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WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
Senate Bill 777
By Senators Tarr, Deeds, and Stuart
[Introduced February 14, 2024; referred
to the Committee on the Judiciary]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §61-17-1, §61-17-2, §61-17-3, §61-17-4, §61-17-5, §61-17-6, §61-17-7, §61-17-8, and §61-17-9, all relating to prohibitions on the illegal entry into, or illegal presence in, this state by a person who is an alien; providing for enforcement of prohibitions and certain related orders, including immunity from liability and indemnification for enforcement actions; authorizing, or requiring under certain circumstances, the removal of persons who violate those prohibitions; and creating criminal offenses.
Be it enacted by the Legislature of West Virginia:
In this article:
"Alien" means any person not a citizen of the United States.
"Port of entry" means a port of entry in the United States as designated by 19 C.F.R. Part 101, including Charleston, West Virginia.
(a) A person who is an alien commits an offense if the person enters this state directly from a foreign nation at any location other than a lawful port of entry.
(b) An offense under this section is a misdemeanor, except that the offense is a felony if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this section. A person convicted of the misdemeanor offense under this section shall be fined not less than $50 nor more than $500, or confined in jail not more than 90 days, or both fined and confined. A person convicted of the felony offense under this section shall be fined not more than $5,000, imprisoned in a state correctional facility not less than one nor more than three years, or both fined and imprisoned.
(c) It is an affirmative defense to prosecution under this section that:
(1) The federal government has granted the defendant:
(A) Lawful presence in the United States; or
(B) Asylum under 8 U.S.C. Section 1158;
(2) The defendant ’s conduct does not constitute a violation of 8 U.S.C. Section 1325(a); or
(3) The defendant was approved for benefits under the federal Deferred Action for Childhood Arrivals program between June 15, 2012, and July 16, 2021.
(a) A person who is an alien commits an offense if the person enters or is at any time found in this state after the person:
(1) Has been denied admission to or excluded, deported, or removed from the United States; or
(2) Has departed from the United States while an order of exclusion, deportation, or removal is outstanding.
(b) An offense under this section is a misdemeanor, except that the offense is:
(1) A felony if:
(A) The defendant’s removal was subsequent to a conviction for commission of two or more misdemeanors involving drugs, or crimes against a person, or both offenses;
(B) The defendant was excluded pursuant to 8 U.S.C. Section 1225(c) because the defendant was excludable under 8 U.S.C. Section 1182(a)(3)(B); or
(C) The defendant was removed pursuant to the provisions of 8 U.S.C. Chapter 12, Subchapter V.
(2) The defendant was removed subsequent to a conviction for the commission of a felony.
(c) For purposes of this section, "removal" includes an order or any other agreement in which an alien stipulates to removal pursuant to a criminal proceeding under either federal or state law. A person convicted of the misdemeanor offense under this section shall be fined not less than $50 nor more than $500, confined in jail not more than 90 days, or both fined and confined. A person convicted of the felony offense under this section shall be fined not more than $5,000, or imprisoned in a state correctional facility for not less than one nor more than three years, or both fined and imprisoned.
A magistrate, during a person’s appearance, or the judge in the person’s case at any time after that appearance may, in lieu of continuing the prosecution of or entering an adjudication regarding an offense contained within this article, dismiss the charge pending against the person and issue a written order that discharges the person and requires the person to return to the foreign nation from which the person entered or attempted to enter, if:
(a) The person agrees to the order;
(b) The person has not previously been convicted of an offense under this article, or previously obtained a dismissal and discharge under this article; and
(c) The person is not charged with another offense that, if convicted, would constitute a felony; and
(d) Before the issuance of the order dismissing the charge and discharging the person, the arresting law enforcement agency:
(1) Collects all available identifying information of the person, which must include taking fingerprints from the person and using other applicable photographic and biometric measures to identify the person; and
(2) Cross-references the collected information with:
(A) All relevant local, state, and federal criminal databases; and
(B) Federal lists or classifications used to identify a person as a threat or potential threat to national security.
(3) An order issued under this article shall include:
(A) The manner of transportation of the person to a port of entry; and
(B) The law enforcement officer or state agency responsible for monitoring compliance with the order.
A court may not abate the prosecution of an offense on the basis that a federal determination regarding the immigration status of the defendant is pending or will be initiated.
(a) A person who is an alien commits an offense if:
(1) The person has been charged with or convicted of an offense under this code;
(2) A magistrate or judge, as applicable, has issued an order for the person to return to the foreign nation from which the person entered or attempted to enter; and
(3) The person refuses to comply with the order.
(b) An offense under this section is a felony, and, upon conviction, shall be fined no more than $5,000, or imprisoned in a state correctional facility of not less than one nor more than three years, or both fined and imprisoned.
Notwithstanding any other provision of this article, a defendant is not eligible for community supervision, including deferred adjudication community supervision, under this chapter if the defendant is charged with or convicted of an offense under the West Virginia Code.
Notwithstanding any other law, a law enforcement officer may not arrest or detain a person for purposes of enforcing any provision of this article, if the person is on the premises or grounds of:
(1) A public or private primary or secondary school provided that the person is on the premises for educational purposes;
(2) A church, synagogue, or other established place of religious worship;
(3) A health care facility as defined in §61-39-3 of this code.
(4) A facility that provides forensic medical examinations to sexual assault survivors, provided that the person is on the premises or grounds of the facility for purposes of obtaining a forensic medical examination and treatment.
(a) Damages. – In this chapter, "damages" includes any and all damages, fines, fees, penalties, court costs, attorney ’s fees, or other assessments.
(b) Civil immunity of local government officials, employees, and contractors. – A local government official, employee, or contractor is immune from liability for damages arising from a cause of action under state law resulting from an action taken by the official, employee, or contractor to enforce this article, during the course and scope of the official’s, employee’s, or contractor’s office, employment, or contractual performance for or service on behalf of the local government.
(c) Civil immunity does not apply if the court or jury determines that the local government official, employee, or contractor acted in bad faith, with conscious indifference, or with recklessness.
(d) Other laws not affected. – This article does not limit or otherwise affect a defense, immunity, or jurisdictional bar available to the state or a local government or an official, employee, or contractor of the state or a local government recognized elsewhere by West Virginia law.
NOTE: The purpose of this bill is to create prohibitions on the illegal entry into or illegal presence in this state by a person who is an alien. The bill provides for the enforcement of those prohibitions and certain related orders, including immunity from liability and indemnification for enforcement actions. Finally, the bill authorizes and requires under certain circumstances the removal of persons who violate those prohibitions; and creating criminal offenses.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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