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Arizona Immigration Law

Senate Engrossed

State of Arizona

Senate

Forty-ninth Legislature

Second Regular Session

2010

SENATE BILL 1070

AN ACT

AMENDING TITLE 11, CHAPTER 7, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 8;

AMENDING TITLE 13, CHAPTER 15, ARIZONA REVISED STATUTES, BY ADDING SECTION

13-1509; AMENDING SECTION 13-2319, ARIZONA REVISED STATUTES; AMENDING TITLE

13, CHAPTER 29, ARIZONA REVISED STATUTES, BY ADDING SECTIONS 13-2928 AND

13-2929; AMENDING SECTIONS 23-212, 23-212.01, 23-214 AND 28-3511, ARIZONA

REVISED STATUTES; AMENDING TITLE 41, CHAPTER 12, ARTICLE 2, ARIZONA REVISED

STATUTES, BY ADDING SECTION 41-1724; RELATING TO UNLAWFULLY PRESENT ALIENS.

(TEXT OF BILL BEGINS ON NEXT PAGE)

S.B. 1070

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

2 Section 1. Intent

3 The legislature finds that there is a compelling interest in the

4 cooperative enforcement of federal immigration laws throughout all of

5 Arizona. The legislature declares that the intent of this act is to make

6 attrition through enforcement the public policy of all state and local

7 government agencies in Arizona. The provisions of this act are intended to

8 work together to discourage and deter the unlawful entry and presence of

9 aliens and economic activity by persons unlawfully present in the United

10 States.

11 Sec. 2. Title 11, chapter 7, Arizona Revised Statutes, is amended by

12 adding article 8, to read:

13 ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS

14 11-1051. Cooperation and assistance in enforcement of

15 immigration laws; indemnification

16 A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR

17 OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR

18 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL

19 EXTENT PERMITTED BY FEDERAL LAW.

20 B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY

21 OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS

22 STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS

23 UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE,

24 WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE

25 PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT

26 PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

27 C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS

28 CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM

29 IMPRISONMENT OR ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN SHALL BE

30 TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES IMMIGRATION AND

31 CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION.

32 D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY

33 SECURELY TRANSPORT AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES

34 AND WHO IS IN THE AGENCY’S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO

35 ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE

36 JURISDICTION OF THE LAW ENFORCEMENT AGENCY.

37 E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON

38 IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED

39 ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

40 F. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS

41 STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS

42 STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING,

43 RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS OF

44 ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE

45 OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:

S.B. 1070

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1 1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE

2 PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS

3 STATE.

4 2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF

5 RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL

6 ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.

7 3. CONFIRMING THE IDENTITY OF ANY PERSON WHO IS DETAINED.

8 4. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN

9 COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER

10 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.

11 G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY

12 OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL

13 SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR

14 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL

15 EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN

16 ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:

17 1. THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND

18 ATTORNEY FEES.

19 2. THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND

20 DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY

21 HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS

22 SUBSECTION.

23 H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G

24 AND REMIT THE CIVIL PENALTY TO THE DEPARTMENT OF PUBLIC SAFETY FOR DEPOSIT IN

25 THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND

26 ESTABLISHED BY SECTION 41-1724.

27 I. A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT

28 OFFICER’S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY

29 FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR

30 PROCEEDING BROUGHT PURSUANT TO THIS SECTION TO WHICH THE OFFICER MAY BE A

31 PARTY BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW

32 ENFORCEMENT AGENCY, EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS

33 ADJUDGED TO HAVE ACTED IN BAD FAITH.

34 J. THIS SECTION SHALL BE IMPLEMENTED IN A MANNER CONSISTENT WITH

35 FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF ALL

36 PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES

37 CITIZENS.

38 Sec. 3. Title 13, chapter 15, Arizona Revised Statutes, is amended by

39 adding section 13-1509, to read:

40 13-1509. Trespassing by illegal aliens; assessment; exception;

41 classification

42 A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF

43 TRESPASSING IF THE PERSON IS BOTH:

44 1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.

45 2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).

S.B. 1070

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1 B. IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN

2 ALIEN’S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:

3 1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL

4 GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.

5 2. A LAW ENFORCEMENT OFFICER OR AGENCY COMMUNICATING WITH THE UNITED

6 STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES BORDER

7 PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

8 C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE

9 FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY BASIS UNTIL THE

10 SENTENCE IMPOSED IS SERVED.

11 D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL

12 ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE

13 FOLLOWING AMOUNTS:

14 1. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.

15 2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE

16 PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION.

17 E. A COURT SHALL COLLECT THE ASSESSMENTS PRESCRIBED IN SUBSECTION D OF

18 THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC SAFETY,

19 WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN THE ACCOUNT

20 ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT

21 MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT ARE SUBJECT TO

22 LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION

23 ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL

24 IMMIGRATION.

25 F. THIS SECTION DOES NOT APPLY TO A PERSON WHO MAINTAINS AUTHORIZATION

26 FROM THE FEDERAL GOVERNMENT TO REMAIN IN THE UNITED STATES.

27 G. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A

28 VIOLATION OF THIS SECTION IS:

29 1. A CLASS 3 FELONY IF THE PERSON VIOLATES THIS SECTION WHILE IN

30 POSSESSION OF ANY OF THE FOLLOWING:

31 (a) A DANGEROUS DRUG AS DEFINED IN SECTION 13-3401.

32 (b) PRECURSOR CHEMICALS THAT ARE USED IN THE MANUFACTURING OF

33 METHAMPHETAMINE IN VIOLATION OF SECTION 13-3404.01.

34 (c) A DEADLY WEAPON OR A DANGEROUS INSTRUMENT, AS DEFINED IN SECTION

35 13-105.

36 (d) PROPERTY THAT IS USED FOR THE PURPOSE OF COMMITTING AN ACT OF

37 TERRORISM AS PRESCRIBED IN SECTION 13-2308.01.

38 2. A CLASS 4 FELONY IF THE PERSON EITHER:

39 (a) IS CONVICTED OF A SECOND OR SUBSEQUENT VIOLATION OF THIS SECTION.

40 (b) WITHIN SIXTY MONTHS BEFORE THE VIOLATION, HAS BEEN REMOVED FROM

41 THE UNITED STATES PURSUANT TO 8 UNITED STATES CODE SECTION 1229a OR HAS

42 ACCEPTED A VOLUNTARY REMOVAL FROM THE UNITED STATES PURSUANT TO 8 UNITED

43 STATES CODE SECTION 1229c.

S.B. 1070

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1 Sec. 4. Section 13-2319, Arizona Revised Statutes, is amended to read:

2 13-2319. Smuggling; classification; definitions

3 A. It is unlawful for a person to intentionally engage in the

4 smuggling of human beings for profit or commercial purpose.

5 B. A violation of this section is a class 4 felony.

6 C. Notwithstanding subsection B of this section, a violation of this

7 section:

8 1. Is a class 2 felony if the human being who is smuggled is under

9 eighteen years of age and is not accompanied by a family member over eighteen

10 years of age or the offense involved the use of a deadly weapon or dangerous

11 instrument.

12 2. Is a class 3 felony if the offense involves the use or threatened

13 use of deadly physical force and the person is not eligible for suspension of

14 sentence, probation, pardon or release from confinement on any other basis

15 except pursuant to section 31-233, subsection A or B until the sentence

16 imposed by the court is served, the person is eligible for release pursuant

17 to section 41-1604.07 or the sentence is commuted.

18 D. Chapter 10 of this title does not apply to a violation of

19 subsection C, paragraph 1 of this section.

20 E. NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP

21 ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE

22 SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND

23 THIS SECTION.

24 E. F. For the purposes of this section:

25 1. “Family member” means the person’s parent, grandparent, sibling or

26 any other person who is related to the person by consanguinity or affinity to

27 the second degree.

28 2. “Procurement of transportation” means any participation in or

29 facilitation of transportation and includes:

30 (a) Providing services that facilitate transportation including travel

31 arrangement services or money transmission services.

32 (b) Providing property that facilitates transportation, including a

33 weapon, a vehicle or other means of transportation or false identification,

34 or selling, leasing, renting or otherwise making available a drop house as

35 defined in section 13-2322.

36 3. “Smuggling of human beings” means the transportation, procurement

37 of transportation or use of property or real property by a person or an

38 entity that knows or has reason to know that the person or persons

39 transported or to be transported are not United States citizens, permanent

40 resident aliens or persons otherwise lawfully in this state or have attempted

41 to enter, entered or remained in the United States in violation of law.

S.B. 1070

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1 Sec. 5. Title 13, chapter 29, Arizona Revised Statutes, is amended by

2 adding sections 13-2928 and 13-2929, to read:

3 13-2928. Unlawful stopping to hire and pick up passengers for

4 work; unlawful application, solicitation or

5 employment; classification; definitions

6 A. IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED

7 ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND PICK UP

8 PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR

9 IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

10 B. IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS

11 STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT

12 OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF

13 THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

14 C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED

15 STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT

16 WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT

17 CONTRACTOR IN THIS STATE.

18 D. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR.

19 E. FOR THE PURPOSES OF THIS SECTION:

20 1. “SOLICIT” MEANS VERBAL OR NONVERBAL COMMUNICATION BY A GESTURE OR A

21 NOD THAT WOULD INDICATE TO A REASONABLE PERSON THAT A PERSON IS WILLING TO BE

22 EMPLOYED.

23 2. “UNAUTHORIZED ALIEN” MEANS AN ALIEN WHO DOES NOT HAVE THE LEGAL

24 RIGHT OR AUTHORIZATION UNDER FEDERAL LAW TO WORK IN THE UNITED STATES AS

25 DESCRIBED IN 8 UNITED STATES CODE SECTION 1324a(h)(3).

26 13-2929. Unlawful transporting, moving, concealing, harboring

27 or shielding of unlawful aliens; vehicle

28 impoundment; classification

29 A. IT IS UNLAWFUL FOR A PERSON WHO IS IN VIOLATION OF A CRIMINAL

30 OFFENSE TO:

31 1. TRANSPORT OR MOVE OR ATTEMPT TO TRANSPORT OR MOVE AN ALIEN IN THIS

32 STATE IN A MEANS OF TRANSPORTATION IF THE PERSON KNOWS OR RECKLESSLY

33 DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE

34 UNITED STATES IN VIOLATION OF LAW.

35 2. CONCEAL, HARBOR OR SHIELD OR ATTEMPT TO CONCEAL, HARBOR OR SHIELD

36 AN ALIEN FROM DETECTION IN ANY PLACE IN THIS STATE, INCLUDING ANY BUILDING OR

37 ANY MEANS OF TRANSPORTATION, IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE

38 FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES

39 IN VIOLATION OF LAW.

40 3. ENCOURAGE OR INDUCE AN ALIEN TO COME TO OR RESIDE IN THIS STATE IF

41 THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT SUCH COMING TO,

42 ENTERING OR RESIDING IN THIS STATE IS OR WILL BE IN VIOLATION OF LAW.

43 B. A MEANS OF TRANSPORTATION THAT IS USED IN THE COMMISSION OF A

44 VIOLATION OF THIS SECTION IS SUBJECT TO MANDATORY VEHICLE IMMOBILIZATION OR

45 IMPOUNDMENT PURSUANT TO SECTION 28-3511.

S.B. 1070

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1 C. A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A CLASS 1

2 MISDEMEANOR AND IS SUBJECT TO A FINE OF AT LEAST ONE THOUSAND DOLLARS, EXCEPT

3 THAT A VIOLATION OF THIS SECTION THAT INVOLVES TEN OR MORE ILLEGAL ALIENS IS

4 A CLASS 6 FELONY AND THE PERSON IS SUBJECT TO A FINE OF AT LEAST ONE THOUSAND

5 DOLLARS FOR EACH ALIEN WHO IS INVOLVED.

6 Sec. 6. Section 23-212, Arizona Revised Statutes, is amended to read:

7 23-212. Knowingly employing unauthorized aliens; prohibition;

8 false and frivolous complaints; violation;

9 classification; license suspension and revocation;

10 affirmative defense

11 A. An employer shall not knowingly employ an unauthorized alien. If,

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

13 independent contractor agreement to obtain the labor of an alien in this

14 state, the employer knowingly contracts with an unauthorized alien or with a

15 person who employs or contracts with an unauthorized alien to perform the

16 labor, the employer violates this subsection.

17 B. The attorney general shall prescribe a complaint form for a person

18 to allege a violation of subsection A of this section. The complainant shall

19 not be required to list the complainant’s social security number on the

20 complaint form or to have the complaint form notarized. On receipt of a

21 complaint on a prescribed complaint form that an employer allegedly knowingly

22 employs an unauthorized alien, the attorney general or county attorney shall

23 investigate whether the employer has violated subsection A of this section.

24 If a complaint is received but is not submitted on a prescribed complaint

25 form, the attorney general or county attorney may investigate whether the

26 employer has violated subsection A of this section. This subsection shall

27 not be construed to prohibit the filing of anonymous complaints that are not

28 submitted on a prescribed complaint form. The attorney general or county

29 attorney shall not investigate complaints that are based solely on race,

30 color or national origin. A complaint that is submitted to a county attorney

31 shall be submitted to the county attorney in the county in which the alleged

32 unauthorized alien is or was employed by the employer. The county sheriff or

33 any other local law enforcement agency may assist in investigating a

34 complaint. When investigating a complaint, the attorney general or county

35 attorney shall verify the work authorization of the alleged unauthorized

36 alien with the federal government pursuant to 8 United States Code section

37 1373(c). A state, county or local official shall not attempt to

38 independently make a final determination on whether an alien is authorized to

39 work in the United States. An alien’s immigration status or work

40 authorization status shall be verified with the federal government pursuant

41 to 8 United States Code section 1373(c). A person who knowingly files a

42 false and frivolous complaint under this subsection is guilty of a class 3

43 misdemeanor.

S.B. 1070

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1 C. If, after an investigation, the attorney general or county attorney

2 determines that the complaint is not false and frivolous:

3 1. The attorney general or county attorney shall notify the United

4 States immigration and customs enforcement of the unauthorized alien.

5 2. The attorney general or county attorney shall notify the local law

6 enforcement agency of the unauthorized alien.

7 3. The attorney general shall notify the appropriate county attorney

8 to bring an action pursuant to subsection D of this section if the complaint

9 was originally filed with the attorney general.

10 D. An action for a violation of subsection A of this section shall be

11 brought against the employer by the county attorney in the county where the

12 unauthorized alien employee is or was employed by the employer. The county

13 attorney shall not bring an action against any employer for any violation of

14 subsection A of this section that occurs before January 1, 2008. A second

15 violation of this section shall be based only on an unauthorized alien who is

16 or was employed by the employer after an action has been brought for a

17 violation of subsection A of this section or section 23-212.01, subsection A.

18 E. For any action in superior court under this section, the court

19 shall expedite the action, including assigning the hearing at the earliest

20 practicable date.

21 F. On a finding of a violation of subsection A of this section:

22 1. For a first violation, as described in paragraph 3 of this

23 subsection, the court:

24 (a) Shall order the employer to terminate the employment of all

25 unauthorized aliens.

26 (b) Shall order the employer to be subject to a three year

27 probationary period for the business location where the unauthorized alien

28 performed work. During the probationary period the employer shall file

29 quarterly reports in the form provided in section 23-722.01 with the county

30 attorney of each new employee who is hired by the employer at the business

31 location where the unauthorized alien performed work.

32 (c) Shall order the employer to file a signed sworn affidavit with the

33 county attorney within three business days after the order is issued. The

34 affidavit shall state that the employer has terminated the employment of all

35 unauthorized aliens in this state and that the employer will not

36 intentionally or knowingly employ an unauthorized alien in this state. The

37 court shall order the appropriate agencies to suspend all licenses subject to

38 this subdivision that are held by the employer if the employer fails to file

39 a signed sworn affidavit with the county attorney within three business days

40 after the order is issued. All licenses that are suspended under this

41 subdivision shall remain suspended until the employer files a signed sworn

42 affidavit with the county attorney. Notwithstanding any other law, on filing

43 of the affidavit the suspended licenses shall be reinstated immediately by

44 the appropriate agencies. For the purposes of this subdivision, the licenses

45 that are subject to suspension under this subdivision are all licenses that

S.B. 1070

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1 are held by the employer specific to the business location where the

2 unauthorized alien performed work. If the employer does not hold a license

3 specific to the business location where the unauthorized alien performed

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

5 general, the licenses that are subject to suspension under this subdivision

6 are all licenses that are held by the employer at the employer’s primary

7 place of business. On receipt of the court’s order and notwithstanding any

8 other law, the appropriate agencies shall suspend the licenses according to

9 the court’s order. The court shall send a copy of the court’s order to the

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

11 subsection G of this section.

12 (d) May order the appropriate agencies to suspend all licenses

13 described in subdivision (c) of this paragraph that are held by the employer

14 for not to exceed ten business days. The court shall base its decision to

15 suspend under this subdivision on any evidence or information submitted to it

16 during the action for a violation of this subsection and shall consider the

17 following factors, if relevant:

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

19 (ii) Any prior misconduct by the employer.

20 (iii) The degree of harm resulting from the violation.

21 (iv) Whether the employer made good faith efforts to comply with any

22 applicable requirements.

23 (v) The duration of the violation.

24 (vi) The role of the directors, officers or principals of the employer

25 in the violation.

26 (vii) Any other factors the court deems appropriate.

27 2. For a second violation, as described in paragraph 3 of this

28 subsection, the court shall order the appropriate agencies to permanently

29 revoke all licenses that are held by the employer specific to the business

30 location where the unauthorized alien performed work. If the employer does

31 not hold a license specific to the business location where the unauthorized

32 alien performed work, but a license is necessary to operate the employer’s

33 business in general, the court shall order the appropriate agencies to

34 permanently revoke all licenses that are held by the employer at the

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

36 notwithstanding any other law, the appropriate agencies shall immediately

37 revoke the licenses.

38 3. The violation shall be considered:

39 (a) A first violation by an employer at a business location if the

40 violation did not occur during a probationary period ordered by the court

41 under this subsection or section 23-212.01, subsection F for that employer’s

42 business location.

43 (b) A second violation by an employer at a business location if the

44 violation occurred during a probationary period ordered by the court under

S.B. 1070

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1 this subsection or section 23-212.01, subsection F for that employer’s

2 business location.

3 G. The attorney general shall maintain copies of court orders that are

4 received pursuant to subsection F of this section and shall maintain a

5 database of the employers and business locations that have a first violation

6 of subsection A of this section and make the court orders available on the

7 attorney general’s website.

8 H. On determining whether an employee is an unauthorized alien, the

9 court shall consider only the federal government’s determination pursuant to

10 8 United States Code section 1373(c). The federal government’s determination

11 creates a rebuttable presumption of the employee’s lawful status. The court

12 may take judicial notice of the federal government’s determination and may

13 request the federal government to provide automated or testimonial

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

15 I. For the purposes of this section, proof of verifying the employment

16 authorization of an employee through the e-verify program creates a

17 rebuttable presumption that an employer did not knowingly employ an

18 unauthorized alien.

19 J. For the purposes of this section, an employer that establishes that

20 it has complied in good faith with the requirements of 8 United States Code

21 section 1324a(b) establishes an affirmative defense that the employer did not

22 knowingly employ an unauthorized alien. An employer is considered to have

23 complied with the requirements of 8 United States Code section 1324a(b),

24 notwithstanding an isolated, sporadic or accidental technical or procedural

25 failure to meet the requirements, if there is a good faith attempt to comply

26 with the requirements.

27 K. IT IS AN AFFIRMATIVE DEFENSE TO A VIOLATION OF SUBSECTION A OF THIS

28 SECTION THAT THE EMPLOYER WAS ENTRAPPED. TO CLAIM ENTRAPMENT, THE EMPLOYER

29 MUST ADMIT BY THE EMPLOYER’S TESTIMONY OR OTHER EVIDENCE THE SUBSTANTIAL

30 ELEMENTS OF THE VIOLATION. AN EMPLOYER WHO ASSERTS AN ENTRAPMENT DEFENSE HAS

31 THE BURDEN OF PROVING THE FOLLOWING BY CLEAR AND CONVINCING EVIDENCE:

32 1. THE IDEA OF COMMITTING THE VIOLATION STARTED WITH LAW ENFORCEMENT

33 OFFICERS OR THEIR AGENTS RATHER THAN WITH THE EMPLOYER.

34 2. THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE

35 EMPLOYER TO COMMIT THE VIOLATION.

36 3. THE EMPLOYER WAS NOT PREDISPOSED TO COMMIT THE VIOLATION BEFORE THE

37 LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO

38 COMMIT THE VIOLATION.

39 L. AN EMPLOYER DOES NOT ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS

40 PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW ENFORCEMENT

41 OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN OPPORTUNITY TO

42 COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW ENFORCEMENT OFFICERS OR

43 THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE CONDUCT

44 OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN DETERMINING

45 IF AN EMPLOYER HAS PROVEN ENTRAPMENT.

S.B. 1070

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1 Sec. 7. Section 23-212.01, Arizona Revised Statutes, is amended to

2 read:

3 23-212.01. Intentionally employing unauthorized aliens;

4 prohibition; false and frivolous complaints;

5 violation; classification; license suspension and

6 revocation; affirmative defense

7 A. An employer shall not intentionally employ an unauthorized alien.

8 If, in the case when an employer uses a contract, subcontract or other

9 independent contractor agreement to obtain the labor of an alien in this

10 state, the employer intentionally contracts with an unauthorized alien or

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

12 the labor, the employer violates this subsection.

13 B. The attorney general shall prescribe a complaint form for a person

14 to allege a violation of subsection A of this section. The complainant shall

15 not be required to list the complainant’s social security number on the

16 complaint form or to have the complaint form notarized. On receipt of a

17 complaint on a prescribed complaint form that an employer allegedly

18 intentionally employs an unauthorized alien, the attorney general or county

19 attorney shall investigate whether the employer has violated subsection A of

20 this section. If a complaint is received but is not submitted on a

21 prescribed complaint form, the attorney general or county attorney may

22 investigate whether the employer has violated subsection A of this section.

23 This subsection shall not be construed to prohibit the filing of anonymous

24 complaints that are not submitted on a prescribed complaint form. The

25 attorney general or county attorney shall not investigate complaints that are

26 based solely on race, color or national origin. A complaint that is

27 submitted to a county attorney shall be submitted to the county attorney in

28 the county in which the alleged unauthorized alien is or was employed by the

29 employer. The county sheriff or any other local law enforcement agency may

30 assist in investigating a complaint. When investigating a complaint, the

31 attorney general or county attorney shall verify the work authorization of

32 the alleged unauthorized alien with the federal government pursuant to

33 8 United States Code section 1373(c). A state, county or local official

34 shall not attempt to independently make a final determination on whether an

35 alien is authorized to work in the United States. An alien’s immigration

36 status or work authorization status shall be verified with the federal

37 government pursuant to 8 United States Code section 1373(c). A person who

38 knowingly files a false and frivolous complaint under this subsection is

39 guilty of a class 3 misdemeanor.

40 C. If, after an investigation, the attorney general or county attorney

41 determines that the complaint is not false and frivolous:

42 1. The attorney general or county attorney shall notify the United

43 States immigration and customs enforcement of the unauthorized alien.

44 2. The attorney general or county attorney shall notify the local law

45 enforcement agency of the unauthorized alien.

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1 3. The attorney general shall notify the appropriate county attorney

2 to bring an action pursuant to subsection D of this section if the complaint

3 was originally filed with the attorney general.

4 D. An action for a violation of subsection A of this section shall be

5 brought against the employer by the county attorney in the county where the

6 unauthorized alien employee is or was employed by the employer. The county

7 attorney shall not bring an action against any employer for any violation of

8 subsection A of this section that occurs before January 1, 2008. A second

9 violation of this section shall be based only on an unauthorized alien who is

10 or was employed by the employer after an action has been brought for a

11 violation of subsection A of this section or section 23-212, subsection A.

12 E. For any action in superior court under this section, the court

13 shall expedite the action, including assigning the hearing at the earliest

14 practicable date.

15 F. On a finding of a violation of subsection A of this section:

16 1. For a first violation, as described in paragraph 3 of this

17 subsection, the court shall:

18 (a) Order the employer to terminate the employment of all unauthorized

19 aliens.

20 (b) Order the employer to be subject to a five year probationary

21 period for the business location where the unauthorized alien performed work.

22 During the probationary period the employer shall file quarterly reports in

23 the form provided in section 23-722.01 with the county attorney of each new

24 employee who is hired by the employer at the business location where the

25 unauthorized alien performed work.

26 (c) Order the appropriate agencies to suspend all licenses described

27 in subdivision (d) of this paragraph that are held by the employer for a

28 minimum of ten days. The court shall base its decision on the length of the

29 suspension under this subdivision on any evidence or information submitted to

30 it during the action for a violation of this subsection and shall consider

31 the following factors, if relevant:

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

33 (ii) Any prior misconduct by the employer.

34 (iii) The degree of harm resulting from the violation.

35 (iv) Whether the employer made good faith efforts to comply with any

36 applicable requirements.

37 (v) The duration of the violation.

38 (vi) The role of the directors, officers or principals of the employer

39 in the violation.

40 (vii) Any other factors the court deems appropriate.

41 (d) Order the employer to file a signed sworn affidavit with the

42 county attorney. The affidavit shall state that the employer has terminated

43 the employment of all unauthorized aliens in this state and that the employer

44 will not intentionally or knowingly employ an unauthorized alien in this

45 state. The court shall order the appropriate agencies to suspend all

S.B. 1070

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1 licenses subject to this subdivision that are held by the employer if the

2 employer fails to file a signed sworn affidavit with the county attorney

3 within three business days after the order is issued. All licenses that are

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

5 shall remain suspended until the employer files a signed sworn affidavit with

6 the county attorney. For the purposes of this subdivision, the licenses that

7 are subject to suspension under this subdivision are all licenses that are

8 held by the employer specific to the business location where the unauthorized

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

10 the business location where the unauthorized alien performed work, but a

11 license is necessary to operate the employer’s business in general, the

12 licenses that are subject to suspension under this subdivision are all

13 licenses that are held by the employer at the employer’s primary place of

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

15 the appropriate agencies shall suspend the licenses according to the court’s

16 order. The court shall send a copy of the court’s order to the attorney

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

18 subsection G of this section.

19 2. For a second violation, as described in paragraph 3 of this

20 subsection, the court shall order the appropriate agencies to permanently

21 revoke all licenses that are held by the employer specific to the business

22 location where the unauthorized alien performed work. If the employer does

23 not hold a license specific to the business location where the unauthorized

24 alien performed work, but a license is necessary to operate the employer’s

25 business in general, the court shall order the appropriate agencies to

26 permanently revoke all licenses that are held by the employer at the

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

28 notwithstanding any other law, the appropriate agencies shall immediately

29 revoke the licenses.

30 3. The violation shall be considered:

31 (a) A first violation by an employer at a business location if the

32 violation did not occur during a probationary period ordered by the court

33 under this subsection or section 23-212, subsection F for that employer’s

34 business location.

35 (b) A second violation by an employer at a business location if the

36 violation occurred during a probationary period ordered by the court under

37 this subsection or section 23-212, subsection F for that employer’s business

38 location.

39 G. The attorney general shall maintain copies of court orders that are

40 received pursuant to subsection F of this section and shall maintain a

41 database of the employers and business locations that have a first violation

42 of subsection A of this section and make the court orders available on the

43 attorney general’s website.

44 H. On determining whether an employee is an unauthorized alien, the

45 court shall consider only the federal government’s determination pursuant to

S.B. 1070

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1 8 United States Code section 1373(c). The federal government’s determination

2 creates a rebuttable presumption of the employee’s lawful status. The court

3 may take judicial notice of the federal government’s determination and may

4 request the federal government to provide automated or testimonial

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

6 I. For the purposes of this section, proof of verifying the employment

7 authorization of an employee through the e-verify program creates a

8 rebuttable presumption that an employer did not intentionally employ an

9 unauthorized alien.

10 J. For the purposes of this section, an employer that establishes that

11 it has complied in good faith with the requirements of 8 United States Code

12 section 1324a(b) establishes an affirmative defense that the employer did not

13 intentionally employ an unauthorized alien. An employer is considered to

14 have complied with the requirements of 8 United States Code section 1324a(b),

15 notwithstanding an isolated, sporadic or accidental technical or procedural

16 failure to meet the requirements, if there is a good faith attempt to comply

17 with the requirements.

18 K. IT IS AN AFFIRMATIVE DEFENSE TO A VIOLATION OF SUBSECTION A OF THIS

19 SECTION THAT THE EMPLOYER WAS ENTRAPPED. TO CLAIM ENTRAPMENT, THE EMPLOYER

20 MUST ADMIT BY THE EMPLOYER’S TESTIMONY OR OTHER EVIDENCE THE SUBSTANTIAL

21 ELEMENTS OF THE VIOLATION. AN EMPLOYER WHO ASSERTS AN ENTRAPMENT DEFENSE HAS

22 THE BURDEN OF PROVING THE FOLLOWING BY CLEAR AND CONVINCING EVIDENCE:

23 1. THE IDEA OF COMMITTING THE VIOLATION STARTED WITH LAW ENFORCEMENT

24 OFFICERS OR THEIR AGENTS RATHER THAN WITH THE EMPLOYER.

25 2. THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE

26 EMPLOYER TO COMMIT THE VIOLATION.

27 3. THE EMPLOYER WAS NOT PREDISPOSED TO COMMIT THE VIOLATION BEFORE THE

28 LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO

29 COMMIT THE VIOLATION.

30 L. AN EMPLOYER DOES NOT ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS

31 PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW ENFORCEMENT

32 OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN OPPORTUNITY TO

33 COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW ENFORCEMENT OFFICERS OR

34 THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE CONDUCT

35 OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN DETERMINING

36 IF AN EMPLOYER HAS PROVEN ENTRAPMENT.

37 Sec. 8. Section 23-214, Arizona Revised Statutes, is amended to read:

38 23-214. Verification of employment eligibility; e-verify

39 program; economic development incentives; list of

40 registered employers

41 A. After December 31, 2007, every employer, after hiring an employee,

42 shall verify the employment eligibility of the employee through the e-verify

43 program AND SHALL KEEP A RECORD OF THE VERIFICATION FOR THE DURATION OF THE

44 EMPLOYEE’S EMPLOYMENT OR AT LEAST THREE YEARS, WHICHEVER IS LONGER.

S.B. 1070

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1 B. In addition to any other requirement for an employer to receive an

2 economic development incentive from a government entity, the employer shall

3 register with and participate in the e-verify program. Before receiving the

4 economic development incentive, the employer shall provide proof to the

5 government entity that the employer is registered with and is participating

6 in the e-verify program. If the government entity determines that the

7 employer is not complying with this subsection, the government entity shall

8 notify the employer by certified mail of the government entity’s

9 determination of noncompliance and the employer’s right to appeal the

10 determination. On a final determination of noncompliance, the employer shall

11 repay all monies received as an economic development incentive to the

12 government entity within thirty days of the final determination. For the

13 purposes of this subsection:

14 1. “Economic development incentive” means any grant, loan or

15 performance-based incentive from any government entity that is awarded after

16 September 30, 2008. Economic development incentive does not include any tax

17 provision under title 42 or 43.

18 2. “Government entity” means this state and any political subdivision

19 of this state that receives and uses tax revenues.

20 C. Every three months the attorney general shall request from the

21 United States department of homeland security a list of employers from this

22 state that are registered with the e-verify program. On receipt of the list

23 of employers, the attorney general shall make the list available on the

24 attorney general’s website.

25 Sec. 9. Section 28-3511, Arizona Revised Statutes, is amended to read:

26 28-3511. Removal and immobilization or impoundment of vehicle

27 A. A peace officer shall cause the removal and either immobilization

28 or impoundment of a vehicle if the peace officer determines that a person is

29 driving the vehicle while any of the following applies:

30 1. The person’s driving privilege is suspended or revoked for any

31 reason.

32 2. The person has not ever been issued a valid driver license or

33 permit by this state and the person does not produce evidence of ever having

34 a valid driver license or permit issued by another jurisdiction. This

35 paragraph does not apply to the operation of an implement of husbandry.

36 3. The person is subject to an ignition interlock device requirement

37 pursuant to chapter 4 of this title and the person is operating a vehicle

38 without a functioning certified ignition interlock device. This paragraph

39 does not apply to a person operating an employer’s vehicle or the operation

40 of a vehicle due to a substantial emergency as defined in section 28-1464.

41 4. THE PERSON IS IN VIOLATION OF A CRIMINAL OFFENSE AND IS

42 TRANSPORTING, MOVING, CONCEALING, HARBORING OR SHIELDING OR ATTEMPTING TO

43 TRANSPORT, MOVE, CONCEAL, HARBOR OR SHIELD AN ALIEN IN THIS STATE IN A

44 VEHICLE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN

45 HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.

S.B. 1070

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1 B. A peace officer shall cause the removal and impoundment of a

2 vehicle if the peace officer determines that a person is driving the vehicle

3 and if all of the following apply:

4 1. The person’s driving privilege is canceled, suspended or revoked

5 for any reason or the person has not ever been issued a driver license or

6 permit by this state and the person does not produce evidence of ever having

7 a driver license or permit issued by another jurisdiction.

8 2. The person is not in compliance with the financial responsibility

9 requirements of chapter 9, article 4 of this title.

10 3. The person is driving a vehicle that is involved in an accident

11 that results in either property damage or injury to or death of another

12 person.

13 C. Except as provided in subsection D of this section, while a peace

14 officer has control of the vehicle the peace officer shall cause the removal

15 and either immobilization or impoundment of the vehicle if the peace officer

16 has probable cause to arrest the driver of the vehicle for a violation of

17 section 4-244, paragraph 34 or section 28-1382 or 28-1383.

18 D. A peace officer shall not cause the removal and either the

19 immobilization or impoundment of a vehicle pursuant to subsection C of this

20 section if all of the following apply:

21 1. The peace officer determines that the vehicle is currently

22 registered and that the driver or the vehicle is in compliance with the

23 financial responsibility requirements of chapter 9, article 4 of this title.

24 2. The spouse of the driver is with the driver at the time of the

25 arrest.

26 3. The peace officer has reasonable grounds to believe that the spouse

27 of the driver:

28 (a) Has a valid driver license.

29 (b) Is not impaired by intoxicating liquor, any drug, a vapor

30 releasing substance containing a toxic substance or any combination of

31 liquor, drugs or vapor releasing substances.

32 (c) Does not have any spirituous liquor in the spouse’s body if the

33 spouse is under twenty-one years of age.

34 4. The spouse notifies the peace officer that the spouse will drive

35 the vehicle from the place of arrest to the driver’s home or other place of

36 safety.

37 5. The spouse drives the vehicle as prescribed by paragraph 4 of this

38 subsection.

39 E. Except as otherwise provided in this article, a vehicle that is

40 removed and either immobilized or impounded pursuant to subsection A, B or C

41 of this section shall be immobilized or impounded for thirty days. An

42 insurance company does not have a duty to pay any benefits for charges or

43 fees for immobilization or impoundment.

44 F. The owner of a vehicle that is removed and either immobilized or

45 impounded pursuant to subsection A, B or C of this section, the spouse of the

S.B. 1070

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