2012 -- H 7313

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LC00587

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - ENFORCEMENT OF

IMMIGRATION LAWS

     Introduced By: Representatives Palumbo, Trillo, Nunes, Edwards, and Chippendale

     Date Introduced: February 01, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

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GOVERNMENT" is hereby amended by adding thereto the following chapter:

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     CHAPTER 28.10

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IN SUPPORT OF OUR LAW ENFORCEMENT AND SAFE NEIGHBORHOODS ACT

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     42-28.10-1. Short title. – This chapter shall be known and may be cited as “In Support of

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Our Law Enforcement and Safe Neighborhoods Act.”

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     42-28.10-2. Legislative findings. – It is hereby found and declared by the general

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assembly that:

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     (1) There is a compelling interest in the cooperative enforcement of federal immigration

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laws throughout all of Rhode Island.

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     (2) There is a compelling interest in reducing the number of persons unlawfully present in

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the state by enforcing the public policy of all state and local government agencies.

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     (3) The provisions of this chapter are intended to work together to discourage and deter

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the unlawful entry and presence of aliens and economic activity by persons unlawfully present in

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the United States.

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     42-28.10-3. Cooperation and assistance in enforcement of immigration laws:

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indemnification. – (a) No official or agency of this state, city, town or other political subdivision

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of this state may limit or restrict the enforcement of federal immigration laws to less than the full

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extent permitted by federal law.

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     (b) For any lawful contact made by a law enforcement official or a law enforcement

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agency of this state or a law enforcement official or a law enforcement agency of a city, town or

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other political subdivision of this state where reasonable suspicion exists that the person is an

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alien who is unlawfully present in the United States, a reasonable attempt shall be made, when

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practicable, to determine the immigration status of the person, except if the determination may

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hinder or obstruct an investigation. Any person who is arrested shall have the person’s

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immigration status determined before the person is released. The person’s immigration status

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shall be verified with the federal government pursuant to 8 United States code section 1373(c). A

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law enforcement official or agency of this state or a city, town or other political subdivision of

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this state may not solely consider race, color, or national origin in implementing the requirements

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of this subsection except to the extent permitted by the United States or Rhode Island

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constitution. A person is presumed not to be an alien who is unlawfully present in the United

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States, if the person provides to the law enforcement officer or agency any of the following:

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     (1) A valid Rhode Island driver license.

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     (2) A valid Rhode Island non-operating identification license.

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     (3) A valid tribal enrollment card or other form of tribal identification.

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     (4) If the entity requires proof of legal presence in the United States before issuance, any

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valid United States federal, state or local government issued identification.

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     (c) If an alien who is unlawfully present in the United States is convicted of a violation of

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state or local law, on discharge from imprisonment, or on the assessment of any monetary

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obligation that is imposed, the United States immigration and customs enforcement or the United

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States customs and border protection shall be immediately notified.

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     (d) Notwithstanding any provision of the general or public laws to the contrary, a law

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enforcement agency may securely transport an alien who the agency has received verification is

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unlawfully present in the United States and who is in the agency’s custody to a federal facility in

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this state or to any other point of transfer into federal custody that is outside the jurisdiction of the

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law enforcement agency. A law enforcement agency shall obtain judicial authorization before

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securely transporting an alien who is unlawfully present in the United States to a point of transfer

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that is outside of this state.

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     (e) Except as provided in federal law, officials or agencies of this state and counties,

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cities, towns and other political subdivisions of this state may not be prohibited or in any way be

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restricted from sending, receiving or maintaining information relating to the immigration status,

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lawful or unlawful, of any individual or exchanging that information with any other federal, state

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or local government entity for the following official purposes:

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     (1) Determining eligibility for any public benefit, service or license provided by any

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federal, state, local or other political subdivision of this state.

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     (2) Verifying any claim of residence or domicile if determination of residence or

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domicile is required under the laws of this state or a judicial order issued pursuant to a civil or

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criminal proceeding in this state.

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     (3) If the person is an alien, determining whether the person is in compliance with the

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federal registration laws prescribed by title II, chapter 7 of the federal immigration and nationality

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act.

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     (4) Pursuant to 8 United States code section 1373 and 8 United States code section 1644.

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     (f) A person who is a legal resident of this state may bring an action in superior court to

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challenge any official or agency of this state or a city, town or other political subdivision of this

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state that adopts or implements a policy or practice that limits or restricts the enforcement of

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federal immigration laws to less than the full extent permitted by federal law. If there is a judicial

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finding that an entity has violated this section, the court shall order that the entity pay a civil

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penalty of not less than one thousand dollars ($1,000) and not more than five thousand dollars

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($5,000) for each day that the policy has remained in effect after the filing of an action pursuant

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to this subsection.

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     (g) A court shall collect the civil penalty prescribed in subsection (f) of this section and

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remit the civil penalty to the state treasurer for deposit in the gang and immigration intelligence

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team enforcement mission fund established by section 42-28.10-13.

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     (h) The court may award court costs and reasonable attorney fees to any person or any

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official or agency of this state or a city, town or other political subdivision of this state that

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prevails by adjudication on the merits in a proceeding brought pursuant to this section.

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     (i) Except in relation to matters in which the officer is adjudged to have acted in bad

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faith, a law enforcement officer is indemnified by the law enforcement officer’s agency against

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reasonable costs and expenses, including attorney fees, incurred by the officer in connection with

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any action, suit or proceeding brought pursuant to this section in which the officer may be a

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defendant by reason of the officer being or having been a member of the law enforcement agency.

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     (j) This section shall be implemented in a manner consistent with federal laws regulating

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immigration, protecting the civil rights of all persons and respecting the privileges and

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immunities of United States citizens.

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     42-28.10-4. Willful failure to complete or carry alien registration document;

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Assessment; Exception; Authenticated records; Classification. – (a) In addition to any

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violation of federal law, a person is guilty of willful failure to complete or carry an alien

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registration document if the person is in violation of 8 United States code section 1304(e) or

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1306(a).

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     (b) In the enforcement of this section, an alien’s immigration status may be determined

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by:

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     (1) A law enforcement officer who is authorized by the federal government to verify or

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ascertain an alien’s immigration status.

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     (2) The United States immigration and customs enforcement or the United States customs

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and border protection pursuant to 8 United States code section 1373(c).

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     (c) A person who is sentenced pursuant to this section is not eligible for suspension of

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sentence, probation, pardon, commutation of sentence, or release from confinement on any basis

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except as authorized by this chapter until the sentence imposed by the court has been served or

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the person is eligible for release.

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     (d) In addition to any other penalty prescribed by law, the court shall order the person to

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pay all costs and an additional assessment in the following amounts:

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     (1) At least five hundred dollars ($500) for a first violation.

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     (2) Twice the amount specified in subdivision (1) of this subsection if the person was

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previously subject to an assessment pursuant to this subsection.

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     (e) A court shall collect the assessments prescribed in subsection (d) of this section and

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remit the assessments to the department of public safety, which shall establish a special

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subaccount for the monies in the account established for the gang and immigration intelligence

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team enforcement mission appropriation. Monies in the special account are subject to legislative

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appropriation for distribution for gang and immigration enforcement and for imprisonment

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reimbursement costs relating to illegal immigration.

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     (f) This section does not apply to a person who maintains authorization from the federal

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government to remain in the United States.

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     (g) Any record that relates to the immigration status of a person is admissible in any court

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without further foundation or testimony from a custodian of records if the record is certified as

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authentic by the government agency that is responsible for maintaining the record.

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     (h) A violation of this section is a misdemeanor, except that a violation of this section is:

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     (1) A felony if the person violates this section while in possession of any of the

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following:

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     (a) A controlled substance defined in section 21-28.1 et seq.

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     (b) Precursor chemicals that are used in the manufacturing of methamphetamine.

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     (c) A deadly weapon or a dangerous instrument, as defined in section 11-5-1 et seq.

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     (d) Property that is used for the purpose of committing an act of terrorism.

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     (2) A felony if the person either:

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     (i) Is convicted of a second or subsequent violation of this section.

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     (ii) Within sixty (60) months before the violation, has been removed from the United

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States pursuant to 8 United States code section 1229a or has accepted a voluntary removal from

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the United States pursuant to 8 United States code section 1229c.

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     42-28.10-5. Smuggling; Classification; Definitions. – (a) It is unlawful for a person to

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intentionally engage in the smuggling of human beings for profit or commercial purpose.

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     (b) A violation of this section is a felony:

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     (1) If the human being who is smuggled is under eighteen (18) years of age and is not

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accompanied by a family member over eighteen (18) years of age or the offense involved the use

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of a deadly weapon or dangerous instrument.

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     (2) If the offense involves the use or threatened use of deadly physical force and the

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person is not eligible for suspension of sentence, probation, pardon or release from confinement

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on any other basis until the sentence imposed by the court is served, the person is eligible for

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release or the sentence is commuted.

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     (c) Notwithstanding any other law, in the enforcement of this section, a peace officer may

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lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion

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to believe the person is in violation of any civil traffic law.

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     (d) For the purposes of this section:

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     (1) “Family member” means the person’s parent, grandparent, sibling or any other person

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who is related to the person by consanguinity or affinity to the second degree.

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     (2) “Procurement of transportation” means any participation in or facilitation of

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transportation and includes:

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     (i) Providing services that facilitate transportation including travel arrangement services

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or money transmission services.

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     (ii) Providing property that facilitates transportation, including a weapon, a vehicle or

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other means of transportation or false identification, or selling, leasing, renting or otherwise

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making available a drop house as defined in this chapter.

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     (3) “Smuggling of human beings” means the transportation, procurement of

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transportation or use of property or real property by a person or an entity that knows or has reason

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to know that the person or persons transported or to be transported are not United States citizens,

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permanent resident aliens or persons otherwise lawfully in this state or have attempted to enter,

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entered or remained in the United States in violation of law.

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     42-28.10-6. Unlawful stopping to hire and pick up passengers for work; Unlawful

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application, solicitation or employment; Classification; Definitions. – (a) It is unlawful for an

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occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or

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hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes

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the normal movement of traffic.

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     (b) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway

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or highway in order to be hired by an occupant of the motor vehicle and to be transported to work

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at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

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     (c) It is unlawful for a person who is unlawfully present in the United States and who is

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an unauthorized alien to knowingly apply for work, solicit work in a public place or perform

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work as an employee or independent contractor in this state.

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     (d) A violation of this section is a misdemeanor.

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     (e) For the purposes of this section:

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     (1) “Solicit” means verbal or nonverbal communication by a gesture or a nod that would

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indicate to a reasonable person that a person is willing to be employed.

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     (2) “Unauthorized alien” means an alien who does not have the legal right or

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authorization under federal law to work in the United States as described in 8 United States code

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section 1324a(h)(3).

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     42-28.10-7. Unlawful transporting, moving, concealing, harboring or shielding of

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unlawful aliens; Vehicle impoundment; Exception; Classification. – (a) It is unlawful for a

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person to:

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     (1) Transport or move or attempt to transport or move an alien in this state, in furtherance

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of the illegal presence of the alien in the United States, by any means of transportation if the

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person knows or recklessly disregards the fact that the alien has come to, has entered or remains

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in the United States in violation of law.

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     (2) Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from

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detection in any place in this state, including any building or any means of transportation, if the

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person knows or recklessly disregards the fact that the alien has come to, has entered or remains

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in the United States in violation of law.

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     (3) Encourage or induce an alien to come to or reside in this state if the person knows or

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recklessly disregards the fact that such coming to, entering or residing in this state is, or will be in

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violation of law.

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     (b) A means of transportation that is used in the commission of a violation of this section

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is subject to mandatory vehicle immobilization or impoundment.

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     (c) This section does not apply to a child protective services worker acting in the

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worker’s official capacity or a person who is acting in the capacity of a first responder, an

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ambulance attendant or an emergency medical technician and who is transporting or moving an

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alien in this state.

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     (d) A person who violates this section is guilty of a misdemeanor and is subject to a fine

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of at least one thousand dollars ($1,000) except that a violation of this section that involves ten

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(10) or more illegal aliens is a felony and the person is subject to a fine of at least one thousand

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dollars ($1,000) for each alien who is involved.

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     42-28.10-8. Arrest by officer without warrant. – (a) A peace officer without a warrant,

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may arrest a person if the officer has probable cause to believe:

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     (1) A felony has been committed and probable cause to believe the person to be arrested

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has committed the felony.

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     (2) A misdemeanor has been committed in the officer’s presence and probable cause to

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believe the person to be arrested has committed the offense.

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     (3) The person to be arrested has been involved in a traffic accident and violated the

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provisions of section 31-26-1 et seq., and that such violation occurred prior to or immediately

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following such traffic accident.

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     (4) A misdemeanor or a petty offense has been committed and probable cause to believe

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the person to be arrested under this paragraph is eligible for release as provided in this chapter.

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     (5) The person to be arrested has committed any public offense that makes the person

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removable from the United States.

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     (b) A peace officer may stop and detain a person as is reasonably necessary to investigate

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an actual or suspected violation of any traffic law committed in the officer’s presence and may

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serve a copy of the traffic complaint for any alleged civil or criminal traffic violation. A peace

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officer who serves a copy of the traffic complaint shall do so within a reasonable time of the

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alleged criminal or civil traffic violation.

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     42-28.10-9. Knowingly employing unauthorized aliens; Prohibition; False and

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frivolous complaints; Violation; Classification; License suspension and revocation;

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Affirmative defense. – (a) An employer shall not knowingly employ an unauthorized alien. If, in

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the case when an employer uses a contract, subcontract or other independent contractor

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agreement to obtain the labor of an alien in this state, the employer knowingly contracts with an

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unauthorized alien or with a person who employs or contracts with an unauthorized alien to

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perform the labor, the employer violates this section.

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     (b) The attorney general shall prescribe a complaint form for a person to allege a

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violation of subsection (a) of this section. The complainant shall not be required to list the

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complainant’s social security number on the complaint form or to have the complaint form

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notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly

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knowingly employs an unauthorized alien, the attorney general shall investigate whether the

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employer has violated subsection (a) of this section. If a complaint is received but is not

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submitted on a prescribed complaint form, the attorney general may investigate whether the

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employer has violated subsection (a) of this section. This subsection shall not be construed to

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prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint

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form. The attorney general shall not investigate complaints that are based solely on race, color or

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national origin. Any other local law enforcement agency may assist in investigating a complaint.

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When investigating a complaint, the attorney general shall verify the work authorization of the

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alleged unauthorized alien with the federal government pursuant to 8 United States code section

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1373(c). A state or local official shall not attempt to independently make a final determination on

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whether an alien is authorized to work in the Unites States. An alien’s immigration status or work

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authorization status shall be verified with the federal government pursuant to 8 Unites States code

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section 1373(c). A person who knowingly files a false and/or frivolous complaint under this

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subsection is guilty of a class 3 misdemeanor.

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     (c) If, after an investigation, the attorney general determines that the complaint is not

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false and frivolous:

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     (1) The attorney general shall notify the United States immigration and customs

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enforcement of the unauthorized alien.

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     (2) The attorney general shall notify the local law enforcement agency of the

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unauthorized alien.

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     (d) An action for a violation of subsection (a) of this section shall be brought against the

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employer in the county where the unauthorized alien employee is or was employed by the

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employer. The attorney general shall not bring an action against any employer for any violation of

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subsection (a) of this section that occurs before January 1, 2013. A second violation of this

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section shall be based only on an unauthorized alien who is or was employed by the employer

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after an action has been brought for a violation of subsection 42-28.10-10(a).

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     (e) For any action in superior court under this section, the court shall expedite the action,

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including assigning the hearing at the earliest practicable date.

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     (f) On a finding of a violation of subsection (a) of this section:

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     (1) For a first violation, as described in subdivision (3) of this subsection, the court:

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     (i) Shall order the employer to terminate the employment of all unauthorized aliens.

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     (ii) Shall order the employer to be subject to a three (3) year probationary period for the

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business location where the unauthorized alien performed work. During the probationary period

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the employer shall file quarterly reports with the attorney general of each new employee who is

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hired by the employer at the business location where the unauthorized alien performed work.

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     (iii) Shall order the employer to file a signed sworn affidavit with the attorney general

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within three (3) business days after the order is issued. The affidavit shall state that the employer

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has terminated the employment of all unauthorized aliens in this state and that the employer will

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not intentionally or knowingly employ an unauthorized alien in this state. The court shall order

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the appropriate agencies to suspend all licenses that are held by the employer if the employer fails

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to file a signed sworn affidavit with the attorney general within three (3) business days after the

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order is issued. All licenses that are suspended under this subdivision shall remain suspended

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until the employer files a signed sworn affidavit with the attorney general. Notwithstanding any

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other law, filing of the affidavit the suspended licenses shall be reinstated immediately by the

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appropriate agencies. For the purposes of this subdivision, the licenses that are subject to

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suspension under this subdivision are all licenses that are held by the employer specific to the

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business location where the unauthorized alien performed work. If the employer does not hold a

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license specific to the business location where the unauthorized alien performed work, but a

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license is necessary to operate the employer’s business in general, the licenses that are subject to

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suspension under this subdivision are all licenses that are held by the employer at the employer’s

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primary place of business. On receipt of the court’s order and notwithstanding any other law, the

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appropriate agencies shall suspend the licenses according to the court’s order. The court shall

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send a copy of the court’s order to the attorney general and the attorney general shall maintain the

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copy pursuant to subsection (g) of this section.

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     (iv) May order the appropriate agencies to suspend all licenses described in subdivision

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(iii) of this paragraph that are held by the employer for not to exceed ten (10) business days. The

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court shall base its decision to suspend under this subdivision on any evidence or information

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submitted to it during the action for a violation of this subsection and shall consider the following

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factors, if relevant:

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     (A) The number of unauthorized aliens employed by the employer.

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     (B) Any prior misconduct by the employer.

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     (C) The degree of harm resulting from the violation.

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     (D) Whether the employer made good faith efforts to comply with any applicable

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requirements.

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     (E) The duration of the violation.

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     (F) The role of the directors, officers or principals of the employer in the violation.

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     (H) Any other factors the court deems appropriate.

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     (2) For a second violation, as described in subdivision (3) of this subsection, the court

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shall order the appropriate agencies to permanently revoke all licenses that are held by the

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employer specific to the business location where the unauthorized alien performed work. If the

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employer does not hold a license specific to the business location where the unauthorized alien

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performed work, but a license is necessary to operate the employer’s business in general, the

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court shall order the appropriate agencies to permanently revoke all licenses that are held by the

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employer at the employer’s primary place of business. On receipt of the order and

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notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

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     (3) The violation shall be considered:

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     (i) A first violation by an employer at a business location if the violation did not occur

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during a probationary period ordered by the court under subsection 42-28.10-10(f) for that

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employer’s business location.

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     (ii) A second violation by an employer at a business location if the violation occurred

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during a probationary period ordered by the court under subsection 42-28.10-10(f) for that

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employer’s business location.

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     (g) The attorney general shall maintain copies of court orders that are received pursuant

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to subsection (f) of this section and shall maintain a database of the employers and business

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locations that have a first violation of subsection (a) of this section and make the court orders

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available on the attorney general’s website.

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     (h) On determining whether an employee is an unauthorized alien, the court shall

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consider only the federal government’s determination pursuant to 8 United States code section

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1373(c). The federal government’s determination creates a rebuttable presumption of the

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employee’s lawful status. The court may take judicial notice of the federal government’s

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determination and may request the federal government to provide automated or testimonial

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verification pursuant to 8 United States code section 1373(c).

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     (i) For the purposes of this section, proof of verifying the employment authorization of an

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employee through the E-verify program creates a rebuttable presumption that an employer did not

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knowingly employ an unauthorized alien.

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     (j) For the purposes of this section, an employer that establishes that it has complied in

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good faith with the requirements of 8 United States code section 1324a(b) establishes an

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affirmative defense that the employer did not knowingly employ an unauthorized alien. An

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employer is considered to have complied with the requirements of 8 United States code section

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1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to

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meet the requirements, if there is a good faith attempt to comply with the requirements.

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     (k) To claim entrapment, the employer must admit by the employer’s testimony or other

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evidence the substantial elements of the violation. An employer who asserts an entrapment

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defense has the burden of proving the following by a preponderance of the evidence:

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     (1) The idea of committing the violation started with law enforcement officers or their

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agents rather than with the employer.

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     (2) The law enforcement officers or their agents urged and induced the employer to

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commit the violation.

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     (3) The employer was not predisposed to commit the violation before the law

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enforcement officers or their agents urged and induced the employer to commit the violation.

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     (l) An employer does not establish entrapment if the employer was predisposed to violate

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subsection (a) of this section and the law enforcement officers or their agents merely provided the

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employer with an opportunity to commit the violation. It is not entrapment for law enforcement

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officers or their agents merely to use a ruse or to conceal their identity. The conduct of law

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enforcement officers and their agents may be considered in determining if an employer has

11-17

proven entrapment.

11-18

     42-28.10-10. Intentionally employing unauthorized aliens; Prohibition; False and

11-19

frivolous complaints; Violation; Classification; License suspension and revocation;

11-20

Affirmative defense. – (a) An employer shall not intentionally employ an unauthorized alien. If,

11-21

in the case when an employer uses a contract, subcontract or other independent contractor

11-22

agreement to obtain the labor of an alien in this state, the employer intentionally contracts with an

11-23

unauthorized alien with a person who employs or contracts with an unauthorized alien to perform

11-24

the labor, the employer violates this subsection.

11-25

     (b) The attorney general shall prescribe a complaint form for a person to allege a

11-26

violation of subsection (a) of this section. The complainant shall not be required to list the

11-27

complainant’s social security number on the complaint form or to have the complaint form

11-28

notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly

11-29

intentionally employs an unauthorized alien, the attorney general shall investigate whether the

11-30

employer has violated subsection (a) of this section. If a complaint is received but is not

11-31

submitted on a prescribed complaint form, the attorney general may investigate whether the

11-32

employer has violated subsection (a) of this section. This subsection shall not be construed to

11-33

prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint

11-34

form. The attorney general shall not investigate complaints that are based solely on race, color or

12-1

national origin. Any other local law enforcement agency may assist in investigating a complaint.

12-2

When investigating a complaint, the attorney general shall verify the work authorization of the

12-3

alleged unauthorized alien with the federal government pursuant to 8 United States code section

12-4

1373(c). A state or local official shall not attempt to independently make a final determination on

12-5

whether an alien is authorized to work in the United States. An alien’s immigration status or work

12-6

authorization status shall be verified with the federal government pursuant to 8 United States code

12-7

section 1373(c). A person who knowingly files a false and/or frivolous complaint under this

12-8

subsection is guilty of a misdemeanor.

12-9

     (c) If, after an investigation, the attorney general determines that the complaint is not

12-10

false and/or frivolous:

12-11

     (1) The attorney general shall notify the United States immigration and customs

12-12

enforcement of the unauthorized alien.

12-13

     (2) The attorney general shall notify the local law enforcement agency of the

12-14

unauthorized alien.

12-15

     (d) An action for a violation of subsection (a) of this section shall be brought against the

12-16

employer by the attorney general in the county where the unauthorized alien employee is or was

12-17

employed by the employer. The attorney general shall not bring an action against any employer

12-18

for any violation of subsection (a) of this section that occurs before January 1, 2013. A second

12-19

violation of this section shall be based only on an unauthorized alien who is or was employed by

12-20

the employer after an action has been brought for a violation of subsection (a) of this section or

12-21

subsection 42-28.10-9(a).

12-22

     (e) For any action in superior court under this section, the court shall expedite the action,

12-23

including assigning the hearing at the earliest practicable date.

12-24

     (f) On a finding of a violation of subsection (a) of this section:

12-25

     (1) For a first violation, as described in subdivision (3) of this subsection, the court shall:

12-26

     (i) Order the employer to terminate the employment of all unauthorized aliens.

12-27

     (ii) Order the employer to be subject to a five (5) year probationary period for the

12-28

business location where the unauthorized alien performed work. During the probationary period

12-29

the employer shall file quarterly reports with the attorney general of each new employee who is

12-30

hired by the employer at the business location where the unauthorized alien performed work.

12-31

     (iii) Order the appropriate agencies to suspend all licenses described in subsection (d) of

12-32

this paragraph that are held by the employer for a minimum of ten (10) days. The court shall base

12-33

its decision on the length of the suspension under this subsection on any evidence or information

12-34

submitted to it during the action for a violation of this subsection and shall consider the following

13-1

factors, if relevant:

13-2

     (A) The number of unauthorized aliens employed by the employer.

13-3

     (B) Any prior misconduct by the employer.

13-4

     (C) The degree of harm resulting from the violation.

13-5

     (D) Whether the employer made good faith efforts to comply with any applicable

13-6

requirements.

13-7

     (E) The duration of the violation.

13-8

     (F) The role of the directors, officers or principals of the employer in the violation.

13-9

     (G) Any other factors the court deems appropriate.

13-10

     (iv) Order the employer to file a signed sworn affidavit with the attorney general. The

13-11

affidavit shall state that the employer has terminated the employment of all unauthorized aliens in

13-12

this state and that the employer will not intentionally or knowingly employ an unauthorized alien

13-13

in this state. The court shall order the appropriate agencies to suspend all licenses subject to this

13-14

subsection that are held by the employer if the employer fails to file a signed sworn affidavit with

13-15

the attorney general within three (3) business days after the order is issued. All licenses that are

13-16

suspended under this subdivision for failing to file a signed sworn affidavit shall remain

13-17

suspended until the employer files a signed sworn affidavit with the attorney general. For the

13-18

purposes of this subsection, the licenses that are subject to suspension under this subdivision are

13-19

all licenses that are held by the employer specific to the business location where the unauthorized

13-20

alien performed work. If the employer does not hold a license specific to the business location

13-21

where the unauthorized alien performed work, but a license is necessary to operate the

13-22

employer’s business in general, the licenses that are subject to suspension under this subdivision

13-23

are all licenses that are held by the employer at the employer’s primary place of business. On

13-24

receipt of the court’s order and notwithstanding any other law, the appropriate agencies shall

13-25

suspend the licenses according to the court’s order. The court shall send a copy of the court’s

13-26

order to the attorney general and the attorney general shall maintain the copy pursuant to

13-27

subsection (g) of this section.

13-28

     (2) For a second violation, as described in subsection (3) of this subsection, the court

13-29

shall order the appropriate agencies to permanently revoke all licenses that are held by the

13-30

employer specific to the business location where the unauthorized alien performed work. If the

13-31

employer does not hold a license specific to the business location where the unauthorized alien

13-32

performed work, but a license is necessary to operate the employer’s business in general, the

13-33

court shall order the appropriate agencies to permanently revoke all licenses that are held by the

13-34

employer at the employer’s primary place of business. On receipt of the order and

14-1

notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

14-2

     (3) The violation shall be considered:

14-3

     (i) A first violation by an employer at a business location if the violation did not occur

14-4

during a probationary period ordered by the court under subsection 42-28.10-9(f) for that

14-5

employer’s business location.

14-6

     (ii) A second violation by an employer at a business location if the violation occurred

14-7

during a probationary period ordered by the court under subsection 42-28.10-9(f) for that

14-8

employer’s business location.

14-9

     (g) The attorney general shall maintain copies of court orders that are received pursuant

14-10

to subsection (f) of this section and shall maintain a database of the employers and businesses

14-11

locations that have a first violation of subsection (a) of this section and make the court orders

14-12

available on the attorney general’s website.

14-13

     (h) On determining whether an employee is an unauthorized alien, the court shall

14-14

consider only the federal government’s determination pursuant to 8 United States code section

14-15

1373(c). The federal government’s determination creates a rebuttable presumption of the

14-16

employee’s lawful status. The court may take judicial notice of the federal government’s

14-17

determination and may request the federal government to provide automated or testimonial

14-18

verification pursuant to 8 United States code section 1373(c),

14-19

     (i) For the purposes of this section, proof of verifying the employment authorization of an

14-20

employee through the E-verify program creates a rebuttable presumption that an employer did not

14-21

intentionally employ an unauthorized alien.

14-22

     (j) For the purposes of this section, an employer that establishes that it has complied in

14-23

good faith with the requirements of 8 United States code section 1324a(b) establishes an

14-24

affirmative defense that the employer did not intentionally employ an unauthorized alien. An

14-25

employer is considered to have complied with the requirements of 8 United States code section

14-26

1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to

14-27

meet requirements, if there is a good faith attempt to comply with the requirements.

14-28

     (k) It is an affirmative defense to a violation of subsection (a) of this section that the

14-29

employer was entrapped. To claim entrapment, the employer must admit by the employer’s

14-30

testimony or other evidence the substantial elements of the violation. An employer who asserts an

14-31

entrapment defense has the burden of proving the following by a preponderance of the evidence:

14-32

     (1) The idea of committing the violation started with law enforcement officers or their

14-33

agents rather than with the employer.

15-34

     (2) The law enforcement officers or their agents urged and induced the employer to

15-35

commit the violation.

15-36

     (3) The employer was not predisposed to commit the violation before the law

15-37

enforcement officers or their agents urged and induced the employer to commit the violation.

15-38

     (l) An employer does not establish entrapment if the employer was predisposed to violate

15-39

subsection (a) of this section and the law enforcement officers or their agents merely provided the

15-40

employer with an opportunity to commit the violation. It is not entrapment for law enforcement

15-41

officers or their agents merely to use a ruse or to conceal their identity. The conduct of law

15-42

enforcement officers and their agents may be considered in determining if an employer has

15-43

proven entrapment.

15-44

     42-28.10-11. Verification of employer eligibility; E-verify program; Economic

15-45

development incentives; List of registered employers. – (a) After December 31, 2013, every

15-46

employer, after hiring an employee, shall verify the employment eligibility of the employee

15-47

through the E-verify program and shall keep a record of the verification for the duration of the

15-48

employee’s employment or at least three (3) years, whichever is longer.

15-49

     (b) In addition to any other requirement for an employer to receive an economic

15-50

development incentive from a government entity, the employer shall register with and participate

15-51

in the E-verify program. Before receiving the economic development incentive, the employer

15-52

shall provide proof to the government entity that the employer is registered with and is

15-53

participating in the E-verify program. If the government entity determines that the employer is

15-54

not complying with this subsection, the government entity shall notify the employer by certified

15-55

mail of the government entity’s determination of noncompliance and the employer’s right to

15-56

appeal the determination. On a final determination of noncompliance, the employer shall repay all

15-57

monies received as an economic development incentive to the government entity within thirty

15-58

(30) days of the final determination. For the purposes of this subsection:

15-59

     (1) “Economic development incentive” means any grant, loan or performance-based

15-60

incentive from any government entity that is awarded after September 30, 2013. Economic

15-61

development incentive does not include any tax provision under title 44.

15-62

     (2) “Government entity” means this state and any political subdivision of this state that

15-63

receives and uses tax revenues.

15-64

     (c) Every three (3) months the attorney general shall request from the United States

15-65

department of homeland security a list of employers from this state that are registered with the E-

15-66

verify program. On receipt of the list of employers, the attorney general shall make the list

15-67

available on the attorney general’s website.

16-68

     42-28.10-12. Removal and immobilization or impoundment of vehicle. – (a) A peace

16-69

officer shall cause the removal and either immobilization of impoundment of a vehicle if the

16-70

peace officer determines that a person is driving the vehicle while any of the following applies:

16-71

     (1) The person’s driving privilege is suspended or revoked for any reason.

16-72

     (2) The person has not ever been issued a valid driver license or permit by this state and

16-73

the person does not produce evidence of ever having a valid driver license or permit issued by

16-74

another jurisdiction. This paragraph does not apply to the operation of an implement of

16-75

husbandry.

16-76

     (3) The person is subject to an ignition interlock device requirement and the person is

16-77

operating a vehicle without a functioning certified ignition interlock device. This paragraph does

16-78

not apply to a person operating an employer's vehicle or the operation of a vehicle due to a

16-79

substantial emergency.

16-80

     (4) In furtherance of the illegal presence of an alien in the United States and in violation

16-81

of a criminal offense. The person is transporting or moving or attempting to transport or move an

16-82

alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien

16-83

has come to, has entered or remains in the United States in violation of law.

16-84

     (5) The person is concealing, harboring or shielding or attempting to conceal, harbor or

16-85

shield from detection an alien in this state in a vehicle if the person knows or recklessly

16-86

disregards the fact that the alien has come to, entered or remains in the United States in violation

16-87

of law.

16-88

     (b) A peace officer shall cause the removal and impoundment of a vehicle if the peace

16-89

officer determines that a person is driving the vehicle and if all of the following apply:

16-90

     (1) The person's driving privilege is canceled, suspended or revoked for any reason or the

16-91

person has never been issued a driver license or permit by this state and the person does not

16-92

produce evidence of ever having a driver license or permit issued by another jurisdiction.

16-93

     (2) The person is not in compliance with the financial responsibility as contained herein.

16-94

     (3) The person is driving a vehicle that is involved in an accident that results in either

16-95

property damage or injury to, or death of another person.

16-96

     (c) Except as provided in subsection (d) of this section, while a peace officer has control

16-97

of the vehicle the peace officer shall cause the removal and either immobilization or

16-98

impoundment of the vehicle if the peace officer has probable cause to arrest the driver of the

16-99

vehicle for a violation of state registration laws.

16-100

     (d) A peace officer shall not cause the removal and either the immobilization or

16-101

impoundment of a vehicle pursuant to subsection (c) of this section if all of the following apply:

17-102

     (1) The peace officer determines that the vehicle is currently registered and that the driver

17-103

of the vehicle is in compliance with the financial responsibility requirements as contained herein.

17-104

     (2) The spouse of the driver is with the driver at the time of the arrest.

17-105

     (3) The peace officer has reasonable grounds to believe that the spouse of the driver:

17-106

     (i) Has a valid driver license.

17-107

     (ii) Is not impaired by intoxicating liquor, any drug, a vapor releasing substance

17-108

containing a toxic substance or any combination of liquor, drugs or vapor releasing substances.

17-109

     (iii) Does not have any spirituous liquor in the spouse's body if the spouse is under

17-110

twenty-one years of age.

17-111

     (4) The spouse notifies the peace officer that the spouse will drive the vehicle from the

17-112

place of arrest to the driver's home or other place of safety.

17-113

     (e) Failure to comply with subsection (d) shall cause the vehicle to be immobilized or

17-114

impounded for thirty (30) days. An insurance company does not have a duty to pay any benefits

17-115

for charges or fees for immobilization or impoundment.

17-116

     (f) The owner of a vehicle that is removed and either immobilized or impounded pursuant

17-117

to subsection (a), (b) or (c) of this section, the spouse of the owner and each person identified on

17-118

the department's record with an interest in the vehicle shall be provided with an opportunity for

17-119

an immobilization or post-storage hearing pursuant to this chapter.

17-120

     42-28.10-13. Gang and immigration intelligence team enforcement mission fund. -

17-121

The gang and immigration intelligence team enforcement mission fund is established consisting

17-122

of monies deposited pursuant to this chapter and monies appropriated by the general assembly.

17-123

The department shall administer the fund. Monies in the fund are subject to general assembly

17-124

appropriation and shall be used for gang and immigration enforcement and for imprisonment

17-125

reimbursement costs relating to illegal immigration.

17-126

     42-28.10-14. Severability, implementation and construction. -- (a) If any provision of

17-127

this chapter, or its application to any person or circumstance is held invalid, the invalidity does

17-128

not affect other provisions or applications of the chapter that can be given effect without the valid

17-129

provision or application, and to this end the provisions of this act are severable.

17-130

     (b) The terms of this chapter regarding immigration shall be construed to have the

17-131

meanings given to them under federal immigration law.

17-132

     (c) This chapter shall be implemented in a manner consistent with federal laws regulating

17-133

immigration, protecting the civil rights of all persons and respecting the privileges and

17-134

immunities of United States citizens.

17-136

SECTION 2. This act shall take effect upon passage.

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LC00587

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - ENFORCEMENT OF

IMMIGRATION LAWS

***

19-1

     This act would create the "In Support of our Law Enforcement and Safe Neighborhood

19-2

Act" which would authorize and empower state and local law enforcement to work together with

19-3

federal authorities to discourage and deter the unlawful entry and presence of aliens and

19-4

economic activity by persons unlawfully in the United States.

19-5

     This act would take effect upon passage.

=======

LC00587

=======