Introduced Version
Senate Bill 41 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 41
(By Senator Barnes)
____________
[Introduced February 13, 2013; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §61-14-1, §61-14-2,
§61-14-3, §61-14-4, §61-14-5, §61-14-6, §61-14-7, §61-14-8,
§61-14-9 and §61-14-10, all relating to creating the Support
our Law Enforcement and Safe Neighborhoods Act; defining
terms; requiring cooperation among officials and agencies;
permitting lawful actions; establishing enforcement
procedures; requiring aliens to carry alien registration
documents; making it illegal to stop to pick up passengers for
work; making it illegal to transport, move, conceal, harbor or
shield unauthorized aliens; making it illegal to knowingly or
intentionally employ unauthorized aliens; making it illegal to
file false and frivolous complaints; creating the Intelligence
Team Enforcement Mission Fund; setting forth civil and criminal penalties; and establishing a severability provision.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §61-14-1, §61-14-2,
§61-14-3, §61-14-4, §61-14-5, §61-14-6, §61-14-7, §61-14-8, §61-14-
9 and §61-14-10, all to read as follows:
ARTICLE 14. SUPPORT OUR LAW ENFORCEMENT AND SAFE NEIGHBORHOOD ACT.
§61-14-1. Short title.
This article may be cited as the "Support Our Law Enforcement
and Safe Neighborhoods Act".
§61-14-2. Definitions.
For the purposes of this article:
(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 U.S.C. §1324a(h)(3).
§61-14-3. 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 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 U.S.C. §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 by
the United States or West Virginia 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 West Virginia driver license;
(2) A valid West Virginia nonoperating identification card;
(3) A valid tribal enrollment card or other form of tribal
identification; or
(4) If the entity requires proof of legal presence in the
United States before issuance, any valid 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; or
(2) The United States immigration and customs enforcement or
the United States customs and border protection pursuant to 8
U.S.C. §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;
and
(4) Pursuant to 8 U.S.C. §§1373 and 1644.
(g) A person who is a legal resident of this state may bring
an action in 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
U.S.C. §§1373 and 1644, 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 $500 and not more than $5,000 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 Immigration Intelligence Team
Enforcement Mission Fund established by section nine of this
article.
(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. END_STATUTE
§61-14-4. Willful failure to complete or carry an alien
registration document; 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 U.S.C.
§§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; or
(2) The United States immigration and customs enforcement or
the United States customs and border protection pursuant to 8
U.S.C. §1373(c);
(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 the enforcement of
this section except to the extent permitted by the United States or
West Virginia Constitution.
(d) 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.
(e) In addition to any other penalty prescribed by law, the
court shall order the person to pay confinement costs.
(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) Any person who violates this section is guilty of a misdemeanor and, upon conviction, shall, for each offense, be fined
not less than $250 nor more $1,000, or confined in jail for twenty
days, or both fined and confined, in the discretion of the court,
and for each subsequent conviction be fined not less than $500 nor
more than $2,500, or confined in jail for thirty days, or both
fined and confined.
§61-14-5. 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 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 the enforcement of
this section except to the extent permitted by the United States or
West Virginia Constitution.
(e) 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; or
(2) The United States immigration and customs enforcement or
the United States customs and border protection pursuant to 8
U.S.C. §1373(c).
(f) Any person who violates this section is guilty of a
misdemeanor and, upon conviction, shall, for each offense, be fined
not less than $250 nor more than $1,000.
§61-14-6. 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 impoundment,
immobilization or other remedy considered necessary.
(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 the enforcement of
this section except to the extent permitted by the United States or
West Virginia Constitution.
(d) 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; or
(2) The United States immigration and customs enforcement or
the United States customs and border protection pursuant to 8
U.S.C. §1373(c).
(e) 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 article four-c, chapter
sixteen of this code.
(f) Any person who violates any of this section is guilty of
a misdemeanor and, upon conviction, shall be fined not less than
$1,000 nor more than $10,000, except that a violation of this
section that involves ten or more illegal aliens is a felony and,
the person shall be fined not less than $1,000 nor more than
$10,000 for each alien who is involved.
§61-14-7. 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
prosecuting 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 prosecuting 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 prosecuting attorney
shall not investigate complaints that are based solely on race,
color or national origin. A complaint that is submitted to a county
prosecuting attorney shall be submitted to the county prosecuting
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 prosecuting attorney shall verify the work authorization of
the alleged unauthorized alien with the federal government pursuant
to 8 U.S.C. §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 U.S.C. §1373(c). A person
who knowingly files a false and frivolous complaint under this
subsection is guilty of a misdemeanor and, upon conviction, shall,
for each offense, be fined not less than $250 nor more than $1,000.
(c) If, after an investigation, the Attorney General or county
prosecuting attorney determines that the complaint is not false and
frivolous:
(1) The Attorney General or county prosecuting attorney shall
notify the United States immigration and customs enforcement of the
unauthorized alien;
(2) The Attorney General or county prosecuting attorney shall
notify the local law-enforcement agency of the unauthorized alien;
and
(3) The Attorney General shall notify the appropriate county prosecuting 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
prosecuting attorney in the county where the unauthorized alien
employee is or was employed by the employer. The county prosecuting
attorney shall not bring an action against any employer for any
violation of subsection (a) of this section that occurs before July
1, 2012. 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 subsection (a), section eight of this article.
(e) For any action in 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 subdivision (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 eight of this article with the county prosecuting 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 prosecuting 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
prosecuting 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 prosecuting 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; and
(D) May order the appropriate agencies to suspend all licenses
described in paragraph (C) of this subdivision 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; and
(vii) Any other factors the court deems appropriate.
(2) For a second violation, as described in subdivision (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 subsection (f), section eight of
this article for that employer's business location; and
(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 subsection (f), section eight of
this article 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 U.S.C. §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 U.S.C. §1373(c).
(i)For the purposes of this section, proof of verifying the
employment authorization of an employee through an 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 U.S.C. §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 U.S.C. §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; and
(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
§61-14-8. Intentionally employing 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 prosecuting
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 prosecuting 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 prosecuting attorney shall not investigate
complaints that are based solely on race, color or national origin.
A complaint that is submitted to a county prosecuting attorney
shall be submitted to the county prosecuting 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 prosecuting attorney
shall verify the work authorization of the alleged unauthorized
alien with the federal government pursuant to 8 U.S.C. §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 U.S.C. §1373(c). A person who knowingly files a false and frivolous complaint under this subsection is guilty of a
misdemeanor and, upon conviction, shall, for each offense, be fined
not less than $250 nor more than $1,000.
(c) If, after an investigation, the Attorney General or county
prosecuting attorney determines that the complaint is not false and
frivolous:
(1) The Attorney General or county prosecuting attorney shall
notify the United States immigration and customs enforcement of the
unauthorized alien;
(2) The Attorney General or county prosecuting attorney shall
notify the local law-enforcement agency of the unauthorized alien;
and
(3) The Attorney General shall notify the appropriate county
prosecuting 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
prosecuting attorney in the county where the unauthorized alien
employee is or was employed by the employer. The county prosecuting
attorney shall not bring an action against any employer for any
violation of subsection (a) of this section that occurs before July
1, 2012. 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 subsection (a), section seven of this article.
(e) For any action in 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 subdivision (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 eight of this article with the county prosecuting attorney
of each new employee who is hired by the employer at the business
location where the unauthorized alien performed work; and
(C) Order the appropriate agencies to suspend all licenses
described in paragraph (D) of this subdivision 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; and
(vii) Any other factors the court deems appropriate.
(D) Order the employer to file a signed sworn affidavit with
the county prosecuting 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
prosecuting 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
prosecuting 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 subdivision (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 subsection (f), section seven of
this article for that employer's business location; and
(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 subsection (f), section seven of
this article 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 U.S.C. §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 U.S.C. §1373(c).
(i) For the purposes of this section, proof of verifying the
employment authorization of an employee through an 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 U.S.C. §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 U.S.C. §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; and
(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.
§61-14-9. Immigration Intelligence Team Enforcement Mission Fund.
The Immigration Intelligence Team Enforcement Mission Fund is
established consisting of moneys deposited pursuant to section
three of this article and moneys appropriated by the Legislature.
Moneys in the fund are subject to legislative appropriation and
shall be used for immigration enforcement and for regional jail
reimbursement costs relating to illegal immigration.
§61-14-10. Severability; implementation; construction
.
(a) If a provision of this article 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 article are severable.
(b) The terms of this article regarding immigration shall be
construed to have the meanings given to them under federal
immigration law.
(c) This article 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.
NOTE: This bill creates the "Support Our Law Enforcement and
Safe Neighborhoods Act." The bill defining terms, requires
cooperation among officials and agencies and permits certain lawful
actions. The bill requires aliens to carry alien registration
documents and establishes enforcement procedures. The bill also
makes it illegal to stop and pick up passengers for work, to
transport, move, conceal, harbor or shielding of unauthorized
aliens. Further, the bill makes it illegal to knowingly or
intentionally employ unauthorized aliens and to make false or
frivolous complaints. The bill creates the Intelligence Team
Enforcement Mission Fund. Also, the bill sets forth penalties and
provides a severability provision.
This article is new; therefore, strike-throughs and
underscoring have been omitted.