Musings on Immigration

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There They Go Again--The Georgia Legislature and Immigration

This week both branches of the Georgia State Legislature have been busy in trying to pass anti-immigration legislation. The curious part of their efforts is what appears to be a complete lack of communication between the branches and what their specific purposes are.

THE GEORGIA HOUSE DISSES THE GEORGIA SENATE

On Monday, the Georgia House completely eviserated the Senate version of the anti-immigration legislation by substituting, in whole, for the entire SB 40, with what it was HB 87. Unfortunately, the committee chair and the bill's sponsor were not completely truthful with the public, or with their committee members about the actual content of the "new" SB 40, better known now at HB 87 "Heavy." Sections 1 through 9 of HB 87 and HB 87 Heavy are identical. Section 11 through 18, and Sections 20 through 22 also are identical. BUT, there are two significant and otherwise unnoticed changes in Section 10, and in Section 19.

First, in Section 10, the House has added an entire new section of the Georgia Code, to be known as 16-11-203. You will find this language in the last paragraph of Section 10:
The testimony of a witness with knowledge of any officer, employee, or agent of the federal government having confirmed that a person is an illegal alien shall be admissible to prove that the federal government has verified such person to be present in the United States in violation of federal immigration law. Verification that a person is present in the United States in violation of federal immigration law may also be established by any document authorized by law to be recorded or filed and in fact recorded or filed in a public office where items of this nature are kept.
What does this mean? For those lawyers out there the meaning is clear. Hearsay evidence can now be used to put people in state prison for fifteen years! For potential criminal defendants, you no longer have the right to face your accuser! No right to prove to the person who said you were in violation of federal immigration law that they are wrong. And, we all know about how wrong the federal databases can be, about how complicated immigration law is, and how difficult it is to ascertain whether someone is "illegal" in the United States. Obviously, the Georgia State Bar should get immediately involved, as should the criminal defense bar, to stop what is a wholesale sellout of the criminal justice system.

To give you an example as to how broad this language could be: E-Verify is a government database. E-Verify determines employment eligibity, but since it ties into the USCIS database, it is arguably a database that can be relied on to verify status. An employer who enrolls in E-Verify, has an agreement with DHS, and is thus an "agent" of ICE (read the MOU). Can the Georgia court rely on the testimony of an E-Verify employer about a person's non-eligiblity for work to convict someone of transporting, harboring, or inducing an alien? Clearly, that is what the House is hoping for if this language remains in the bill. Or did they have other motives? We do not know, becuase Chairman Golick and Rep. Ramsey did not allow any questioning or review of the bill or public testimony on it before it was passed summarily out of the House Judiciary Committee!

Section 19 of HB 87 Heavy is also different from HB 87. In the addition of Section 50-36-2 to the Georgia Code, subsection (e) is amended to add a new sub-subsection (8) and push the prior sub-subection (8) down to sub-subsection (9). The new sub-section (8) reads, refering to who this code section does NOT apply to:

Paragraph (2) of subsection (a) of Code Section 40-5-21 or paragraph (2) of subsection (a) of Code Section 40-5-21.1;
What the heck does that mean? The first part refers to this language within the statute governing who are exempt from carrying a Georgia driver's licenses:
(2) A nonresident who is at least 16 years of age and who has in his or her immediate possession a valid license issued to him or her in his or her home state or country; provided, however, that any restrictions which would apply to a Georgia driveŕs license as a matter of law would apply to the privilege afforded to the out-of-state license;
The second reference is to this language allowing FOR a grant of a driver's license to specific people who present evidence of their specific immigration status:
2) A pending or approved application for asylum in the United States;
Now, that is quite interesting. People who have a pending or approved asylum application, or who have a foreign license are now NOT subject to the provisions of Secure and Verifiable Identity Document Act? I guess that everyone who is undocumented in Georgia should not apply for asylum? Or, if I am undocumented person from Zimbabwe, and I manage to get a Zimbabwean Driver's License, I do not have to produce any other id? Or if I move to Utah, get a Utah Driver's Privilege Card, and then "visit" Georgia, I am also not subject to this Act? Really? And, how are the police to know where the person actually lives? Why would Representatives Ramsey and Golick make these changes? Under pressure from the "KIA Go Home" folks? Again, no one knows, since there was no public hearing, and they both said there were no changes to the bill from HB 87 to HB 87 Heavy. So, they either lied about the changes, or someone snuck them in without them knowing about them. Curious minds would love to know who!

Nonetheless, my other comments about the bill remain the same. Parts of it are blatantly unconstitutional, others are legal but bad public policy. In a blog I hope to have up tomorrow, I will go through the Constitutional arguments in detail, but suffice it to say, that if HB 87 becomes law, it will see the inside of a courtroom before it sees the light of day.


THE GEORGIA SENATE TAKES A SMALL STEP BACK FROM THE BRINK (NOT REALLY)

On Wednesday, at a hearing of the Senate Judiciary Committee which FAILED TO PROVIDE NOTICE OF THE CONSIDERATION OF HB 87, the Judiciary Committee voted 4 to 4 to not pass HB 87 out of committee. But wait! To the rescue (for the anti-immigration forces), rode in State Senator Jeff Mullis, who is NOT a member of the Judiciary COmmittee, and who is not even an Ex-Officio member of the Judiciary Committee, and cast a 5th and deciding vote FOR passing HB 87 out of committee for consideration by the full Senate. Wow! Is that legal ? (Probably not, but legality appears to be the least of the problems here).

The Senate Judiciary Committee, apparently, not taking too kindly to being dissed House Judiciary Committee, in turn also submitted a substitute bill for HB 87. Let's call this one HB 87 "Light." HB 87 Light takes it basic sections from SB 40. HB 87 Light has a significant number of changes to the House passed version of HB 87, but not enough to make it a bill any legitimate politician should be proud to be a part of.

Section 2 of the HB 87 Light is taken from Section 1 of the Senate passed SB 40 (by adding a new Section 1 with the misleading title of the "Illegal Immigration Reform and Enforcement Act of 2011." Is someone reforming illegal immigration?). There are no effective changes in Section 2 of HB 87 Light from SB 40.

Section 3 HB 87 Light is likewise identical to Section 2 of SB 40.

The real changes occur in Section 4. Section 4 is actually the language found in Section 7 of HB 87 Heavy, creating the NEW crime of Aggravated Identity Fraud (College kids making up an ID to get a job at a bar). (That is what it is for, no?). Similarly, Section 5 of HB 87 Light is identical to Section 8 of HB 87 Heavy, which creates a 15 year state criminal sentence and a $250,000 fine for anyone using a fake id to get employment. Unfortunately, I did not find the budget appropropiation that appears to be needed to accompany this bill, which is necessary to build more prisons to hold all the people that will be convicted under it. Finally, Section 9 of HB 87 Light is identical to SEction 9 of HB 87 Heavy, and creates exempetions to the crime created in Section 4.

Section 7 of HB 87 Light is virtually identical to Section 10 of HB 87 Heavy, and is the Section which creates the crimes of harboring, transporting and inducing of undocumented immigrants in Georgia. Apparently, no one bothered to tell the Senate that the House Judiciary Committee had added that new section 16-11-203 to their version of the bill, and thus, the sections are not identical. Perhaps, the Senate just felt it was not necessary to eviserate 200 years of jurisprudence and allow hearsay evidence to convict people and send them to prison for 15 years?

Actually, we do not know what the Senate Judiciary Committee thought about this bill, because they had NO debate on it, no consideration of these changes, no public testimony about the bill, and basically railroaded it through to the vote in about five minutes. Remind anyone of Wisconsin?

Okay, back to the Bill. Section 8, 9, 10, and 11 of HB 87 Light are identical to Section 11, 12, 13, and 14 of HB 87 Heavy. Of course, section 8 of HB 87 Light is Section 11 of HB 87 Heavy, and is the section that forces local police to abandon its policy of community policy and having the public trust police officers, by making "peace" officers (a more broad term than the police), run immigration background checks on persons he or she stops to investigate for crimes (including traffic offenses, such as having to darkly tinted windows). The counter argument from the anti-immigration people is that this is not unconstitutional becuase they have prohibited profiling. As my kids would say: "whatever." More to follow on that in my next blog.

These Sections also still deal with the fiction that counties are not cooporating with ICE enough, and they must be told to do so again (even though Secrure Communities will be fully online in Georgia within 18 months).

A small substantive changes to HB 87 Heavy occurs in Section 12 of HB 87 Light. In section 12 of HB 87 Light, which takes its structure from Section 17 of HB 87 Heavy, the Georgia Senate has decided to adopt in full the language from HB 87 Heavy that requires that before a business of more than 4 employees obtains a business licnese, they must prove that they have enrolled in E-Verify. The whole debate supporting agriculture, apparently was ignored now by the Senate, which apparently no longer cares that it will effectively destroy large parts of Georgia's largest business. One, difference in Section 12, is key, however. The Senate version does NOT have subsection (d) which requires government entities to send a report to the Department of Audits each year confirming they are complying with the new requirements. Other sections within HB 87 Light are simply re-lettered and reordered, but are not effectively changed in any way.

Section 13 of HB 87 Light is identical to Section 15 of HB 87 Heavy, and still requires that individuals detained by the local law enforcement check the immigration status of detainees. This is already being done in most of Georgia. Section 14 of HB 87 Light is identical to HB 87 Heavy.

Section 15 of HB 87 LIght 15 merely adds the term "agency head" to a preexisting list of public officials and businesses that can be fined for violations of Georgia's Code of Ethics. I could not find a similar section in HB 87 Heavy.

Section 16 of HB 87 Light is adopted from Section 2 of HB 87 Heavy, but makes some substantial changes. As you may recall HB 87 Heavy, under pressure from D.A. King, has created a private right of action against local governments, to allow him to sue to enforce the requirements that local governments enroll in E-Verify, use the SAVE System for benefits, and to not create a Sanctuary Policy, even though all of these things are already being done by the local governments, and no place in Georgia has a sanctuary policy. Section 16 eliminates that private right of action, and simply makes the Attorney General responsible for enforcing complaints of non-compliance brought by citizens. Frankly, this is a much more sensible approach to this non-issue.

Section 17 of HB 87 Light has no related section in HB 87 Heavy. This section disallows deductions for wages or labor services for state income tax purposes unless the individual is an unauthorized employee. It has some HUGE exceptions.

1. It does not apply to an employee hired before January 1, 2012.
2. It does not apply to persons who are not directly compensated (contractors); and
3. It does not aply to folks who have a Georgia Driver's License.

Frankly, it seems like it does not apply at all!! While some would say that this is the carrot approach to urging businesses to use E-Verify, all it really does is create situations where "independent contractors" are used, rather than employees. This, of course, creates other issues, but is, nonetheless a loophole large enough to drive a semi-tractor trailer through.

Section 18 of HB 87 Light also has no related section in HB 87 Heavy. This section merely creates the definition of "Agency Head," which apparently never existed previously, and which is a BROAD defintiion designed to capture as many public officials and employees within its grasp as possible, in the context of accepting "affdivaits of residence" for benefits in Georgia.

Section 19 of HB 87 Light is also without a counterpart in HB 87 Heavy. It merely changes some wording of an existing statute related to the affidavit of lawful presence currently required for receiving public benefits in Georgia.

Along the same vein Section 20 of HB 87 Light (with no HB 87 Heavy counterpart), creates a new crime/sanction category for "Agency Heads" who fail to abide by the requirements of accepting this Affidavit of Residence. I have heard of no evidence to suggest that this is an issue anywhere in Georgia, but who said the legislature actually need to facts to supports it actions!

Section 21 of HB 87 Light is almost identical to Section 19 of HB 87 Heavy, and creates the "Secure and Verifable Identity Document Act." Again, much like the changes that the House Judiciary Committee made in Section 10 of HB 87 Heavy that were not communicated to the Senate, no one told the Senate that the House had added a new provision in this Section, excempting asylum applicants, asylees, and folks with foreign and other state's driver's licenses from the effects of this bill.

Section 22, 23, and 24 in HB 87 Light are identical to HB 87 Heavy, in that they contain a severability clause and effective dates. Good thing, becuase that severability clause will come in handy when parts of this bill are found unconstitutional!

The bottom line on the actions by the Senate in creating HB 87 Light--

It is kinder to local governments;
It is not any kinder to businesses;
It does not mean that Georgia business will compy with E-Verify;
It still is designed to scare immigrants of all kinds out of Georgia;
And,
It still says that Georgia is the Arizona of the South.

Let's tell the Senate that these cosmetic differences CANNOT change the simple fact that this bill is a failure. It will not accomplish what they want it to accomplish, but what it will do is drive jobs out of Georgia, create a climate of fear in ALL immigrant communities, regardless of status, and will give Georgia a national black eye that will linger for a long time in the eyes of America. Georgia should follow the lead of Colorado, Mississippi, Kentucky, Kansas, and Nebraska and stop this legislation before it is too late. True reform lies only in Washington, D.C., and these legislators should better spend their time convincing our Congressman to act, rather than passing illegal and bad public policy.









Why Smart State Legislatures Are NOT Passing Immigration Bills

We all read that the Arizona legislature has had its fill of anti-immigrant legislation, backing off passing any of the unconstitutional, anti-immigrant legislation proposed by immigrant basher-in-chief State Senator Russell Pearce. Now Kansas, home to the author of all of this anti-immigrant legislation, Kris Kobach, is the latest state to "just say no" to immigrant bashing legislation. We know why the Arizona legislature decided to not enact their most recent proposals--the Arizona economy has been devastated by SB 1070 passed last year, and the business community finally had enough--hand delivering a letter to each state legislator saying to stop the immigrant bashing.

In Kansas, a coalition of forces, including business leaders, community leaders, law professors, and religious leaders joined forces to point out ALL of the legitimate reasons why anti-immigrant legislation was tabled this week. The Kansas Business Coalition, lead by AILA member Allie Devine, is a group of twenty trade groups that was committed to defeating the bill. AILA members Angela Ferguson and Anthony Weigel,volunteered to help the Coalition with legal research, general immigration information, and background on other state’s efforts. AILA members also worked closely with Immigrant and Civil Rights Interest Groups to coordinate resources and key legislative contacts.

As Anthony Weigel, an AILA member and vocal opponent of this legislation noted:

There were three valid reasons for the bill’s failure. First, proponents failed to provide a financial impact estimate worth considering. Kentucky, a comparable state, estimated a net cost of $40 million for a similar bill. Second, succinct and persuasive evidence was presented by a UMKC law professor that the bill involved an incredibly unsettled area of the law, federal preemption, and the risk and costs of litigation could be avoided by not proceeding with the bill at this time. And third, as stated by the Kansas Business Coalition, if simple solutions existed, we wouldn’t have today’s problems.

Kansas has now joined Colorado, Nebraska and even Arizona in tabling these anti-immigration provisions. Kentucky has put the cost of its Arizona style bill (which is much like Georgias) at least at $40 million (and perhaps as much as $90 million dollars)! Look for that bill to die a quick death shortly.

Georgia legislators should take a clue from all of the national movement AGAINST state based anti-immigrant legislation by their colleagues in other legislators. In Georgia, united groups in the business community, religious leaders, legal scholars and lawyers, as well as community groups from throughout the political spectrum oppose HB 87 and SB 40. Governor Deal has noted his concern with this legislation. How can Georgia legislators continue to push for a bill that will create more problems then it can hope to cure? And that they know will cost the state a fortune to enact and defend in court?

We already know that the Georgia House sponsors of HB 87 are incapable of giving the legal reasons why their legislation is not unconstitional, and that they refuse to discuss the real and quite savage economic impact of this bill on the Georgia economy should it pass. So, why is this bill moving forward? We still need the business community, through the Chambers of Commerce, to speak out publicly, vocally and loudly and demand a stop to this nonsense. While it is clear that business prefers to work quietly and behind the scenes with state legislators, it is also clear from what has happened in Arizona and Kansas that unless the business community starts getting VOCAL about their opposition to these bills (and not just because E-Verify is burdensome), then the march to litigation will proceed (I say this because if Georgia passes any anti-immigrant legislation lawsuits will be filed against their enforcement on preemption and constitutional grounds.)

Let's take the lessons learned in Arizona, Colorado, Nebraska, Kentucky, and Kansas. Let's work together as businesses, faith based organizations, community supported advocacy groups, and people who know and love immigrants for who they are--good people who make America stronger and better. Georgia is better than HB 87 and SB 40.

Broken immigration laws do not mean Broken People.

Georgia Republicans Afraid To Debate Their Own Bill?

It appears that the two Georgia Republican sponsors of the Arizona Copycat Legislation, HB 87, have backed out of an appearance with two Democratic opponents to this job-killing bill on Wednesday, March 23 at the Georgia State University Law School. The focus of this particular debate was to be the cost of HB 87, something these Republicans have refused to acknowledge or discuss. In fact, when I directly asked them this question during my testimony at the Judiciary Committee hearing in the House last month, all I received back were blank stares.

On Wednesday, March 23, 2011, this event was planned:
On Wednesday, March 23, 2011 from 5:30 to 6:45 pm, four lawmakers from the GA General Assembly will come to GSU College of Law for an event entitled "Can Georgia Afford It? The Costs of Passing Immigration Laws at the State Level."**

The event will cover HB 87, also known as the “Illegal Immigration Reform and Enforcement Act of 2011.” This bill is the subject of much controversy, as it contains many provisions similar to those in Arizona's highly disputed SB 1070 immigration law.

The panel will include Rep. Matt Ramsey (R-Peachtree City); Rep. Rich Golick (R-Smyrna); Rep. Scott Holcomb (D-Atlanta); and Rep. Pedro “Pete” Marin (D- Duluth). The discussion will be moderated by Prof. Neil Kinkopf of GSU College of Law, with an aim toward providing a balance of information about the legislation.
Suddenly, a few days before the event the two Republican panelists withdrew from the event. The reason these two elected state legislators gave for backing out of their planned appearance (when they knew the date and topic of their appearance far in advance) is odd to say the least. These two legislators said that they wanted to:
"defer this event until a more appropriate time after the legislation is enacted."
Think about it. They do not want to publicly debate a Bill until it becomes law? They even averred that the only place to debate this bill is in the actual "Gold Dome!" These are the same folks who complained about the Healthcare Bill debate in Congress? Can anyone say hypocrite? Public debate by knowledgeable parties is absolutely essential in a free society.

Nonetheless, the debate is cancelled. Some would say these two Republicans simply chickened out--they are afraid to talk about what their bill means to a neutral audience. Others would say that both of them were simply ill-prepared to talk about the most important elements of their bill--how much it will cost the taxpayers of Georgia, and how much damage it will do the State's struggling economy. They both can repeat the half-true mantra of the anti-immigrant groups that illegal immigration costs the state $2.5 billion dollars a year. But neither seem willing to acknowledge that the presence of these undocumented workers AND their families, contributed more than $400 million in direct taxes, and more than $10 billion in economic output. Remove these people from the economy, as Ramsey and Golick want to do, and what happens to our economy as a whole? Broken immigration laws do not mean broken people. If these two really wanted to fix this "problem" they would get on their horses and get to Washington, D.C. and start demanding a fix to our broken immigration system.

Let's face it, HB 87 is an economic nightmare for Georgia. HB 87 will increase city and county taxes, as these entitites struggle to meet their new enforcement obligations. HB 87 will increase business expenses, as tens of thousands of small business have to step through another government run roadblock to hire workers. HB 87 will add millions in enforcement expenses to county law enforcement as they begin pulling people over and arresting folks they do not think are legal because they do not have their "papers" with them. And that is not to mention the impact that HB 87 will have on the Georgia's tourist industry, restaurant industry, manufacturing industry, and economic development industry.

Simply put, Representatives Ramsey and Golick are both ill-prepared to defend HB 87 in a free and open debate, and simply do not have the facts to support their rationale. That is, ultimately, the reason they have cancelled this opportunity for Georgians to see what is really going on at the State Legislature.



Utah, What Have You Done?

Much has been made recently of the Utah Legislature's efforts in regards to passing a "balanced' immigration bill. Specifically balancing the hatred and bias of an Arizona "style" immigration enforcement bill, with a bill which purports to grant legal status to undocumented people and creates a temporary worker program.

The impact of this legislation just hit home here in Georgia. A client just came into my office to ask about getting the "Utah Green Card." This is exactly what I was afraid of when I talked with the folks in Utah about the proposal they were formulating to counter the anti-immigration legislation that was enjoying so much publicity. The Utah legislature has created a myth, a myth that will only grow bigger as rumors of the "Utah Green Card" circulate in all immigrant communities around the U.S.

What does this mean for immigrants and for Utah? I have no doubt that if the Governor of Utah signs this legislation that a LOT of people will be moving to Utah in search of this elusive "Utah Green Card." People do not realize that the Utah legislature has enacted a law that gives the impression of giving hope to the hopeless, when in reality this hope is false. The Federal Government is never going to allow Utah to run its own guest worker program, and certainly will not allow Utah to permit people to work with the "Utah Green Card," who are otherwise unable to fill out an I-9 or pass an E-Verify check (which is also mandatory under the Utah law).

I certainly appreciate the good motives that were behind this legislation, and I suppose the real purpose of this legislation was to ameliorate or even stop the Arizona style bills that have now passed through the same legislature. But all Utah has done is pass Arizona style laws without any upside, since the purported upside is nothing but an illusion.

Immigration lawyers around the country will now start fighting the battle of truth. The battle to tell people that despite what they have heard, that there is no "Utah Green Card." That the law gives no effective benefits, and that by trying to obtain such a card they will do nothing more than flush their money down the drain.

All that said, I applaud the Legislators, the Business Community, the Churches, and the Conservative groups in Utah who stood up for what was right and just. They were all doing what they felt Congress had not done--fixing our broken immigration system. Unfortunately, there is only one organization that can do that. Until Congress acts, under REAL leadership from President Obama, we will keep fighting these state fights and we will keep having to tell our clients that what they hear and see is not real, but rather, an illusion.

An Open Letter to Georgia House Speaker David Ralston on HB 87

Dear Speaker Ralston:

Likely coming up for a vote this week is HB 87, a piece of legislation entitled the "Illegal Immigration Reform and Enforcement Act of 2011." This bill is misnamed, as it does not reform illegal immigration and it does not increase or better enforcement against illegal immigration over current state and federal law. I strongly urge you to table this legislation until the sponsors of this legislation comply with state law and provide a Fiscal Note for this legislation, and even more importantly, provide their fellow legislators the factual basis for the onerous, tax increasing, unconstitutional, and economy destroying provisions in this bill.

I understand that the Georgia Legislature believes it must do “something” on immigration in this session. But “something” need not be legislation that destroys Georgia’s image as a welcoming state, that impedes our state’s ability to attract foreign investment, increases the burden on local governments, and which will certainly deal a severe blow to international tourism. In fact, even in light of recent changes to this bill by the sponsors, the bill still will result in local and likely state tax increases on every resident of Georgia. It creates increased government regulation, still creates unfunded mandates for every local government, creates unnecessary crimes with extraordinary punishments, and results in little, if any real change on the issue of illegal immigration.

HB 87 is Premised on Myth and Innuendo, Not Facts

HB 87 is premised on the oft stated notion that the “Federal government is doing nothing on immigration.” This statement is false. The federal government is doing more than it has EVER done in enforcing the laws on undocumented immigration. The Obama Administration is spending literally billions of taxpayer dollars building fences, hiring border patrol agents, detaining undocumented immigrants and actually deported almost 400,000 people last year—a record. The Obama administration has extended Secure Communities to virtually every part of Georgia, with plans to have Secure Communities in place in every Georgia county within the next 18 months. The Obama administration is rapidly expanding its employer sanctions program, with dozens of employers under investigation in Georgia right now over their immigration related hiring practices. How is this “doing nothing?” Frankly, saying that the Federal government is doing nothing on illegal immigration is an insult to the men and women serving our country working at Immigration and Customs Enforcements (ICE).

HB 87 also DOES NOT create any greater degree of enforcement than already exists under current state and federal law. By September 30, 2012, everyone arrested today in Georgia will be run through the Secure Communities program, and if they are unlawfully present in the United States they will be held for ICE (Immigration and Customs Enforcement) to pick up within 48 hours. SAVE is already used by every state and local government agency to screen for benefits. E-Verify is already used by every county and virtually every local government in Georgia. All of these were mandated previously under SB 529. And all of these laws have been followed.

So, if this bill does NOT reform immigration, does NOT effectively increase enforcement, and does NOT make Georgia safer, why is the legislature considering it without considering the details and impact of HB 87

The Impact of HB 87

The apparent principle purpose of HB 87 is to make life so miserable for undocumented immigrants that they will leave Georgia. You can take nothing no other meaning from this bill. It is estimated that 450,000 people living in Georgia do not possess documents to prove that have legal status to be in the United States. Many of these people are husbands, wives, fathers, mothers, sons and daughters of U.S. citizens. Even having that relationship entitles someone in the United States without papers to no immigration benefits. If only one-half of them were married and had one child, that amounts to more than one million people. What if one million people left Georgia today? What would that do to our state’s economy, tax base, and society? While most illegal immigrants live and work under the radar in Georgia, they have created an indelible economic footprint here, according to a number of experts:

· They account for about $9.4 billion in a state economy of roughly $320 billion.

· They contribute between $215 million and $253 million to state coffers in the form of sales, income and property taxes.

· They account for 6.3 percent of Georgia’s work force, but in some industries they are the lion’s share of workers. Experts estimate that 40 percent to 50 percent of the workers in agriculture — the state’s largest industry — are illegal. See AJC 7/29/10.

If this bill accomplished its purpose—to drive 1,000,000 people from the state--we could rest assured that it would result in their tax dollars, investments, talent, and businesses leaving the state as well. How would the state face that type of revenue reduction?

A Section by Section Review of HB 87 Reveals the Lack of Impact of this Bill

Generally speaking, there are parts of HB 87 that are constitutional and which no court, state or federal will stop from implementation. There are also still at least two provisions of HB 87 which will never be enforced, and which will be struck down as unconstitutional before they go into effect, for the same reasons that similar provisions in the Arizona bill were struck down—Federal Preemption and Constitutional violations.

For those provisions of HB 87 that WILL be in effect and stand no chance of being stopped by a court, we are still missing a Fiscal Note. It is fiscally irresponsible to consider this bill without also considering how much this bill will cost if fully implemented, and its purposes effectuated. HB 87 will affect the budget of the State of Georgia, and perhaps more important will result in necessary tax increases and/or service reductions at the local government level.

TITLE II

The recent substitute to the bill not only changed the section numbers, but added “Titles” to the sections of the bill. Title II of the bill is “Private Cause of Action for the Enforcement of Provisions to Prevent Illegal Immigration.” I have some bad news for the sponsor. Nothing in Title II prevents illegal immigration! “You can fool some of the people all of the time . . . . . .”

Section 2—Private Lawsuits Against Local Governments

Section 2 of HB 87 permits any legal resident of the state to sue any county, city, town or village which does not enroll in and USE E-verify for all of its new employees. E-Verify is the voluntary federal employment verification system with a 96% accuracy rate. Under current Georgia law every local government is required to be enrolled in and use E-Verify. I believe that now, every Georgia County is enrolled, and virtually every local government. What this section does is open up the courts to private individuals, over 21, to sue any county, city, town or village, which is not using E-Verify, or which the person suspects is not using E-Verify. If the litigant is successful, they are able to recover all their attorneys’ fees, and the polity will have to pay the local law enforcement folks a fine to be used to train its officers in immigration law enforcement. The sponsor added a provision in the substitute bill the requires potential litigants to give the local government 30 days’ notice of the purported violation occurring within the previous six months, and then give the local government 30 days to correct the problem and get back to the litigant. BUT, the litigant can still sue. The local government can then hire attorneys to file a stay of discovery and a motion to dismiss. This additional notice was supposedly added to protect local government from frivolous lawsuits. It fails to do so.

The first major issue with Section 2 (and similar provisions in Section 4 and 5), is the odd provision that the person suing must be 21. That violates current state law, and will be struck down immediately by any court. The second obvious issue with this provision is that a group of anti-immigration activists will begin suing every polity in the state. The lawyers can take these cases on contingency, because when successful, they are going to get paid by the polity. Does this sound like a recipe for a fiscal nightmare for local governments? The thought that the notice requirements will stop counties from expending valuable resources in court defending itself is a fallacy. They will still have to hire attorneys to defend themselves, and only a select few of the largest counties have full time attorneys on staff to handle such lawsuits. The REAL purpose of this section is to scare local governments into enrolling in and using E-Verify, under the threat of litigation, thus making each polity have an employee identified under E-Verify as an administrator, receiving training and spending our tax dollars to do something the county is already doing as part of the Form I-9 verification process.

Finally, the third major issue with Section 2 is that this law is also being pursued without there being ANY evidence that any county, city, town or village in Georgia has hired someone who is undocumented, or is not NOW currently enrolled in E-Verify! Not a single fact has been produced by the committee in any public hearing justifying this section.

Section 3 – The Attorney General Can Bring Actions Against Local Government for violations of E-Verify Rule

Frankly, this section is solid. I do not know of anyone who would oppose the Attorney General doing the job he is elected to do, making sure Georgia’s laws are obeyed. By keeping Section 2 in this bill, when Section 3 is there, is like saying we do not trust the Attorney General to do his job. Delete Section 2 from this bill, and leave Section 3 in. You solve the problems inherent in Section 2, and still accomplish the purpose.

Section 4 – So-Called “Sanctuary Cities” and Private Lawsuits

Similar to Section 2, Section 4 of HB 87 allows private lawsuits against any local government for violation of Georgia’s already existing anti-sanctuary law. Obviously, all of the problems associated with allowing private rights of action remain true again in Section 4. But, there are additional facts (or non-facts) to consider. First, there is no local government in Georgia with such a sanctuary policy. Second, there was no evidence presented by or to the committee in public hearings that there is such a policy anywhere. Simply put, there is NO factual justification for the creation of a private right of action against local governments. If you believe it is so important to have some enforcement mechanism in place, why not replicate Section 4 here, and give the Attorney General the authority to enforce violations? If you allow this continued private right of action, this will result in taxpayer dollars being spent on unnecessary litigation. That, by necessity, will result in increased taxes or reduced services.

Section 5 —SAVE Usage and Private Lawsuits

Section 5 of HB 87 again creates the threat of litigation to any local government in Georgia that does not use the USCIS-run SAVE system to verify immigration status of U.S. citizens prior to giving any state or local services. SAVE is an inherently unreliable database which causes delays of more than 30 days in verification for more than 10% of the users of this system, depriving folks of entitled services, driver’s licenses, and business permits. That is bad enough, but you also have to understand, that there was NO evidence presented at the committee hearings by anyone of actual use of state services by undocumented immigrants. There was plenty of innuendo, but no facts. You and I both know that we are all entitled to our own opinions, but not our own facts. Since 1997, it has been illegal in Georgia (and the United States) for anyone who is not a U.S. permanent resident or U.S. citizen to receive any public benefit (this does not include federal mandated rights, such as emergency medical care or K-12 education). Without repeating everything that was said previously, this means your taxes are going up, or your services are going down. And, note that there is no down side to being wrong about the facts when bringing these lawsuits. This is NOT a loser pays statute. The plaintiff here can just sue and sue and sue with impunity.

Section 6—The Attorney General Can Force Compliance with SAVE

Frankly, this section, which is similar to Section 3, is likewise good. The Attorney General should have to power to ensure that local governments are complying with state law and mandates. By keeping Section 5 in this bill, when Section 6 is there, is like saying we do not trust the Attorney General to do his job. Delete Section 5 from this bill, and leave Section 6 in. You solve the problems inherent in Section 5, and still accomplish the purpose.

That completes Title II of the HB 87. You can shorten this bill by three sections, authorize the Attorney General to enforce these mandates, and still accomplish the purpose of the bill. Why would you do it any other way?

TITLE III

Title III of the bill is entitled “CRIMINAL OFFENSES.” Title III contains several new crimes, with flawed definitions, which will make criminals out of law abiding citizens, will criminalize the efforts of Churches to reach out to minority communities, and could very well result in filling our state prisons with people who simply want to feed their families. Is any of this good public policy and do any of these laws really have any effect on undocumented immigration?

Sections 7, 8 and 9 – Seeking Employment With Untrue Information

Section 7 creates the crime of “Aggravated Identity Fraud” by making it illegal to use fake documents, even of an invented person, to obtain employment in Georgia. There is already a federal crime in place for using fraudulent information to complete a Form I-9. But the law is specific, detailed, and easy to understand. There are also, obviously, laws already on the books prohibiting and criminalizing identify theft. So, the only real change with this law is that of making a private contract (employment) illegal, if the person does not use their real name. This new crime does NOT require the use of any fraudulent documents, only information. Potentially, this law is written so broadly, that it will criminalize married women using their maiden names, criminalize people using their middle, but not first names, etc., in order to secure employment. By criminalizing employment the state legislature takes a bold step into a new territory. Further, since this is a criminal statute, it can only apply prospectively, and thus will only impact future hires with companies. It does nothing to effect folks who are already employed using made up identities. I also question how the State will find out about the violations of this crime. Is the state expecting employers to notify the county attorney when they suspect someone is using a false identity? Is the county attorney prepared to investigate and prosecute these cases? How much will this cost?

Section 8 makes this new crime created in Section a FELONY, punishable by at least one year and as much as 15 years in state prison, with a fine of $250,000! Think about it. Are we so wealthy as a state that we can afford to potentially jail 450,000 people for working with fake documents? Obviously, the sponsor believes there will be a deterrent effect as a result of criminalizing this behavior. But think about it—use fake documents to get a job to feed my family, or don’t feed my kids? Which would you do? I do believe that anyone caught stealing someone’s identity needs to be punished, but criminalizing employment? This is not good public policy.

Section 9 of HB 87 includes this new crime within the exceptions provision of OCGA 16-9-128, which provide good faith exceptions, as an affirmative defense to the crime, including the “good faith use of identifying information with the permission of the affected person.” Does that mean that if I have someone’s permission to use their identity I cannot be convicted under this statute? The provision seems out of step with the actual intent of the statute and nonsensical when compared to the statutory structure into which this new crime is created.

Section 10--- Transporting and Harboring of Undocumented Immigrants

Section 10 is the old Section 7 of HB 87, which now no longer takes the vehicle away from anyone who is caught driving a day laborer for whom they have not verified documentation. But this new crime still fines that person between $5,000 and $20,000, and puts them in jail for at least one year, and possibly for as long as five years for a second violation.

This first part of Section 10 creates a new Article (5) in OCGA 16-11-200. The new crime section also makes it illegal to transport an “illegal alien.” But this new crime has to be committed in a certain way in order to be an actual crime. Specifically, the person “transporting” (although transporting is not defined here), or “moves an illegal alien in a motor vehicle for purpose of furthering the illegal presence (also not defined) in the United States” is guilty of the offense. This new code section also defines the term “illegal alien” to include ONLY “a person who is verified by the federal government to be present in the United States in violation of federal immigration law.” That means that in order for someone to be convicted under this code section, the person transporting must have actual knowledge that the federal government has verified the person they are transporting to be in violation of federal immigration law, BEFORE they transport them. At least, that is how this statute is written. Now, that is not likely the intent of the sponsor of this legislation, but that is how he wrote it. If this crime becomes law, very few, if any people will be able to be convicted under it. Further, the failure to define transporting, and furthering the illegal presence, are failures that are constitutionally defective.

But, let’s assume for a moment that this code section is read to somehow NOT require that the transportor have actual knowledge from the federal government that the person is undocumented. What then? Who does this law apply to? We know it does NOT apply to government employees moving undocumented immigrants around as part of his job. It does NOT include a person who brings an undocumented immigrant to a court hearing (presumably also immigration court hearing, although that is unclear from this statute). And it does NOT include a person who brings an undocumented immigrant to a law enforcement agency for official government purposes. Thus, by exclusion it covers EVERYONE ELSE.

Who does this include? Pastors or church members bringing a parishioner to church, while speeding (46 in a 45 zone) on their way there, are clearly guilty under this law, especially if there is a broad definition of ‘furthering the illegal presence.” I noted previously that there was no church exception to this provision, as there is in the federal law. And, this lack of a church exception remains even after impassioned testimony from leaders of the major denominations in Georgia before the committee hearing this bill. Why? At the very least, this provision MUST have a pastoral exception. The state should never legislate away mercy.

The second part Section 10 created the crime of “harboring.” To “harbor” someone is to engage in “any conduct that tends to substantially help an illegal alien to remain in the United States in violation of federal law.” Once again, there is no definition of “substantially helps,” which likely makes this new code section constitutionally defective. This law is so broad that it could EASILY be interpreted to mean that anyone renting property to someone who is undocumented goes to jail and pays a large fine. It includes anyone who helps a fellow church member out with a meal while failing to turn their blinker on while bringing it to that person’s house. And if I give advice to a client, I am could also be charged with harboring. While, I have no doubt this provision will be struck down by the courts, the better question to ask is, does this crime discourage behavior, or does it simply criminalize Good Samaritans? There is also not provision in this section to allow for the actual knowledge that the person is undocumented.

Of concern to me as immigration attorney is the provision in the harboring sections that exempts only three classes of people from its criminal effects. First, it exempts anyone providing services to infants, children, or victims of crimes. I do not believe that this exemption is anywhere broad enough to protect the people running battered woman’s shelters in Georgia. Who is a victim of a crime? Does a crime have to be reported?

Second, it exempts a person providing emergency medical services. That means anyone providing any other type of medical services is NOT protected. Doctors, nurses, therapists, etc., are all subject to criminal charges!

And, third, the exemption for criminal defense attorneys. There is no exception for immigration attorneys, or attorneys practicing workers compensation, accident law, etc. That means people who are undocumented who come to an attorney seeking help, even help to become documented under the law, are putting their attorneys at risk of arrest! Obviously, this provision is in direct violation of a person’s rights in the United States, regardless of immigration status, and will be struck down. But, this provision is evidence of the lack of foresight and consideration that went into drafting this bill.

Finally Section 10 of HB 87 creates a third crime, that of “inducing” a person who is undocumented, to enter Georgia. This means that anyone helping a relative or a family member move to Georgia can be prosecuted. For example, a U.S. citizen is married a lawful permanent resident. That resident has a brother who is undocumented. The U.S. Citizen invites the brother to live with them in Georgia for a short time. That U.S. citizen is going to jail. This provision does NOT criminalize human traffickers. Georgia already has provisions for that. This section criminalizes families. That is something we should never do.

In summary, Section 10, when challenged, will be at least partially unconstitutional. It will result in housing discrimination. It will result in series of prosecutions of lawyers. It will result in profiling and racial discrimination. It will result in churches and their leaders brought before the criminal courts. It will result in lawyers being prosecuted. The legislature here is directly telling Georgia businesses that they not only must do the already mandated Forms I-9 for each short or long term employee, but also they cannot necessarily believe the documents presented. Do you not believe that a Georgia law enforcement officer or prosecutor will not say, “how could you have believed that THESE documents were real?” Section 10 will be very bad for business in Georgia. It will be very bad for property owners in Georgia. And it will be very bad for anyone who knows or is related to an undocumented immigrant. Finally, there appears to be NO exemption for attorneys, other than criminal defense attorneys, such that someone who consults an attorney about fixing their immigration status may cause that attorney to be subject to fine or imprisonment for harboring!

TITLE IV

Title IV of HB 87 is entitled “Law Enforcement Officers and Enforcement of Immigration Law.” This first Section in this title remains preempted by Federal law and is clearly unconstitutional. The other provisions in Title IV are effectively fluff, and do nothing to change the laws of Georgia as they impact illegal immigration. There is no legitimate reason to have any of the section become law.

Section 11—Unconstitutional Police Stops and Reason to Believe

Section 11 deals specifically with the provision of the Arizona law that the Federal Judge found the most problematic—empowering law enforcement to investigate the immigration status of a person who they believe is undocumented. The law tries to change the language of the Arizona statute by saying the law enforcement officer must have stopped the “criminal suspect” and have “probable cause” to believe the person committed the crime before giving them carte blanche to then seek to verify the suspect’s immigration status if the suspect cannot produce one of the documents listed in the OCGA 50-36-2, or a driver’s license or state id card, or proof of legal status (of which there are dozens of varieties), or federally issued id documents, or “other information” to independently identify the suspect. The sponsor of the bill maintains that by taking out “reasonable cause” to believe a person is undocumented that he has cured the constitutional defect in this legislation. The contrary, he has made the law even more unconstitutional, because he has removed what could have been a basis for determining legitimate immigration inquiries, and turned it into a completely arbitrary process. And, while he has also exempted individual police officer from liability, he has not exempted county or local governments, who will be the subject of profiling lawsuits for the actions of their officers under this law. I would not want to be a police officer who has to enforce this law, because he either has to ask EVERY DRIVER he stops about their immigration status, regardless of what status the person “appears” to have, OR, he asks none of them. Any action in between will be the subject of a lawsuit.

More importantly, this particular part of the Arizona law was struck down because it was PREEMPTED by federal law, in that it impermissibly burdened the federal immigration authorities, and thus could not be enforced. Nothing about this version of the law changes that analysis, and by passing this legislation, the Legislature would be setting the state up for a lawsuit to defend. A lawsuit it will lose.

Further, this section EXPANDS the definition of criminal related stops to now include “traffic offenses” So, if you thought speeding was a simple traffic violation, think again. It is now a criminal offense in Georgia. And, what about passengers in vehicles, or other occupants of a house, or other people at the business? This provision has long reaching and very severe implications for anyone who is a friend of the Constitution.

Section 12--287(g) Everywhere

Section 12 of HB 87 makes it mandatory for every state agency to enroll in the federal government’s 287(g) program. In case you do not remember SB 529, enrolling in 287(g) is already a state mandate, as permitted by the federal government. Unfortunately, the federal 287(g) program places a number of restrictions on the entering law enforcement agency, including staffing, jail conditions and training that most applicants cannot readily meet. And which costs a counties a great deal of money to meet. Further, the federal government is only very slowly adding 287(g) agencies, instead focusing its efforts on expanding its Secure Communities initiative. The practical difference between the two programs is that 287(g) programs trains local law enforcement in immigration enforcement issues and effectively deputizes the officers to act in place of ICE in the context of immigration holds and bonds, while Secure Communities allows for the local law enforcement officials to verify immigration status, and then hold individuals subject to removal for 48 hours for ICE to pick, without training or deputizing them.

What Section 12 does, however, is once again increase the COST to the local government, without analyzing whether such a program is either necessary, effective, or, frankly, affordable. In reality, other than increasing costs, the section does nothing to change the current state of the law.

Section 13—Peace Office Immigration Training

Section 13 of HB 87, requires the State Corrections Commissioner to send at least 10 “peace officers” to be trained each year under 287(g), to be funded by the Homeland Security Appropriation Act, or other source of federal funding. This section is only effective if there is federal money. This appears to be a reverse unfunded mandate directed to the feds. The provision is meaningless, and can best be described as “fluff.”

Sections 14 and 15—Enroll in Secure Communities Or Else

Similarly, Section 14 of HB 87 requires that the state provide incentives to local communities to enroll in Secure Communities, something that all 159 counties in Georgia will be enrolled in by September 2012, “subject to available funding.” Since there is NO AVAILABLE FUNDING, this section is completely meaningless!

Section 15 of HB 87 requires that anyone detained in any state facility charged with any criminal offense, regardless of how long, be checked for immigration status. The provision is pure fluff in light of Secure Communities expansion. Again, there is no reason for these changes, as they make no effective change to current state law.

Section 16—Bribing Localities to Enroll in 287(g)

Section 13 of HB 87 states that if a county can show they are making efforts to enroll in 287(g), the state will add 10% to the rate of reimbursement for the detention of state prisoners in county facilities. Well, this money is not growing on trees. As noted earlier, there are certain standard levels of detention and staffing that an agency will need to show to be eligible for 287(g) enrollment. To take advantage of this reimbursement increase, the counties will have to spend serious money to get in compliance with federal standards. There is no Fiscal Note attached to HB 87, but clearly, there is going to have to be a tax increase, or service reduction somewhere to pay for this. Or, the provision is completely ineffective, and thus has no reason to be passed into law!

Section 17—Business Killer—Mandatory E-Verify for All Businesses

Section 17 of HB 87 is the real killer provisions for businesses and local governments in Georgia. This section requires that a business, in order to obtain any necessary occupational tax certificate (which all Georgia business must have to do business), must present evidence of E-Verify enrollment. The federal voluntary program of E-Verify is going to be mandatory in Georgia for all employers of more than 5 people by July 1, 2012. The question is, will businesses comply? The compliance scheme cooked up by the bill’s sponsor is to make the local governments the compliance agents, without assisting them financially in the compliance efforts. Businesses will have to complete compliance affidavits each year saying they intend to use E-Verify. Of course, there is nothing that stops the employer from signing the affidavit, withdrawing on 30 days’ notice from E-Verify, and then reenrolling in E-Verify the following year to obtain the business license. This discriminatory law also puts employers on an uneven playing field if they have more than 5 employees, or if all their employees are “independent contractors.” In fact, this provision is such a gigantic loophole that only those employers who would have voluntarily complied with E-Verify anyway, will actually be enrolling in it under this law.

Keep in mind that this same law became mandatory in Arizona more than four years ago, and to date only 35% of Arizona employers are enrolled. The reason is that that there was no effective enforcement of the provision. Georgia is now using local governments as the enforcers of this law, without providing them the means, funds, or training to do so. There is also a farcical provision in Section 17 that says that the State Department of Audits and Accounts will annually conduct an audit of no fewer than 20 percent of such reporting agencies, “SUBJECT TO FUNDING.” So, knowing that this bill provides no funding for this, and that there is Fiscal Note to make us aware of how much it would cost to do this, this provision is without merit.

As an alternative, why not have E-Verify as the goal for all Georgia employers by offering an incentive to enroll in E-Verify. You can offer preferential placement for government benefits, perhaps a lower one year tax rate, or some other type benefit. I would guarantee you would have greater compliance than the stick this section tries to yield.

Sections 18 and 19—Photo Id’s Now Needed for Everything!

Section 18 of HB 87 requires that anyone seeking a public benefit present a secure and verifiable document used by the federal government or a state government, with a photograph, showing they are a US citizen, or a qualified alien. Section 19 is known as the “Secure and Verifiable Identity Document Act.” Section 19 basically wants to eliminate the use of foreign ID documents for state benefits. What the sponsors of this bill never produced was evidence that such foreign id documents are in fact used for state benefit purposes! As of today, no state agency accepts any foreign id document, other than a foreign passport with evidence of lawful status, for any state benefit. The problems with this provision are numerous, and start from the fact that a minor has no photo id to get a benefit, to the fact that someone with a “valid” nonimmigrant status could actually be out of status for a myriad of reasons, and still qualify under this statute. The real purpose of this section is to exclude the use of the “Matricula Consular,” a document sometimes issued by Latin American governments as a photo ID. If that is the purpose of this act, why not just saw so, and not make a crime punishing only government workers who accidently accept such a document for identification purposes?

The rest of HB 87 deals with severability and enforceability, which are important since the bill as written has several provisions that will be unenforceable!

Mr. Speaker, the reality of this bill is hard to ignore. It is going to cause taxes to go up, services to go down, increase regulation, and hurt our economy and image, all without any evidence that any provision of this law will actually solve a problem in Georgia. I strongly urge to pull HB 87 from consideration. This bill is not the message that Georgia needs to be sending.

Very truly yours,

Charles H. Kuck