition; false and frivolous complaints; license suspension and revocation; affirmative defense; violation; classification

A.  An employer shall not intentionally or 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 intentionally or 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 does not 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)  1.  Shall order the employer to terminate the employment of all unauthorized aliens.

(b)  2.  Shall order the employer to be subject to a three year probationary period for the any other business location where the unauthorized alien performed work for the employer.  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)  3.  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 paragraph 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 paragraph 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 paragraph, the licenses that are subject to suspension under this subdivision paragraph are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work and that are not revoked pursuant to paragraph 4 of this subsection.  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 paragraph 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

4.  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 intentionally or 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 intentionally or 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. END_STATUTE

Sec. 3.  Repeal

Section 23-212.01, Arizona Revised Statutes, is repealed.

Sec. 4.  Section 23-214, Arizona Revised Statutes, is amended to read:

START_STATUTE23-214.  Verification of employment eligibility; e‑verify program; economic development incentives; list of registered employers; violation; classification

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.

D.  A person who violates this section is guilty of a class 1 misdemeanor and shall pay a fine of at least $2,500. END_STATUTE

Sec. 5.  Section 23-215, Arizona Revised Statutes, is amended to read:

START_STATUTE23-215.  Voluntary employer enhanced compliance program; program termination

A.  The attorney general shall establish the voluntary employer enhanced compliance program.  The program is voluntary and an employer is not required to enroll in the program.

B.  An employer that is on probation under section 23‑212 or 23‑212.01 may not enroll in the voluntary employer enhanced compliance program.  A court shall not consider nonenrollment in the voluntary employer enhanced compliance program as a factor when determining whether to suspend or revoke a license under section 23‑212 or 23‑212.01.

C.  To enroll in the voluntary employer enhanced compliance program, an employer shall submit a signed sworn affidavit to the attorney general.  The affidavit shall state that the employer agrees to perform all of the following actions in good faith:

1.  After hiring an employee, the employer shall verify the employment eligibility of the employee through the e-verify program.

2.  To ensure the accuracy of reporting wages to the social security administration, the employer shall verify the accuracy of social security numbers through the social security number verification service for any employee who is not verified through the e-verify program.  Within thirty days after enrolling in the voluntary employer enhanced compliance program, the employer shall submit the necessary information to the social security number verification service, including the full name, the social security number, the date of birth and the gender of each employee.  On receipt of a failed verification result, the employer shall notify the employee of the date on which the employer received the failed result and instruct the employee to resolve the discrepancy with the social security administration within ninety days after that date.  The employer and employee shall resolve any failed result within ninety days after the date on which the employer received the failed result.  If the failed result is not resolved within the ninety-day period but the employer and employee are continuing to actively and consistently work toward resolving the failed result with the social security administration, the ninety‑day period does not apply as long as the employer and employee have documented proof of these ongoing efforts to resolve the failed result in good faith and have provided the documented proof to the attorney general.  The employer shall verify the accuracy of the social security numbers and resolve any failed verification results in a consistent manner for all employees.

3.  In response to a written request by the attorney general or county attorney stating the name of an employee for whom a complaint has been received under section 23‑212 or 23‑212.01, the employer shall provide the attorney general or county attorney the documents indicating that the employee was verified through the e-verify program or that the accuracy of the employee's wage report was verified through the social security number verification service under this section.

D.  An employer that is enrolled in the voluntary employer enhanced compliance program shall not be in violation of section 23‑212, subsection A or section 23‑212.01, subsection A regarding an employee named in a complaint under section 23‑212 or 23‑212.01 if the employer has completed both of the following:

1.  In good faith verified the employment eligibility of the employee named in the complaint through the e-verify program or in good faith verified the accuracy of the social security number of the employee named in the complaint through the social security number verification system as required by subsection C, paragraphs 1 and 2 of this section.

2.  Provided the attorney general or county attorney with the documents, as required by subsection C, paragraph 3 of this section, indicating that the employer verified the employee named in the complaint.

E.  The attorney general shall maintain a list of employers enrolled in the voluntary employer enhanced compliance program and make the list available on the attorney general's website.

F.  The attorney general shall develop a form of recognition that an employer may display to the general public for enrolling in the voluntary employer enhanced compliance program.

G.  If an employer does not fully comply with this section, the attorney general shall terminate the employer's enrollment in the voluntary employer enhanced compliance program.  At any time, an employer may voluntarily withdraw from the voluntary employer enhanced compliance program by notifying the attorney general.  Beginning on the date of termination or withdrawal, subsection D of this section no longer applies to the employer and the employer shall immediately remove any form of recognition from public display that is authorized under this section.

H.  The program established by this section ends on July 1, 2018 pursuant to section 41‑3102. END_STATUTE