State of Arizona Senate Forty-ninth Legislature Second Regular Session 2010

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)

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The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

Sec. 2. Title 11, chapter 7, Arizona Revised Statutes, is amended by adding article 8, to read:

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ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS

Cooperation and assistance in enforcement of immigration laws; indemnification

A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM IMPRISONMENT OR ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN SHALL BE TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION.

D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY SECURELY TRANSPORT AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE JURISDICTION OF THE LAW ENFORCEMENT AGENCY.

E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

F. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING, RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:

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1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS

STATE.

2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.

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

4. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.

G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:

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

2. THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.

H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G AND REMIT THE CIVIL PENALTY TO THE DEPARTMENT OF PUBLIC SAFETY FOR DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND ESTABLISHED BY SECTION 41-1724.

I. A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT OFFICER'S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING BROUGHT PURSUANT TO THIS SECTION TO WHICH THE OFFICER MAY BE A PARTY BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW ENFORCEMENT AGENCY, EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO HAVE ACTED IN BAD FAITH.

J. THIS SECTION SHALL BE IMPLEMENTED IN A MANNER CONSISTENT WITH FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF ALL PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES CITIZENS.

Sec. 3. Title 13, chapter 15, Arizona Revised Statutes, is amended by adding section 13-1509, to read:

A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF TRESPASSING IF THE PERSON IS BOTH:

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B. IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN ALIEN'S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:

1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN'S IMMIGRATION STATUS.

C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY BASIS UNTIL THE SENTENCE IMPOSED IS SERVED.

D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE FOLLOWING AMOUNTS:

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

2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION. E. A COURT SHALL COLLECT THE ASSESSMENTS PRESCRIBED IN SUBSECTION D OF THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC SAFETY, WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN THE ACCOUNT ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT ARE SUBJECT TO LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL

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

FROM THE FEDERAL GOVERNMENT TO REMAIN IN THE UNITED STATES. G. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A

VIOLATION OF THIS SECTION IS: 1. A CLASS 3 FELONY IF THE PERSON VIOLATES THIS SECTION WHILE IN

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TERRORISM 2.

PROPERTY THAT IS USED FOR THE PURPOSE OF COMMITTING AN ACT OF AS PRESCRIBED IN SECTION 13-2308.01. A CLASS 4 FELONY IF THE PERSON EITHER:

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smuggling of human beings for profit or commercial purpose. B. A violation of this section is a class 4 felony. C. Notwithstanding subsection B of this section, a violation of this

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

eighteen years of age and is not accompanied by a family member over eighteen years of age or the offense involved the use of a deadly weapon or dangerous instrument.

2. Is a class 3 felony if the offense involves the use or threatened use of deadly physical force and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any other basis except pursuant to section 31-233, subsection A or B until the sentence imposed by the court is served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.

D. Chapter 10 of this title does not apply to a violation of subsection C, paragraph 1 of this section.

E. NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND THIS SECTION.

1. "Family member" means the person's parent, grandparent, sibling or any other person who is related to the person by consanguinity or affinity to the second degree.

2. "Procurement of transportation" means any participation in or facilitation of transportation and includes:

(a) Providing services that facilitate transportation including travel arrangement services or money transmission services.

(b) Providing property that facilitates transportation, including a weapon, a vehicle or other means of transportation or false identification, or selling, leasing, renting or otherwise making available a drop house as defined in section 13-2322.

3. "Smuggling of human beings" means the transportation, procurement of transportation or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state or have attempted to enter, entered or remained in the United States in violation of law.

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Sec. 5. Title 13, chapter 29, Arizona Revised Statutes, is amended by adding sections 13-2928 and 13-2929, to read:

A. IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND PICK UP PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

B. IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE.

D. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR. E. FOR THE PURPOSES OF THIS SECTION: 1. "SOLICIT" MEANS VERBAL OR NONVERBAL COMMUNICATION BY A GESTURE OR A

NOD THAT WOULD INDICATE TO A REASONABLE PERSON THAT A PERSON IS WILLING TO BE EMPLOYED.

A. IT IS UNLAWFUL FOR A PERSON WHO IS IN VIOLATION OF A CRIMINAL OFFENSE TO:

1. TRANSPORT OR MOVE OR ATTEMPT TO TRANSPORT OR MOVE AN ALIEN IN THIS STATE IN A MEANS OF TRANSPORTATION IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.

2. CONCEAL, HARBOR OR SHIELD OR ATTEMPT TO CONCEAL, HARBOR OR SHIELD AN ALIEN FROM DETECTION IN ANY PLACE IN THIS STATE, INCLUDING ANY BUILDING OR ANY MEANS OF TRANSPORTATION, IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.

3. ENCOURAGE OR INDUCE AN ALIEN TO COME TO OR RESIDE IN THIS STATE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT SUCH COMING TO, ENTERING OR RESIDING IN THIS STATE IS OR WILL BE IN VIOLATION OF LAW.

B. A MEANS OF TRANSPORTATION THAT IS USED IN THE COMMISSION OF A VIOLATION OF THIS SECTION IS SUBJECT TO MANDATORY VEHICLE IMMOBILIZATION OR IMPOUNDMENT PURSUANT TO SECTION 28-3511.

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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

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are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to subsection G of this section.

(d) May order the appropriate agencies to suspend all licenses described in subdivision (c) of this paragraph that are held by the employer for not to exceed ten business days. The court shall base its decision to suspend under this subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant:

(i) The number of unauthorized aliens employed by the employer. (ii) Any prior misconduct by the employer. (iii) The degree of harm resulting from the violation. (iv) Whether the employer made good faith efforts to comply with any

applicable requirements. (v) The duration of the violation. (vi) The role of the directors, officers or principals of the employer

in the violation. (vii) Any other factors the court deems appropriate. 2. For a second violation, as described in paragraph 3 of this

subsection, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

3. The violation shall be considered:

(a) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or section 23-212.01, subsection F for that employer's business location.

(b) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under

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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.

OR THEIR AGENTS RATHER THAN WITH THE EMPLOYER. THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE

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

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

Intentionally employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense

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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3. The attorney general shall notify the appropriate county attorney to bring an action pursuant to subsection D of this section if the complaint was originally filed with the attorney general.

D. An action for a violation of subsection A of this section shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is or was employed by the employer. The county attorney shall not bring an action against any employer for any violation of subsection A of this section that occurs before January 1, 2008. A second violation of this section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection A of this section or section 23-212, subsection A.

E. For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

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

1. For a first violation, as described in paragraph 3 of this subsection, the court shall:

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

(b) Order the employer to be subject to a five year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports in the form provided in section 23-722.01 with the county attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work.

(c) Order the appropriate agencies to suspend all licenses described in subdivision (d) of this paragraph that are held by the employer for a minimum of ten days. The court shall base its decision on the length of the suspension under this subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant:

(i) The number of unauthorized aliens employed by the employer. (ii) Any prior misconduct by the employer. (iii) The degree of harm resulting from the violation. (iv) Whether the employer made good faith efforts to comply with any

applicable requirements. (v) The duration of the violation. (vi) The role of the directors, officers or principals of the employer

in the violation. (vii) Any other factors the court deems appropriate. (d) Order the employer to file a signed sworn affidavit with the

county attorney. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. The court shall order the appropriate agencies to suspend all

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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

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8 United States Code section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 United States Code section 1373(c).

I. For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not intentionally employ an unauthorized alien.

J. For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 United States Code section 1324a(b) establishes an affirmative defense that the employer did not intentionally employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 United States Code section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

K. IT IS AN AFFIRMATIVE DEFENSE TO A VIOLATION OF SUBSECTION A OF THIS SECTION THAT THE EMPLOYER WAS ENTRAPPED. TO CLAIM ENTRAPMENT, THE EMPLOYER MUST ADMIT BY THE EMPLOYER'S TESTIMONY OR OTHER EVIDENCE THE SUBSTANTIAL ELEMENTS OF THE VIOLATION. AN EMPLOYER WHO ASSERTS AN ENTRAPMENT DEFENSE HAS THE BURDEN OF PROVING THE FOLLOWING BY CLEAR AND CONVINCING EVIDENCE:

1. THE IDEA OF COMMITTING THE VIOLATION STARTED WITH LAW ENFORCEMENT OFFICERS OR THEIR AGENTS RATHER THAN WITH THE EMPLOYER.

2. THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO COMMIT THE VIOLATION.

3. THE EMPLOYER WAS NOT PREDISPOSED TO COMMIT THE VIOLATION BEFORE THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO COMMIT THE VIOLATION.

L. AN EMPLOYER DOES NOT ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN OPPORTUNITY TO COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE CONDUCT OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN DETERMINING IF AN EMPLOYER HAS PROVEN ENTRAPMENT.

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

registered employers

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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.

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.

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B. A peace officer shall cause the removal and impoundment of a vehicle if the peace officer determines that a person is driving the vehicle and if all of the following apply:

1. The person's driving privilege is canceled, suspended or revoked for any reason or the person has not ever been issued a driver license or permit by this state and the person does not produce evidence of ever having a driver license or permit issued by another jurisdiction.

2. The person is not in compliance with the financial responsibility requirements of chapter 9, article 4 of this title.

3. The person is driving a vehicle that is involved in an accident that results in either property damage or injury to or death of another person.

C. Except as provided in subsection D of this section, while a peace officer has control of the vehicle the peace officer shall cause the removal and either immobilization or impoundment of the vehicle if the peace officer has probable cause to arrest the driver of the vehicle for a violation of section 4-244, paragraph 34 or section 28-1382 or 28-1383.

D. A peace officer shall not cause the removal and either the immobilization or impoundment of a vehicle pursuant to subsection C of this section if all of the following apply:

1. The peace officer determines that the vehicle is currently registered and that the driver or the vehicle is in compliance with the financial responsibility requirements of chapter 9, article 4 of this title.

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

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

(a) Has a valid driver license.

(b) Is not impaired by intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances.

(c) Does not have any spirituous liquor in the spouse's body if the spouse is under twenty-one years of age.

4. The spouse notifies the peace officer that the spouse will drive the vehicle from the place of arrest to the driver's home or other place of safety.

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

E. Except as otherwise provided in this article, a vehicle that is removed and either immobilized or impounded pursuant to subsection A, B or C of this section shall be immobilized or impounded for thirty days. An insurance company does not have a duty to pay any benefits for charges or fees for immobilization or impoundment.

F. The owner of a vehicle that is removed and either immobilized or impounded pursuant to subsection A, B or C of this section, the spouse of the

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owner and each person identified on the department's record with an interest in the vehicle shall be provided with an opportunity for an immobilization or poststorage hearing pursuant to section 28-3514.

Sec. 10. Title 41, chapter 12, article 2, Arizona Revised Statutes, is amended by adding section 41-1724, to read:

THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND IS ESTABLISHED CONSISTING OF MONIES DEPOSITED PURSUANT TO SECTION 11-1051 AND MONIES APPROPRIATED BY THE LEGISLATURE. THE DEPARTMENT SHALL ADMINISTER THE FUND. MONIES IN THE FUND ARE SUBJECT TO LEGISLATIVE APPROPRIATION AND SHALL BE USED FOR GANG AND IMMIGRATION ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL IMMIGRATION.

A. If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

B. The terms of this act regarding immigration shall be construed to have the meanings given to them under federal immigration law.

C. This act shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.

This act may be cited as the "Support Our Law Enforcement and Safe Neighborhoods Act".

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