Musings on Immigration

The "Obama Amnesty" -- Too Good to Be True

2012-01-17T18:42:00.001-05:00

As reported extensively over the last two weeks, and in a way that was grossly misunderstood by the average person, the Obama administration plans toissue a regulation that would address a long-standing problem in immigrationlaw—a Catch 22 created by requiring the spouses and children of U.S.citizens who entered the country unlawfully to depart the U.S. beforecompleting the processing of their application for lawful permanent residence. Thetrouble is that once they leave the country, they are subject to a three or ten year bar for unlawful presence and need a waiver toget back into the US earlier than the 3 or 10 year bar would allow. Thenew proposal would allow them to submit the waiver application to the USCIS in the United States and receive a decision before departingthe U.S., thus reducing the time, anxiety, and sometime danger inherent inwaiting abroad for a decision.

ThisCatch-22 is one of the most notorious problems in the immigration system andthe regulatory change is long-overdue. Due to processing backlogs, uncertaintyof outcomes and violence in cities with key U.S. consulates—such as in CiudadJuarez, Mexico—the prospect of becoming a lawful permanent resident has becomean uncertain and frustrating affair for some applicants. Recognizing thisproblem, which arises in part from regulation, is an example of USCIS actingresponsibly to address a problem of its own regulatory making in an expedientand lawful way.

The too good to be true part is that there is no change in the law yet, and we have not yet seen the actual wording of the proposed change. Thetruth is this rule change will not open the doors for more immigrants, orprovide relief for the millions of undocumented immigrants in this countrywithout the necessary family and work relationships to obtain status.Therefore, calling it “amnesty” is nothing short of a lie. No one who was not already eligible for a waiver is now eligible. This proposed rule will not affect anyone new.

The other too good to be true part is that we can not expect this change to take affect before the end of the year. The Rulemaking Process is SLOW. Even if we get a proposed rule issued in the Spring (a big "if"), given the required comment period, and intense desire of USCIS's "culture of no" employees to slow down any real change that benefits immigrants, there is no conceivable way the change will happen before the election. And, if Obama loses in November, that will halt all pending changes in their tracks, and we will never see this common sense change take place.

What should you do? Do what you were doing. Do not make any changes in how you might have currently been processing for a waiver. Live your life. And, talk to an attorney if you are married to a US Citizen or permanent resident, or have Citizen or permanent resident parents. Perhaps you did not know that you already qualify for a waiver.

Newt Gingrich's Immigration Plan -- Rhetoric Is No Plan At All

2011-12-29T12:53:00.000-05:00

NewtGingrich introduced a unique concept into the Republican primary debate—anattempt at a quasi-rational approach to fixing our broken immigrationsystem. While Newt has received mostlyderisive comments from the Right, focused almost exclusively on calling hisidea an “amnesty” plan, the reality of his plan is very different. It is NOT an amnesty plan. But more importantly for those who understandthe urgent need, Newt’s plan will NOT fix our broken immigration system.

Startwith the obvious, there must be willing participants in Congress to work withany president to solve a problem of this magnitude. As Newt himself has pointed out, bothPresident Bush and President Obama have tried a “comprehensive” approach toimmigration reform, and failed miserably. In today’s Congress, with a large contingent of elected representativeswho view any law that in any way assists an immigrant as “amnesty,” Newt’s planis dead on arrival. A recent “piecemeal”bill that passed the Republican controlled House, is held up in the Senate byone Republican Senator! This unfortunateanti-immigrant attitude persists despite recent (and long standing) pollsshowing large majorities of voters from both political parties favoring animmigration reform plan that allows for earned legalization.

Newt’sten point plan is long on the big picture but short on solving the biggestproblems of all – securing our future with the right types and mix ofimmigrants and what to do with all the people in the US without legal papers.

Newt’splan starts where all immigration reform plans must start—on the border. But Newt fails to recognize the fact that theborders are far more secure today than they have ever been, and that they aregetting more secure each day. In 2011,the Border Patrol recorded the lowest number of people detained at the southernborder since 1974 when Nixon was President, and that Immigration and CustomsEnforcement (ICE) deported more people than ever before. In fact, President Obama can lay claim tobeing the “Deportation President” because he will have deported more people inhis four year term office than any President in modern times. Fences, patrols, UAVs and electronics will notkeep everyone out. A rational, legal wayinto the United States is what really stops illegal immigration at the border.

Newtspeaks of our needs for a “21^st Century Visa Program,” as if it issomething out of Six Sigma lecture, eliminating “inefficiencies” in order toattract the best and the brightest to come to and remain in America. Hereis the sad news, even in our current broken system we are attracting the bestpeople, the problem is that we are quickly losing them when they realize thatour legal immigration system (the so-called “line”) has waits of up to 15 yearsfor workers to get permanent residence through employment, and wait timesexceeding 25 years for family immigration. The answer is simple, and yet isignored by Newt -- increase the numbers of legal immigrants that come to the USin legal categories to meet not only demand, but our needs.

Andyet, the biggest flaw in Newt’s plan is not his proposed guest worker programrun by American Express (really), but rather his “path to legality” for“millions” of people who are in the United States without legal status. Newt proposes that only people here 20-25years could apply for his program. Bad news Newt—President Reagan’s “amnesty”program was 25 years ago, the numbers affected by your original proposal wouldbe only a very small portion of those that are unlawfully present. A morerational approach would be 10 years, which would cover more than 63% of allillegal immigrants. Newt also proposesthe idea that local “immigration boards” would meet regularly to determinewhether an immigrant could stay in the US. Can you imagine thousands of these boards around the country and theextraordinary inconsistency of their rulings? It would be like, well, the draft boards from the 1960s that Newtcompared them to, where certain people got favors because of who they knew orwho their family was, while others were sent to the front lines in Vietnam.

Thebottom line is this—Kudos to Newt for having the courage to buck the current(although only recent) Republican orthodoxy of “attrition through enforcement,”favored by the anti-immigration lobbyists on Capitol Hill. But Newt needs to be honest with people. His plan has zero chance of passing Congress,does not effectively deal with our future need for immigrants, does not addressa real resolution to a temporary worker program, and certainly does not dealwith a majority of the 11 million people in the United States without lawfulstatus. Newt’s plan is getting us no closer to solvingthis real national problem than the failed policies of President Obama.

Seven Reasons Why the Georgia Legislature Should Repeal HB-87

2011-12-09T10:58:00.018-05:00

Recently the Alabama Attorney General called on the Alabama State Legislature to repeal parts of Alabama's horrid anti-immigration law (HB 56), because of the "unintended" consequences of the bill (frankly, what happened was not unintended). Because of the similarity between the two laws, Georgia's Speaker of the House, David Ralston was asked whether Georgia Legislature would repeal part or all of HB 87, Georgia own anti-immigration law. HB 87 has caused almost a half a billion dollars in damage to the Georgia economy (along with untold suffering in Georgia's immigrant communities) without any noted or reported positive effect.

Speaker Ralston plainly stated that the Georgia Legislature would NOT do anything to repeal HB87. While it understandable why a politician would not admit that a pet bill he shepherded and pushed through the state legislature was simply bad law, it is also clear that Speaker Ralston is facing a challenge on his RIGHT in the upcoming elections. To admit that he wanted HB87 repealed in whole or in part because of the tremendous negative effects on the Georgia economy would significantly strengthen his own Tea Party challenger.

We know why Speaker Ralston will not move to repeal HB 87 bill through the legislature, but here is here is why Republicans in the Georgia state legislature need to repeal HB 87:

1. The Federal District Court in Georgia has already said that two key provisions in the bill, Sections 7 (transporting/harboring), and Section 8 (show me your papers) are preempted by federal law and thus unconstitutional. Attorneys familiar with the law are in agreement (except for the attorney general) that the 11th Circuit will uphold the District Court. The staying of these two provisions (the only significant provisions of HB 87 apart from the unfounded mandates to state political entities on SAVE, and mandatory E-Verify for employers with more than 10 employees on January 1 each year), caused most undocumented immigrants to remain in Georgia, but to go deeper "underground."

2. The Supreme Court has decided to hear the case involving the anti-immigration laws in Arizona, laws which are remarkably similar to Georgia's HB 87. Decades of Supreme Court precedent support an upholding of the Court of Appeals decision striking down the key parts of the Arizona law. Acting now, before the Supreme Court orders the law stricken shows Georgia as a national leader in ensuring that the laws it enacts are constitutional and just.

2. Secure Communities, the Obama administration's much maligned enforcement tool is in effect in ALL Georgia counties, which means that anyone arrested by Georgia law enforcement has an ICE hold placed upon them if they are wanted for immigration violations by ICE. This tool, more than anything the state legislature did, has more impact on the day to day lives of foreign nationals in Georgia.

3. Georgia's farm crops, from its blackberries and blueberries to tomatoes and onions have rotted in the fields because migrant farm workers bypassed the state upon passage of HB 87. Losses have so far totaled more than $390 million in the agricultural sector alone. We can expect similar losses this year, unless growers change what they plant to less labor intensive (and thus less lucrative) crops, reducing the overall tax base for taxes paid into state coffers.

4. HB 87 has caused massive labor shortages not only in the agricultural sector, but in the restaurant sector, with expected losses to total more than $1 billion dollars. Service employees are difficult to find and even more difficult to keep among the native born population. What do you tell the restaurant or hotel owner who cannot find prep cooks, dishwashers, maids and servers? Close your restaurant or hotel?

5. Economic Development efforts are ongoing in Georgia to attract foreign investment and to create jobs in our state. Georgia is LAST or near last in job creation during Governor Deals first year in office. HB 87 does nothing to attract business, and as Alabama has learned, passing strong anti-immigration laws does wonders for driving foreign investment away. On the other hand, repealing HB 87 will send a STRONG message that Georgia is open for business and will do nothing to take away from the aggressive enforcement of our immigration laws currently being undertaken by the Obama Administration.

6. The argument used by supporters of HB 87, that the federal government is not enforcing the immigration laws, is a lie. The Obama Administration can be better called the Deportation Administration. Never before have so many undocumented immigrants been deported in so short a time! Not in 40 years have so few undocumented immigrant come into the United States. Strong border enforcement, Secure Communities, and a focus on immigrants (legal and undocumented) with criminal violations have led to a lessening of undocumented immigration in the United States. Nothing about HB 87 has led to a lessening of undocumented immigration in the United States.

7. HB 87 was completely unfunded. Every statute, every regulation arising out of each statute, every requirement for counties and cities to carry out was unfunded. Every supposed benefit promised to law enforcement for compliance with HB 87 was unfunded. The leadership in the Legislature talks about unfunded mandates from the federal government. HB 87 is an unfunded mandate to the political subdivisions of Georgia, and is costing those cities and counties hundreds of thousands of dollars to comply, with no visible or tangible result. Prior to its passage, and since its passage, no state legislator has been able to point to ANY money saved because of HB 87. The only evidence that exists for HB 87 is that it is costing the citizens of Georgia tax dollars with no evident benefit.

These seven reasons for repealing HB 87 all involve legalities and facts. There is another reason to repeal HB 87 -- It is the right thing to do. HB 87 has destroyed Georgia families, hurt Georgia business, torn apart Georgia communities, and caused an intense fear of law enforcement for all immigrants in Georgia, regardless of their immigration status. Some have argued that the real purpose of HB 87 was to scare people into leaving the state. The reality is that after the District Court judge stayed Sections 7 and 8, immigrants stopped leaving Georgia. Now it is time to say that immigration enforcement is the federal government's job, and Georgia is going to let the federal government do it. Let's bring some forward thinking to the immigration debate, starting with a repeal of HB 87.

What You Should do to Prepare Yourself if You Are Arrested by ICE or Deported

2011-10-13T11:04:00.003-04:00

If you are in the United States without proper immigration papers, it is important that you prepare for the possibility, particularly in today's environment, that you will be arrested by ICE and deported from the United States. You SHOULD MAKE A PLAN NOW for what you would like to have happen to your children and your property in case you are arrested or deported. You do this by completing a "Power of Attorney" form. In doing so you are designating someone to be your agent and giving them power of attorney over everything you own. This can be a scary thing. You must pick someone you trust, particularly because their powers become effective the moment you sign the power of attorney form. That means that they can go into your bank accounts and sell whatever property you have here in the United States. (You can offset this by keeping the documents locked in your house and tell your agent where the forms are once you are arrested. You can also give it to your attorney for safe keeping.)

You must also make a plan and give your agent a lot of guidance when it comes to exactly what you would want to happen to your children and property. Give them a list of emergency contacts. Make sure that the agent knows who their pediatricians, baby-sitters and teachers are. You should talk to your agent about filing the documents with your local county Registrar. In most states that is the sure fire way to make sure that your agent’s powers are recognized with schools and banks.
Planning for an arrest or deportation can be like planning for an “immigration funeral.” And like a funeral lot of people don’t want to think about the fact that it could possibly happen. But those who do plan ahead can have exactly what they want happen to their children, property and money that they have worked so hard for during their time here in the United States. It’s worth spending the few hours filling out all the forms.

If you ever need help on doing this necessary task, contact the attorneys at Kuck Immigration Partners for assistance.

The Georgia Immigration Enforcement Review Board

2011-09-06T11:04:00.005-04:00

Section 20, of Georgia's HB 87, created the "Immigration Enforcement Review Board" (IERB) The creation of the IERB was a surprise addition to HB 87 in its last substitution in the House, and never had a public hearing. There is no legislative history about the IERB's purpose, although it is now clear from Rep. Matt Ramsey's statements to the press that it was the Association of City and County Governments (ACCG) that pushed for the IERB, in lieu of the even crazier idea of letting private citizens sue state officials.

The PURPOSE of the IERB

The primary purpose of the IERB, which is now filled by seven white men with virtually no experience in immigration law and is attached to the Department of Audits and Accounting, is to:

(1) Conduct a review or investigation of any complaint properly filed with the Board;
(2) take such remedial action deemed appropriate in response to complaints filed with the Board, including holding hearings and considering evidence;
(3) make and adopt rules and regulation consistent with the provisions of this Code section; and
(4) subpoena relevant documents and witnesses and to place witnesses under oath for the provision of testimony in matters before the board.

What the IERB Can Enforce

All of these duties are appropriately vague considering the actual authority of the Board. Here is what the Board has authority to do:

Investigate and review any complaint with respect to all action of a public agency or employee alleged to have violated or failed to properly enforce the provisions of Code Section 13-10-91 (State E-Verify usage), 36-80-23 (Sanctuary Policies), or 50-36-1 (Public Benefits) with which such public agency or employee was required to comply.

Who can FILE Complaints with the IERB

Only registered voters can bring complaints to the IERB. This little nugget may violate not only the due process clause of the state constitution, and possibly the Voting Rights Act, but all the federal Constitution's right of citizens (not just registered voters) to seek redress and petition the government. This provision has NOT been challenged in Court, but certainly will be at some point in the future.

What Can The IERB DO and to WHOM Can it DO IT?

What is remarkable with the IERB can ONLY deal with the three limited areas of Georgia law (state entity use of E-Verfiy, state entity sanctuary policies, and state entity use of the SAVE system) as it pertains to public employees. No private employers, employees, or individuals are subject to investigation by the IERB.

Further, and more problematic, the IERB does NOT have to act as a Board. One member can carry out ALL of its duties AND impose sanctions!! The sanctions that the IERB can levy include revocation of qualified local government status, loss of state appropriated funds, or a monetary fine of up to $5,000. The standard of proof used for a "conviction" by this Board is a preponderance of the evidence. The Attorney General is the club used by this Board to enforce its decisions and sanctions in Court, should the employee not comply.

What the IERB is NOT

The IERB is NOT a witch hunting panel of anti-immigrants going after private citizens and businesses who violate HB 87. So, regular folks (e.g., non-goverment employees) have not need to fear (yet). BUT, if you are a government employee--watch out!

What the IERB IS

The IERB is a RADICAL privatization of government power, and the constitutionality of this provision is suspect. After all we are talking about giving to a Board of private citizens the power to take away the "city" status of a municipality. Frankly, it is insane that this provision is in this anti-immigration bill. It has nothing to do with immigration, and everything to do with pleasing a particular constituency. Ultimately, the courts will decide the constitutionality of this Section.

The Obama Amnesty--NOT!!

2011-08-22T17:55:00.007-04:00

From my friends at www.stopnotariofraud.org.

THE OBAMA ADMINISTRATION’S IMMIGRATION ANNOUNCEMENT IS NOT AN AMNESTY. IT DOES NOT GRANT LEGAL STATUS OR WORK PERMITS. IT IS NOT SOMETHING THAT YOU CAN SIGN-UP FOR! THERE IS NO “SAFE” WAY TO TURN YOURSELF IN TO IMMIGRATION AUTHORITIES. CONSULT AN IMMIGRATION ATTORNEY ABOUT YOUR IMMIGRATION CASE OR STATUS.

STOP NOTARIO FRAUD

Don’t become a victim of dishonest immigration consultants often known as “notarios.” Immigration consultants, notary publics, and notarios cannot represent you in the immigration process. These people—especially notarios—prey on immigrants, often from the same ethnic community as the notarios themselves.

NOTARIOS WILL TAKE YOUR MONEY AND YOUR DREAMS!

Many noncitizens find out that they will never get their green card or other immigration benefits because an unqualified immigration consultant or notario unlawfully working as an immigration lawyer destroyed their dreams.

PROTECT YOUR FAMILY’S DREAMS

To avoid fraud, use your common sense. Many people hear what they want to hear—be smart! If it sounds too good to be true, it probably is. Don’t believe it if someone tells you about a secret new immigration law or claims to have connections or special influence with any government office or agency. Follow these simple guidelines.

Take action to get help and stop the notario from harming others!

If you have been harmed by a notario or an immigration consultant, you can take action that may help you and stop the person from harming others.

WE WANT TO HELP!

The resources on this website are meant to:

Help prevent immigrants from being victimized by notarios
Provide resources for victims of notarios
Provide information and resources for attorneys working with victims to remedy crimes committed by fraudulent consultants unlawfully practicing immigration law
Help immigrants find competent and affordable legal service providers

Many Undocumented Immigrants Without Criminal Records Facing Deportation Will Stay In U.S.

2011-08-18T17:29:00.002-04:00

According to the Huffington Post, the Obama administration said it will allow many illegal immigrants facing deportation the chance to stay in this country and apply for a work permit, while focusing on removing from the U.S. convicted criminals and those who might be a national security or public safety threat.

That will mean a case-by-case review of approximately 300,000 illegal immigrants facing possible deportation in federal immigration courts, Homeland Security Secretary Janet Napolitano said in announcing the policy change.

Advocates for an immigration overhaul have said that the administration, by placing all illegal immigrants in the same category for deportation, has failed to live up to its promise to only deport the "worst of the worst," as President Barack Obama has said.

"From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities," Napolitano wrote a group of senators supporting new immigration legislation. "Doing otherwise hinders our public safety mission – clogging immigration court dockets and diverting DHS enforcement resources away from the individuals who pose a threat to public safety."

The Associated Press obtained a copy of the letter.

Some states are rebelling against another administration effort to control illegal immigration known as Secure Communities. The program requires that when state and local law enforcement send criminal suspects' fingerprints to the FBI, the prints are run through an immigration database to determine the person's immigration status. States have argued that the program puts them in the position of policing immigration, which they consider a federal responsibility. Immigrant advocacy groups have complained that people who had not yet been convicted of a crime were being caught up in the system.

In June, the director of Immigration and Customs Enforcement, John Morton, sent a memo to agents outlining when and how they could use discretion in immigration cases. That guidance also covered those potentially subject to a legislative proposal, known as the DREAM Act, intended to give young illegal immigrants who go to college or serve in the military a chance at legal status.

Morton also suggested that agents consider how long someone has been in the United State, whether that person's spouse or children are U.S. citizens and whether that person has a criminal record.

A senior administration official said delaying deportation decisions in cases for some non-criminals would allow quicker deportation of serious criminals. The indefinite stay will not give illegal immigrants a path to legal permanent residency, but will let them apply for a work permit.

"As a matter of law, they are eligible for a work authorization card, basically a taxpayer ID card, but that decision is made separately and on a case-by-case basis," said the official, who spoke on the condition of anonymity because he was not authorized to discussed the change publicly.

The official said the change will give authorities the chance to keep some cases from even reaching the court system. The message to agents in the field, the official said, would be "you do not need to put everyone you come across in the system."

If an immigrant whose case has been stayed commits a crime or other circumstances change, their case could be reopened.

Sen. Dick Durbin, D-Ill., a longtime supporter of immigration overhaul and the DREAM Act, applauded the policy change.

"These students are the future doctors, lawyers, teachers and, maybe, senators, who will make America stronger," Durbin said in an emailed statement. "We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember."

Rep. Michael McCaul, R-Texas, said the Obama administration was implementing reforms "against the will of Congress and the majority of American people we represent."

"It is just the latest attempt by this president to bypass the intended legislative process when he does not get his way," McCaul said in a statement. "The fact that we have a backlog and prioritize deportations is nothing new. This policy goes a step further granting illegal immigrants a fast-track to gaining a work permit where they will now unfairly compete with more than 9 percent of Americans who are still looking for jobs."

Other Republicans have previously criticized the DREAM Act and other immigration legislation that would provide a path to legal status as amnesty. Following Morton's June memo, Rep. Lamar Smith, R-Texas, introduced a bill to block the administration's use of prosecutorial discretion and called the use of that discretion "backdoor amnesty."

Thank you President Obama and Senator Durbin for embracing the concept that the United States is truly a nation of immigrants. This policy will allow the government to decide who gets to stay in the United States based on their actions and not based on the arbitrariness of our broken immigration system.

Georgia's Secure Document List--So What.

2011-08-01T14:57:00.007-04:00

The Georgia Attorney General just issued his Secure and Verifiable Document List, as required under HB-87, Georgia's Anti-Immigration Law. This list brings to mind the First Rule you need to know when a State passes an Anti-Immigration law. That rule is summarized in one word--"meaningless." That's right. The List, as written, is meaningless. The List changes NOTHING about Georgia law and how people can use documents in Georgia.

The main reason that Rep. Matt Ramsey wanted this part of HB 87 in place was to stop the use by Mexicans of a document known as a "Matricula Consular." The Matricula Consular is a secure document, issued after a lengthy process of identification verification by the Mexican Consulate. It is certainly as secure as a Georgia Driver's license. But, since it gave the impression, apparently, to Rep. Ramsey that people were using a Mexican ID documents to apply for benefits in the U.S. for their US Citizen children, he wanted it done away with, in the mistaken belief that by doing so, perhaps these U.S. Citizen children could be deprived of the benefits they were eligible for. Unfortunately, for Rep. Ramsey he did not do his homework before writing this provision, as Federal Law permits the use of a Matricula Consular and related foreign documents to verify identity for applications for certain purposes. Neither HB 87, nor the List can change that. So, a state law was never going to be permitted to stand that disallowed what the Federal Government permitted.

The Attorney General clearly realized the problem. This is no where more evident than in the last paragraph of The List, which states:

In addition to the documents listed herein, if, in administering a public benefit or program, an agency is required by federal law to accept a document for proof of or documentation of identity, that document will be deemed a secure and verifiable document solely for that particular program or administration of that particular public benefit.

So, the Matricula Consular, as I have been saying for months, is still usable to apply for Federal Benefits for U.S. Citizen Children, even benefits administered by the State of Georgia,as permitted by federal law!

Also interesting in the Attorney General's list is the inclusion on the List of a Canadian Driver's license, as well as the drivers licenses of ALL 50 states! So much for not recognizing the licenses of Washington and New Mexico.

What the Attorney General failed to include were the dozens of variations of documents issued by USCIS to verify a person's immigration status and identification. We cannot expect the Attorney General of Georgia to be an immigration expert, but it is surprising that there was no attempt made to try to bring into the List, secure and verifiable immigration documents carried as the sole source of identification by thousands of people living in Georgia!

There must be much weeping and wailing of those anti-immigrants who wanted a limited List. the current List fails to effectively change anything about Georgia law. This List coupled with Judge Thrash's order stopping the most egregious sections of HB 87 from being enforced means that Georgia law is effectively not changed as it pertains to people's immigration status. HB 87 continues its march toward the dust heap of history as yet another bill passed by a state more concerned about the social effects of new immigrants rather than compliance with actual federal law.

Finally, let's note that the Attorney General also turned out his "Report on Public Benefits" a lengthy tome that details all the public benefits available in Georgia to U.S. citizens and
qualified aliens". Most of us who are conservatives will say WOW, I had no idea that so many programs existed, there is one thing lacking in this report. There is no indication that anyone who was not entitled any of these benefits actually got the benefit. No evidence that a person who is not a U.S. Citizen or qualified alien received benefits only intended for U.S. citizens and qualified aliens. Makes you wonder why, if there was no evidence of abuse of "public benefits" by non-qualified aliens, this law and report was even necessary.

The Oral Argument on HB 87

2011-06-20T12:34:00.010-04:00

The Plaintiffs' litigation team, of which I am proud to be a part, just left oral argument in front of Judge Thrash. Omar Jadwat and Karen Tumlin both did a terrific job in their arguments on the constitutional issues and the severe harm that will befall immigrants, US citizens and permanent residents if HB 87 is allowed to go into effect.

Judge Thrash had numerous questions for the government lawyer, who argued, incorrectly that if all these undocumented people wanted to, they could just fix their status and become legal. The most honest thing the government attorney said, after repeat questioning by the Judge, was that US citizens who drive around their parents who are undocumented, and take them to the sore for groceries, and while doing so commit a traffic offense absolutely face arrest and jail for transporting and harboring. In fact, the government attorney compared such an activity (helping your mom get groceries) is just like cocaine possession. When she said this an audible gasp was heard across the courtroom. The government attorney also mischaracterized federal law and its similarity to provisions of HB 87, but failed to either recognize or acknowledge the plain fact that immigration is a federal issue in which the states have been invited to participate only in limited fashion, and that HB 87 fair exceeds this authority.

The government attorney also tried to justify HB 87 by saying that the law protects undocumented immigrants! Yes, she really said that! She then went on to say that the law is justified by all the costs created by undocumented immigrants in Georgia. However, she failed to note that there was no fiscal note in this bill and thus we have no idea how much money this bill either saves OR costs the state of Georgia. This irresponsible inaction on the part of the Georgia state legislature allows people like the government lawyer to use made up numbers from anti-immigration groups to justify state action, when the reality is much different. Immigrants, both documented and undocumented provide a net positive contribution to the economy of Georgia. It was clear that her economic arguments made no impact on the judge, as they should not have as they had nothing to do with the reason for HB 87.

Finally, the judge repeatedly asked the state' s attorney what the purpose of the law was. She responsed with arguments about economics, crime, healthcare, and even the aforementioned protection of undoumented immigrants. But, the judge was simmply not buyng it, and said, twice, "are you really telling me the the purpose of this law is to help undocumented immigrants? In noted exasperation, he finally said, "counsel, move on, you are not answering my question"!

The only question the judge had for Omar was "where is the federal government?" Good question! Where was the Federal Government? Someone should ask Eric Holder where he was.

At the end of the the argument, which lasted about 90 minutes, Judge Thrash said that he would not be ruling from the bench but that he would likely rule by July 1, 2011, the effective date of the law. I expect a ruling shortly before that date. No one knows, other than Judge Thrash, how he is going to rule. But I remain confident, and repeat what I have been saying since January when the state legislature first took this law up: the law is unconstitutional and I believe an injunction will be granted.

Oral Argument on HB87

2011-06-20T09:01:00.005-04:00

In the courtroom. Counsel table for plaintiffs is full with 6 attorneys all prepared to argue the various aspects of the motion. Three government counsel from The state attorney General's office are also here to argue their case. Judge Thrash had said in an earlier status conference that he was "known to rule from the bench" so hopefully he will do so today in favor of the Plaintiffs.

Karen Tumlin and Omar Jadwat are the lead attorneys on oral argument for the plaintiffs. We expect to start the arguments at 10 am.

No blogging allowed so I will report back in after the hearing!

HB 87- The Preliminary Injunction Hearing

2011-06-20T07:29:00.004-04:00

Today Federal District Court Judge Thrash will hear both OUR request for a Preliminary Injunction to temporarily stop HB 87 from going into effect (or at least parts of it), AND the State of Georgia's Motion to Dismiss parts of the cas, and some of the Defendants. I plan on live blogging the oral arguments and decision of the Judge, if permitted. If not, I will post immediately after the hearing.

The reasons for granting the preliminary injunction are simple, but the standard is quite high, so there are no guarantees that it will be granted. The arguments by the government for their Motion to Dismiss are without any legal merit, but they were obligated to make the attempt. Ultimately the fate hundreds of thousands of people rests in the hands of Judge Thrash, a Clinton appointee who has been known to rule from the bench, and is someone who is bold enough to stand up to the Georgia State Legislature and say "no, you cannot violate the Constitution!"

More to follow.

U.S. Warns Schools Against Checking Immigration Status

2011-05-11T15:39:00.000-04:00

U.S. Warns Schools Against Checking Immigration Status

By KIRK SEMPLE

Federal officials issued a memorandum to the nation’s school districts on Friday saying it was against the law for education officials to seek information that might reveal the immigration status of children applying for enrollment.

Civil liberties advocates and others have complained in recent months that many school districts are seeking children’s immigration papers as a prerequisite for enrollment. Some state and local officials have also considered bills to require prospective students to reveal their citizenship or immigration status.
“We have become aware of student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status,” said the memo, from Justice and Education Department officials. “These practices contravene federal law.”
The letter cited a 1982 Supreme Court decision that recognized the right of all children, regardless of immigration status, to attend public school as long as they met the age and residency requirements set by state law.
“The undocumented or noncitizen status of a student (or his or her parent or guardian) is irrelevant to that student’s entitlement to an elementary and secondary public school education,” said the memo, signed by Thomas E. Perez, assistant attorney general for the civil rights division of the Justice Department; Russlynn H. Ali, assistant secretary for civil rights in the Education Department; and Charles P. Rose, that department’s general counsel.
Xochitl Hinojosa, a Justice Department spokeswoman, said it was the first time her agency had issued guidance to school districts on the 1982 decision. The Education Department did not return calls seeking comment.
Civil liberties advocates, who had been asking President Obama’s administration to clarify the law, hailed the memo. “We’re gratified that the Department of Justice has seen fit to do the right thing, to clarify any ambiguities,” said Donna Lieberman, executive director of the New York Civil Liberties Union, calling the guidance “a really big deal.”
Last year, Ms. Lieberman’s group found that 139 districts in New York State — about 20 percent of the total — were requiring children’s immigration papers as a prerequisite to enrollment, or asking parents for information that only lawful immigrants could provide.
While the group did not find any cases in which children had been turned away for lack of immigration paperwork, it warned that the requirements could deter illegal immigrant families from enrolling children for fear that their status might be reported to federal authorities.
After months of pressure from the civil liberties group, the state’s Education Departmentsent school districts a memo strongly recommending that they not ask for information that might reveal the immigration status of enrolling students. State education officials in Maryland, New Jersey, Illinois and Nebraska have taken steps in recent years to halt similar practices, immigrant advocates said.

Despite the New York memo, some school districts there continued to press for the right to ask about immigration status, said Udi Ofer, advocacy director of the New York Civil Liberties Union. In Arizona, state lawmakers have considered a bill that would require the state’s Education Department to determine the number of public school students who are unable to prove lawful presence in the United States, officials said. Last year, a legislative committee in Oklahoma favored a bill to require public schools to determine, at the time of enrollment, whether a child was born outside the United States

What HB 87 Means for You, Your Business and for Georgia (and it's not good)

2011-04-20T12:57:00.015-04:00

The dust has settled and it appears clear that Governor Deal will sign HB 87. We are now left with the detritus of Rep. Matt Ramsey's "work" on the most anti-immigration bill passed by a state legislature in modern times. The question everyone is asking is "what does this mean for me?"

Let's take a look at what the individual sections mean for the people, businesses and the economy of Georgia.

As we prepare to bring litigation in Federal Court, the starting point for that litigation and the starting point for anyone who looks at this bill must be the title of the bill. It is called the "Illegal Immigration Reform and Enforcement Act of 2011." HB 87 then says that this bill contains the following actions:

Provides penalties for the failure of a public employer to utilize E-Verify;

Requires certain private employers to utilize E-Verify;

Provides for the offense of aggravated identity fraud;

Provides for the investigation of "illegal alien" status;

Provides authority for law enforcement officers to enforce federal immigration laws, and provides them immunity for doing so;

Provides for training (unfunded) for peace officers for enforcement of immigration laws;

Requires proof that private businesses are participating in E-Verify system prior to issuance of a business license;

Provides for the verification of the immigration status of foreign nationals arrested and held in county or municipal jails;

Gives authority to local authorities to enter into 287(g) agreement;

Penalties agency heads for failure to abide by certain state "immigration laws"; and

Establishes the "Immigration Enforcement Review Board."

That is a lot more than what most people think this bill did, but oddly, also a lot less. HB 87 is expansive, all-encompassing, violates the Constitution in a variety of ways, and parts of it will certainly be the law in Georgia in perpetuity. And the same time, it really does nothing to stop illegal immigration.

What does the bill do?

SECTION 2 -- Some Definitions

Section 2 of HB 87 has added definitions of the word "Contractor" and "Sub-subcontractor" to the section of state law that requires E-Verify usages by state contractors. The purpose of these added definitions is made clear in Section 3, which section includes the existing burden for local governments to post to their website each year their respective E-Verify user number, or now if they do not have a website (really?) to give that information to the Carl Vinson Institute of Government at the University of Georgia for it to post each year.

Section 3 -- E-Verify, Government and Public Contractors

Section 3 adds additional compliance work to that now required for local governments to ensure not only that public contractors are enrolled in E-Verify, but that any subcontractors, or sub-subcontractors are also enrolled in E-Verify, or if they are individuals, that their driver's license or state issued ID card be given as proof of compliance with this requirement (there is a bizarre and illegal exception to this rule which I will explain below). Under Section 3 there is the additional burden that contractors under this section provide all the required affidavits, driver's licenses and ID cards to the local government within five days of receipt. The form of affidavit to be used will be created by the Department of Audits by August 1, 2011 (even though this law is effective on July 1, 2011), for used by public contractors. Then, as if this was not enough, the local government must, by December 31 of each year, submit a compliance report to the state auditor certifying compliance with the provisions of these new sections. The State Audit Department (subject to available funding--of which there is none), is supposed to conduct annual compliance audits on 50% of the reporting agencies and publish the results of these audits by September 30 of each year. Don't hold your breath waiting for these reports!

There are, of course, the obligatory penalties for failure to comply with these new requirements, the most onerous of which is if a local government/agency fails to comply with these requirements twice in any five year period, their funding will be cut by 10% automatically for the next year (the formula described in the statute is more complex, but the basic math is correct.)

Section 3 also rains down penalties on all contractors, subcontractors, and sub-subcontractors for not properly complying with these new requirements, including the preclusion of bidding on state and local government contracts for 12 months.

Simply put, Section 3 has added a significant new burden to state agencies and local governments to ensure compliance with existing E-Verify rules, and places additional expenses and compliance requirements on government contractors. All of these new requirements will come at additional expense to the taxpayers of Georgia, but unfortunately we do not know at what exact cost, because the Georgia Legislature ignored its on rules (e.g. it did not follow the "Rule of Law") as it pertained to a Fiscal Note on this bill. But rest assured, you are going to be charged more for the work done for the state and local government by private contractors.

Sections 4, 5 and 6 -- Going to Jail for Feeding your Family

This new crime reminds me so much of the play Les Miserables, where Jean Valjean is sentenced to years in prison for stealing a loaf of bread to feed his sister's starving child. A variation of this new crime was in the Arizona bill and was found unconstitutional. But his new crime is one step farther than the Arizona law, thus making HB 87 even more onerous than SB 1070 from Arizona. Simply put, if you use a fake id (of a fake, dead, or real person), in order to "obtain employment," you will be guilty of "aggravated identity fraud" and will be sentenced to state prison for up to 15 years and face up to a $250,000 fine. Don't rub your eyes. I told you about this in previous blogs. Heck , in Georgia, you only go to jail for 5 years for having sex with a 16 year old, or just less time for human trafficking! Ignoring the blatant fact that the punishment does not fit the crime, and thus would likely violate the 8th Amendment pertaining to cruel and unusual punishment, this section is also preempted by federal law. Let me explain.

The Immigration and Reform and Control Act of 1986, otherwise known as IRCA, not only granted amnesty to 2.7 million people and created the entire employer compliance scheme, but it also did one very important thing. It created federal control of employment of foreign nationals in the United States. This means that ONLY the Federal Government can legislate in the control AND punishment of aliens working in the United States. As the 9th Circuit noted in USA v. Arizona:

The text of the relevant IRCA statutory provision—8 U.S.C. § 1324a—also supports this conclusion. Section 1324a establishes a complex scheme to discourage the employment of unauthorized immigrants—primarily by penalizing employers who knowingly or negligently hire them. The statute creates a system through which employers are obligated to verify work authorization. 8 U.S.C. § 1324a(b). The verification process includes a requirement that potential employees officially attest that they are authorized to work. 8 U.S.C. § 1324a(b)(2). The statute provides that the forms potential employees use to make this attestation “may not be used for purposes other than for enforcement of this chapter and” 18 U.S.C. §§ 1001, 1028, 1546 and 1621. 8 U.S.C. § 1324a(b)(5). These sections of Title 18 criminalize knowingly making a fraudulent statement or writing; knowingly making or using a false or stolen identification document; forging or falsifying an immigration document; and committing perjury by knowingly making a false statement after taking an oath in a document or proceeding to tell the truth. This is the exclusive punitive provision against unauthorized workers in 8 U.S.C § 1324a. All other penalties in the scheme are exacted on employers, reflecting Congress’ choice to exert the vast majority of pressure on the employer side.

. . .

In addition, other provisions in 8 U.S.C. § 1324a provide affirmative protections to unauthorized workers, demonstrating that Congress did not intend to permit the criminalization of work.

Quite clearly, the Federal Government controls this area of the law. When the litigation is brought challenging this section, it appears likely that this new "crime" of feeding your family by working with fake papers will be struck down as preempted by federal law, if not found unconstitutional under the 8th Amendment.

Section 7 -- Transporting, Harboring and Inducing (and Some Hearsay Added for Flavor)

What can you say here, but Wow! Did anyone actually read this section before it was passed into law? Much was made last year about the fact that many Congressman and Senators did not read the Healthcare legislation before it was passed. My question is did ANYONE read HB 87 before it was passed? If so, they were not paying attention.

This will get a little strange so follow me here. HB 87 purports to makes it a crime (first a misdemeanor and then a felony) for any person to give a ride to an "illegal alien" or to give aid or help to an "illegal alien," or to "induce" an "illegal alien" to come to Georgia (even if he is your brother in law). Let's look at the actual language of the statute. Section 7 first defines what an "illegal alien" is. This definition is necessary because it does not exist anywhere else. There is no definition of the words "illegal alien" in federal law, and in fact those words are only used two times in the entire 500 or more pages of the Immigration & Nationality Act. Also, if you remember in a previous blog I pointed out that the first definition that Rep. Matt Ramsey had come up with for "illegal alien" likely included every person in America! The new definition is as follows:

"Illegal alien" means a person who is verified by the federal government to be present in the United States in violation of federal immigration law.

The crime for transporting (which is essentially the same in wording as that for harboring and inducing) reads as follows:

A person who is acting in violation of another criminal offense [a traffic violation in Georgia is a criminal offense], who knowingly and intentionally transports or moves an illegal alien in a motor vehicle for the purpose of furthering the illegal presence of the alien in the United States shall be guilty of the offense of transporting or moving an illegal alien.

Ignore the fact that HB 87 does not define "furthering the illegal presence" for a minute. Read the definition of the term "illegal alien" INTO the statute. Did you do that? If you read it as written, which is exactly what you have to do in order to be convicted under this statute, the only way to actually be convicted of this crime is if you, the person driving the motor vehicle, have received verification from the federal government that the person you are moving or transporting is present in the U.S. in violation of federal immigration law!!!! It does not matter if the person who is undocumented told you he was out of status or "illegal." It does not matter if you should have known he was illegal. The prosecutor will actually have to show that you had federal government verification of that fact! Do you know what that means? No one can be convicted under this statute!

The same rational applies to the harboring provisions, but actually goes a step further. Under the harboring portion of Section 7,"harboring" is defined as:

any conduct that tends to substantially help an illegal alien to remain in the United States in violation of federal law . . .

Once again we are faced with a definitional problem. What does "substantially help" mean? No one knows, so how can a person actually harbor an "illegal alien?" Let's suppose that some creative judge or prosecutor comes up with a definition, and then we are faced with the problem of who can actually be convicted of a crime under this section and who cannot. Clearly, there are three groups of people who cannot be convicted of harboring:

1. a person providing services to infants, children or victims of crimes;

2. a person providing emergency medical services (hospitals, ambulance drivers, etc.), or

3. an attorney representing a criminal defendant.

There is also another type of person who presumably cannot be convicted of harboring: a person providing privately funded social services. We have no idea, however, what this last provision means. It is a social service organization that is recognized as such by the IRS? Is it one that receives NO public monies (virtually none of them), or one that receives at least a dollar of private funding? No one knows what Rep. Matt Ramsey was thinking here. And since there were no public hearings on this provision, no one will know what it means. Well, that actually is not true. We do know at least what it does NOT mean. It does not include churches. Churches are clearly NOT "privately funded social services" under any definition of those words. Churches are house of worship and organized religions that provide aide to those in need. Churches are classified differently from social service organizations under the tax code, and recognized differently under the Constitution. So a word of caution to all you religious folks out there--be careful about being a Good Samaritan, or don't and demand that the state prosecute you for doing service. After all, What Would Jesus Do?

Frankly, the harboring provisions in Section 7 are such a mess, that they are arguably in violation of the Due Process clause of the 14th Amendment, the 5th amendment right to counsel (criminal defense attorneys are not defined in this statute and certainly are not the only ones involved in criminal defense), and the 1st Amendment as well. More importantly, these provisions all clearly require federal government involvement in their enforcement. Something the 9th Circuit noted in USA v. Arizona was quite unconstitutional:

[SB 1070] interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws

This is exactly what Section 7 does.

Another key issue of Section 7 is its failure to cure the problem noted previously in the blog of the new rule allowing hearsay evidence to convict someone of one of these crimes. The State Legislature has decided that is okay for the government to prove someone's immigration status by having a witness testify that a federal government agent "told" him the person was undocumented. So much for Due Process!

There, of course many other problems with Section 7 which will be highlighted in the litigation in this case. Suffice it to say for now that getting convicted under these new criminal laws is barely even a remote possibility.

Section 8 -- Show Me Your Papers, Please!

Here it is, the show me your papers please law, brought to you by the State Legislators of Georgia! A similar provision was found unconstitutional in Arizona. Here is the process now in Georgia:

During any investigation of a criminal suspect by a "peace officer" [undefined], when such officer has probably cause to believe that a suspect has committed a criminal violation [again, which includes traffic offenses in Georgia], the officer shall be authorized to seek to verify such suspects immigration status when the suspect is unable to provide one of the following:

(1) A secure and verifiable document as defined in Code Section 50-36-2 [the new Secure and Verifiable Identity Document Act that is part of HB87, Section 19]

(2) a valid Georgia's Driver's License;

(3) a valid Georgia Identification card . . . .;

(4) If the entity requires proof of legal presence in the United States before issuance, any valid driver's license from a state or district of the United States or any valid identification document issue by the United States federal government ;

(5) A document used in compliance with paragraph (2)9 of subsection (a) of Code Section 40-5-21 [a valid license from a person's home country]; or

(6) Other information as to the suspects identify that is sufficient to allow the peace officer to independently identify the suspect.

Helpfully, Section 8 (how appropriately named), also prohibits the officer from using race, color or national origin in enforcing this section, but, of course, does not prohibit consideration of accent or English capability, dress style, or even the type of shoes someone wears.

There are many problems with Section 8 that make it easily challenged in Federal Court. Not the least of which is that it does not cure the problem that affected the Arizona statute--the impact on the federal government. You see, it is not the WORDING of the statute that was a problem; it was the EFFECT of the statute:

In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law. Therefore, Arizona must be federally authorized to conduct such enforcement. Congress has created a comprehensive and carefully calibrated scheme—and has authorized the Executive to promulgate extensive regulations

—for adjudicating and enforcing civil removability. S.B. 1070

Section 6 [which is similar in effect to Section 8 in HB 87] exceeds the scope of federal authorization for Arizona’s state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress.

The same result will befall Section 8 of HB 87. That said, there is also another reason that Section 8 will fail. It blatantly violates the Full Faith and Credit Clause of the Constitution, when it does not recognize as valid the driver's licenses of those states that do not check for immigration status (Washington and New Mexico). U.S. Constitution, Article IV, Section 1. This clause requires that states within the United States have to respect the "public acts, records and judicial proceedings of every other state." Does Section 8 do that? The simple answer is no.

Section 9 -- Secure Communities and 287(g).

Section 9 really does nothing more than is already being done in Georgia. It is superfluous in every sense of that word. All Georgia counties will be enrolled in Secure Communities by September 30, 2012, and 287(g) is already active in at least six counties, but expansion of that program is limited by the federal government and available funding. This provision is clearly constitutional and will become law.

Section 10 -- Training for Peace Officers

This section is worse than meaningless. It provides for designation for 10 peace officers annually to be trained on federal immigration laws using federal dollars, but only if the dollars are available. What a joke. Yet, this provision is clearly constitutional and will become law.

Section 11 -- Incentive Program for Involvement in Secure Communities and 287(g)

As noted above, there is no need for an incentive to enroll in these programs. And the legislature allotted no funding for these incentives! Again, this is a joke. But, this provision is clearly constitutional and will become law.

Section 12 -- E-Verify for all Georgia Employers (Not Quite).

This section is hard to summarize without laughing. Rep. Ramsey repeatedly stated in his public comments that the most important part of HB 87 was the mandatory E-Verify component. In one public hearing he was vociferous in his defense of having every employer in Georgia of more than 5 employees enroll. But legislating is messy business, and that is not what we ended up with!

The law is relatively simple. If you are a private employer with more than 500 FULL TIME employees, you must register for E-Verify by January 1, 2012. If you have more than 100 FULL TIME employees, you must register for E-Verify by July 1, 2012, and if you have more than 10 FULL TIME employees, you must register for E-Verify by January 2, 2013.

Full time means someone works for you at least 35 hours per week. If you have 10,000 part time employees, you do NOT have to enroll in E-Verify under this law. Period.

The compliance part of this law is also relatively simple, but similarly contains a massive loophole. Every business in Georgia will be required to complete an affidavit before the county or municipal government, in regards to compliance with this law, in order to obtain or renew their business license or occupational tax certificate. At the time of signing this affidavit, the company's representative will determine the number of employees by counting the number of employees on January 1 of the year during which the affidavit is submitted. In case you did not notice, January 1 is a holiday and virtually no one works. There is nothing to prohibit an employer from laying off or reducing to part time ALL of its workers on December 31, and then restoring them to full time status on January 2. You might argue that that violates the spirit of the law, but how can you violate the spirit of a law that has no soul?

For those employers who nonetheless have the requisite number of employees as of January 1, they will be required to provide their E-Verify enrollment number as part of the affidavit process. And, if their E-Verify enrollment number has changed from the previous year, they have to explain why (e.g., we unenrolled because we had less than 10 employees for a while--entirely permissible).

Section 12, also puts an additional burden on county and municipal governments to provide to the State Department of Audits and Accounts each year a report demonstrating that the local government is in compliance with this requirement, and authorizes the Department to audit at least 20% of the local government reports each year, subject to funding (of which were was none in this bill, another joke).

Oh, one last joke on Georgia about this mandatory E-Verify program. Only FUTURE employees can be run through E-Verify. So, if someone who is undocumented is working now for an enrolled employer, their papers cannot be run through E-Verify and they will NOT lose their jobs. There is no purported job creation through this enforcement program Rep. Ramsey. Sorry to disappoint you.

This legality of a state to mandate enrollment in E-Verify is currently before the Supreme Court. Before the effective date of HB 87, we will know whether this provision is unconstitutional or not.

Section 13 -- Checking Immigration Status of Criminally Detained Persons.

This provision requires that the immigration status of all persons detained in local jails have their immigration status checked within 48 hours. Someone forgot to tell the State Legislature that this is what Secure Communities does. So, another superfluous statute. Nonetheless, this section is constitutional and will be in effect on July 1, 2011.

Section 14 -- More money for State Prisoners. Not.

This Section gives those counties who are enrolled in 287(g) an additional 10% (75 cents a day) for housing state inmates in their local jails, "subject to an appropriation of funds." Well guess what--there was no appropriation of funds!!!! Nonetheless, this section is constitutional and will be in effect on July 1, 2011.

Section 15 and 16 -- Who is an Agency Head?

These Sections add a definition for the term "Agency Head" so that such persons can be fined for violating the SAVE, E-Verify and Anti-Sanctuary policies already in place in Georgia. No one actually identified anyone who had actually violated such policies, but this provision did make D.A. King happy! This section is constitutional and will be in effect on July 1, 2011.

Section 17 -- You Want Public Benefits--Show Me Your Papers!

It is already the law in Georgia that people have to show that they are eligible for public benefits and show they are U.S. citizens or qualified foreign nationals. This Section adds the requirement that the documents presented comply with the new "Secure and Verifiable Identity Documents Act in Section 19 of HB 87. Since there are questions about the constitutionality of Section 19, this Section may also have problems going into effect (see the previous discussion on Full Faith and Credit).

Section 18 --The Agency Head is Going Down!

Section 18 provides for the penalties to the Agency Head for not complying with the verification of lawful presence in the United States requirements for receipt of government benefits provisions of Georgia law. The Attorney General is empowered to investigate such Agency Head, and collect attorney’s fees from the Agency Head if the Attorney General discovers noncompliance. This section is constitutional and will be in effect on July 1, 2011, even though it denigrates state employees.

Section 19 -- The Secure and Verifiable Identity Document Act

The state legislature here adds an entire new "Act" to the Georgia Code in an attempt to create a list of documents that must be used throughout the Georgia Code to verify identity for the variety of purposes required under the Code. The Attorney General is given until August 1, 2011 to create the list of acceptable documents under this act. The real intent of this act is to prohibit the use of the Matricula Consular, a document issued by the Mexican Consulate to provide a form of ID for Mexican nationals in the U.S. who do not have any other form of identification. The reality is that this prohibition only applies to acceptance of these ID documents by state agencies and does not apply to private businesses, such as banks or check cashing locations. Should the Attorney General choose to follow the lead of the state legislature in regards to not accepting driver's licenses from Washington and New Mexico, this section may be unconstitutional. However, as currently written it is completely legal and will go into effect on July 1, 2011.

Section 20 -- The Anti-Immigrant Enforcement Panel

This section was a surprise addition to HB 87 in its last substitution in the House, and has never had a public hearing. There is no legislative history, nor is there any explanation as to why this provision was even included here. Section 20 creates the "Immigration Enforcement Review Board." The primary purpose of this Board, which will include 7 members appointed by the Governor, Speaker of the House, and the Lieutenant Governor and is attached to the Department of Audits and Accounting, is to:

(1) Conduct a review or investigation of any complaint properly filed with the Board;

(2) take such remedial action deemed appropriate in response to complaints filed with the Board, including holding hearings and considering evidence;

(3) make and adopt rules and regulation consistent with the provisions of this Code section; and

(4) subpeona relevant documents and witnesses and to place witnesses under oath for the provision of testimony in matters before the board.

All of these duties are appropriately vague considering the actual authority of the Board. Here is what the Board has authority to do:

Investigate and review any complaint with respect to all action of a public agency or employee alleged to have violated or failed to properly enforce the provisions of Code Section 13-10-91 (State E-Verify usage), 36-80-23 (Sanctuary Policies), or 50-36-1 (Public Benefits) with which such public agency or employee was required to comply.

Only registered voters can bring complaints, which may in fact violate the due process clause of the state constitution, and possibly the Voting Rights Act.

What is remarkable with this Board is what it can do to these public employees. The Board does NOT have to act as a Board. One rogue member can carry out ALL of its duties AND impose sanctions!! These sanctions include revocation of qualified local government status, loss of state appropriated funds, or a monetary fine of up to $5,000. The standard of proof used for a "conviction" by this Board is a preponderance of the evidence. The Attorney General is the club used by this Board to enforce its decisions and sanctions in Court, should the employee not comply.

This is a RADICAL privatization of government power, and the constitutionality of this provision is suspect. After all we are talking about giving to a Board of private citizens the power to take away the "city" status of a municipality. Frankly, it is insane that this provision is in this anti-immigration bill. It has nothing to do with immigration, and everything to do with pleasing a particular constituent. Ultimately, the courts will decide the constitutionality of this Section.

Section 20.1 -- The H-2A Program and a Non-Study.

In an attempt to placate the Farm Lobby and farmer-supporting Senators, Senator Chip Rogers and Rep. Matt Ramsey added this Section to HB 87 on this last evening of the state legislative session. These provisions appear to have been added in violation of legislative rules. They were challenged as such during the final vote in the House, but the Speaker overruled the objection, upon the suggestion of Rep. Matt Ramsey (some of us were watching this happen live!). Section 20.1 directs the Department of Agriculture to conduct a study of the conditions, needs, issues and problems associated with the H-2A federal temporary agricultural worker program. It authorizes the Department of Agriculture to "provide a report evaluating the legal and economic feasibility of implementing a state guest worker program." I can save the Department of Agriculture a lot of money. Such a program is illegal! I wonder if I can bill for saving the state tens of thousands of dollars? Despite what Utah did with their state anti-immigration bill, there will not be 50 different states with 50 different immigration worker visas!

This Section is nuts, a waste of time and money, and a throw away to get certain Senators to vote for the bill. But, it is legal!

Section 21 -- Severability

This section was written in anticipation of certain parts of HB 87 being found unconstitutional. It simply means that those parts that are not unconstitutional remain in effect.

Section 22 -- Effective Dates

All parts of HB 87 become effective on July 1, 2011, except for Section 17, the section on the acceptance by a state agency of "secure and verifiable documents," which is effective on January 1, 2012. Of course, any criminal offenses and violations only are punishable if they occur after the effective date of the HB 87.

Section 23 -- Repeal of Conflicting Laws.

This last section simply means that nay other laws that conflict with the laws here are repealed.

Conclusion--But Not the End

There you have it. HB 87 in all its bare naked truth. A law that will destroy families, ruin businesses, and obliterate Georgia's economy. Don't believe me? Ask Arizona. HB 87 does nothing to stop illegal immigration. It does nothing to help people in Georgia who do not have jobs, as it creates no jobs. This bill does nothing to help Georgia business become more competitive. What is disappointing is that more businesses and chambers did not verbally, actively and passionately oppose this law for what is really is--a blatant attempt to revive prejudice against immigrants and to scare immigrants into leaving Georgia. Some proponents of this bill have argued that only undocumented immigrants need fear these effects of this bill. But we know the truth, and it was plainly spoken by State Senator Unterwood on the floor of the Georgia Senate--she feels more secure now that she sees fewer Mexicans in her hometown. Wow. That is really what this law is about. We should all be worried that Georgia has traveled back in time 50 years to 1961. But now, we are in the era of Juan Crow, not Jim Crowe. I fear for what will happen to my state because of HB 87, but that is also why we will continue to fight against this terrible excuse for a law. HB 87 undermines all that Georgia has worked for during the last half century. I am embarrassed for our state legislature and I am embarrassed for the governor who signs this. No excuse or rationale is sufficient for letting this become the law of Georgia.

Georgia Is Now "All In" for the Immigration Game

2011-04-14T18:22:00.004-04:00

This afternoon the Georgia Senate caved into the blitz put on by Senator Chip Rogers to craft a "compromise" anti-immigration bill in the Georgia Legislature with Rep. Matt Ramsey, passing HB 87 compromise language by a slim 3 votes in a lengthy process on the legislature's final day in session this spring. The HB 87 compromise language will be quickly agreed to by the House (where key leaders had already been consulted on the compromise language).

HB 87 now goes to Governor Deal for signature. Should Governor Deal sign HB 87, it will be the worst piece of immigration legislation in the United States, in some respects worse than Arizona's SB 1070. The good news is that the 9th Circuit Court of Appeals recently found four key provisions of SB 1070 unconstitutional, and those provisions have corresponding sections in HB 87. HB 87 also has several other provisions which themselves separately violate the Constitution, and which will be struck down by the federal courts.

It is simply too bad that the desire to pass "something" to send a message on illegal immigration to someone (it is unclear who the legislature thinks will get this message) overcame common sense and a clear understanding of the harm HB 87 will do to Georgia's reputation, industry, agriculture and spirit. Literally, the Legislature had gone "all in" on this game of bluff poker. Now it is time to show the cards on how HB 87, an Arizona law on steriods, will damage the state before it even has time to become effective.

A Tragic Day In Georgia

2011-04-14T18:05:00.001-04:00

Remember this day. It is the day that the Georgia Legislature abandoned the people of Georgia.

Did Rep. Matt Ramsey Lie About HB 87, Again?

2011-04-13T11:20:00.004-04:00

Yesterday Matt Ramsey introduced yet another substitute for the Senate passed version of HB 87. His substitute eviscerated the work done by the Senate on this bill, which had ameliorated some of its more unconstitutional and illegal provisions, and eliminated the business destroying E-Verify requirement. In speaking to a reporter after his substitute passed the House, effectively without debate or even time to review his substitute, Rep. Ramsey said this:

“The Senate… took out many of the provisions that we worked very hard on as part of the comprehensive Immigration Reform Act of 2011,” Ramsey told the House moments before its vote. “They made some curious changes at best. What this amendment does is it restores the well-thought-out, well-reasoned legislation that we passed several weeks ago out of the House.”

What Rep. Ramsey did not tell the reporter is that more TWO DOZEN CHANGES to the original HB 87 are now in this bill, and none of them have had a public hearing! Perhaps the next question the reporters should ask Rep. Ramsey is "why did you lie to us about what is in your bill?"

Let's take a look at some of the substantive changes Rep. Ramsey has made, again, to HB 87. I say again, because Rep. Ramsey did this same thing, and lied about it, two weeks ago, when he substituted a different version of HB 87 into the Senate passed SB 40 that his committee voted on. At that time, he created a lower evidence standard for criminal convictions, and created a new crime in the bill! He also said then that there were no changes to the bill from the original version the House had passed. And yet we discovered significant additions and changes to that version of the bill.

Rather than take the newest changes in order of the section they appear, let's look at Rep. Ramsey's changes in order of magnitude. Rep. Ramsey's new version of HB 87 now has the mandatory E-Verify requirement back in, but this time he watered it down to apply it only to companies who hire more than 10 full time employees! At a public hearing on this matter Rep. Ramsey emphatically stated that the law should apply to all employers who have have at least 5 employees, and an exemption should not be made to expand that number. What changed his mind? And, why did he now decide to make it full time employees only? An even more significant change to this section of the bill (Section 12), is that the employer when applying for his business license must attest how many employees it has as of January 1 of that year! Think about it, if the company hires employees during the year, lays them off at year end, has NO employees (or less than 10) on January 1, then rehires on January 2, they have effectively and legally avoided complying with this law and enrolling in E-Verify. Clearly, Rep. Ramsey is now playing games with the public about his position on E-Verify, something he calls:

one of the most important provisions of his bill because many illegal immigrants come to Georgia to find work.

Rep. Ramsey, if this is the most important provision in your bill, why have you changed it so significantly that is it basically useless, failed to actually have any public hearings on this massive change in strategy, and then lied to the press about it?

The changes do not stop there. The next significiant change is the creation of an "Immigration Enforcement Review Board" in the new Section 20. Simply put, there has been nothing about this Board discussed EVER, in any public setting, or in any review of this version HB 87. Rep. Ramsey, why did you lie about this? Is this something that the radical anti-immigrant groups urged you to put into the bill? This Board members are appointed by the Governor, Lt. Governor, and Speaker. The Board is attached to the Department of Audits and the folks serving receive no compensation. But clearly, creating an entire new Board is going to cost the State of Georgia money. Rep. Ramsey, where is the fiscal statement on this provision of your bill? Heck, where is the legally required Fiscal Note?

Rep. Ramsey gives the Board the authority to investigate and review any complaint with respect to all actions of a public agency or employee who violates the sections of the state law pertaining to the government's use of E-Verify, Save, and the creation of sanctuary policies. Rep. Ramsey has created this Board to substitute for the Attorney General, something the Senate had intelligently and thoughtfully done, to investigate these same complaints. This Board will serve as a sort of Star Chamber to hunt down and investigate and punish folks, using a preponderance of the evidence standard, who it believes have violated the law. How can a Board of private citizens do this without judicial process? Good question. Perhaps someone should ask Rep. Ramsey to answer it!

This new version of HB 87 also takes the extraordinary step in Section 3 of violating the Full Faith and Credit Clause of the Constitution of the United States. In Section 3. Rep. Ramsey declines to recognize as valid IDs, the driver's licenses of New Mexico, Washington and Utah, because those states do not check the immigration status of folks before giving them a driver''s license. Wow! Talk about an easy target of litigation. We really should be thanking Rep. Ramsey, rather than pointing out the obvious problem with legislators voting for a bill that they KNOW is unconstitutional. Does this mean that anyone driving a car in Georgia with New Mexico, Washington or Utah plates is now going to be a target of the police for one of their "show me your papers" stops?

In Sections 7 and 8, Rep. Ramsey also eliminated the Senate passed versions which limited the criminal liability for Transporting, Harboring and Inducing an Alien to enter Georgia to those who also were committing another felony offense. Now, the language is back to the Rameseyesque "criminal violations," which in Georgia include traffic offenses as those are punishable as misdemeanors, as a predicate act for these typically federal offenses.

Rep. Ramsey also tried to say that he exempted Churches from the potential charges of Harboring, Transporting or Inducing an Alien, but he either did not read the language he inserted into the bill, did not understand it from a legal perspective, or simply lied about it. He has now exempted

"an employer transporting an employee who was lawfully hired," and "a person providing privately funded social services."

Rep. Ramsey does not, however, provide a definition for "lawfully hired," or for "privately funded social services." One thing we can be sure of is that Churches are NOT protected by this language. Churches are NOT social service organizations, they are religions. They come under different IRS tax and federal and state rules, and can in no way be considered protected by this language. You have to begin to wonder, what does Rep. Ramsey have against churches that he will not exempt them from what most other people would consider Christian acts of service? Keep in mind as well that the vast majority of social service groups actually also receive SOME government funding. Rep. Ramsey has to know this. He votes on giving public dollars to privately run organizations all the time. So, he also has to know that this latter provision likely applies to no one and no group.

In Section 5 of the new HB 87, Rep Ramsey also single handedly, and without public hearing or rationale, increases the penalty for a first offense of the newly created "Working with Fake Papers" crime to be 15 years in prison and a $250,000 fine! Keep in mind that the punishment for paying for sex with a 16 year old to only 5 years in prison, punishment the Georgia Legislature just passed last month! Admittedly, this language now conflicts with the punishment in the preceding paragraph in the same section, but you get the point. Rep. Ramsey was not truthful when he said that there had been public hearings on this bill, and he was not truthful when he said that he had just restored what was in the HB 87 before it went to the Senate.

There are another dozen changes to this bill. We could sit here all day and ask Rep. Ramsey why he is afraid to publicly debate and discuss this bill and why he attacks the Senate for their efforts to restore some semblance of sanity to an Arizona Style Bill on Steroids. Perhaps the answer to the question as to why Rep. Ramsey lied about his newest version of HB 87 lies in the fact that if he told the truth, HB 87 would not be passed. So many other states have said no to this Arizona style bill in light of the crystal clear negative impact passing such a bill will have on the state that does so. And, in light of the 9th Circuit Court of Appeals ruling affirming the 4 key parts of the Arizona law as unconstitutional (parts which are in HB 87), it is non-sensical that the Georgia Legislature would pass HB 87 as it is currently written. Let's see if any of our legislators take the time to read this bill and see it for what it really is--an attack on Georgia, its economy, its citizens and its reputation. Hopefully, they will not let one man destroy all that Georgia has done to make itself a welcoming place for businesses and people.

Why HB 87 and SB 40 are Unconstitutional

2011-04-11T14:36:00.004-04:00

A more in depth analysis will be coming this evening, but the 9th Circuit Court of Appeals just made absolutely clear why Georgia's HB 87 and SB 40 are going to be found unconstitutional if passed by the State Legislature.

In United States of America v. Arizona, Judge Paez writes specifically as to Section 2(B), which is the "show me your papers" part of SB 1070 in the Arizona law and which is contained in substance in both HB 87 and SB 40, that

In light of this guidance, Section 2(B)’s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)’s ‘unyielding” mandatory directives to Arizona law enforcement officers “underminethe President’s intended statutory authority” to establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, “flexibility is a critical component of the statutory and regulatory framework under which the” Executive “pursues [the] difficult (and often competing) objectives,” Buckman, 531 U.S. at 349, of—according to ICE—”advanc[ing] the goals of protecting national security, protecting public safety, and securing the border.” Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive.

This preemption is NOT about the shall/must/permissible aspect of the Arizona or Georgia laws on "show me your papers." It is about usurping a federal area of law. Period.

Further, the Court also found that the state law also affects the foreign policy of the United States, something the states are simply not permitted to infringe upon:

The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] produc[ing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental.

The bottom line is this--and is exactly what I have been saying since January--the authors of HB 87 and SB 40 simply did not consider the constitutionality of their proposals, or did not care whether they were constitutional. In either case, if either of these laws pass the General Assembly this session, litigation will be filed, and HB 87 or SB 40 will be stopped in the Federal Courts.

There They Go Again--The Georgia Legislature and Immigration

2011-03-31T10:17:00.010-04:00

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

2011-03-24T08:49:00.013-04:00

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?

2011-03-21T12:39:00.006-04:00

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?

2011-03-15T11:43:00.004-04:00

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

2011-03-01T16:51:00.001-05:00

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

What Part of Your Oath of Office Don't You Understand?

2011-02-25T14:00:00.007-05:00

I have been thinking a great deal recently about all of these state immigration bills proliferating around the United States, and the direct affront that many of them are to the U.S. Constitution. I wonder, do you violate your oath of office as an elected official, whether it be at the local or state level, if you advocate for and work to pass a bill that you know is unconstitutional? We are not talking about just advocating for a change of law within the parameters of the Constitution, but rather actively working to subvert the Constitution and Constitutional principles.

For example, a state senate committee from Arizona's state legislature recently approved a bill

. . . that would deny automatic citizenship to the children of illegal immigrants, a measure designed to set up a possible U.S. Supreme Court case on the issue. [...]

Sponsors of the automatic citizenship bill approved by the Senate panel hope it will prompt a court interpretation on an element of the 14th Amendment to the U.S. Constitution, which guarantees citizenship to people born in the country or who are "subject to the jurisdiction" of the U.S.

Consider that in passing this bill, the state senators who voted for this KNEW the bill was unconstitutional, and were hoping the Supreme Court would change the law. They did this despite the oath of office they had taken. When a state legislator in Arizona is sworn in, this is the oath they take:

I, _____________________________do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of _____________ according to the best of my ability, so help me God (or so I do affirm).

So, by passing a bill, the legislator KNOWS to be unconsitutional, how are they not violating their oath of office, and thus become subject to impeachment?

The same could be said for Georgia legislators who insist on passing legislation that they know has been found unconsitutional in other states. But, in Georgia, the penalty is slightly different:

Georgia law provides that any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years. OCGA § 16-10-1.

So, should these anti-immigration pieces of legislation pass as currently written in their unconstitutional state, who is going to prosecute the state legislators? And, then do they not also violate the "rule of law" in our "nation of laws," that they claim to cherish? Perhaps this is all just in the eye of the beholder, but it seems many folks are leaping BEFORE they are thinking. Or, they are just hypocrites.

Utah's common sense and humane treatment of immigrants

2011-02-22T15:27:00.003-05:00

With all of the anti-immigrant state legislation going around it's nice to see that Utah has adopted a common sense approach to immigration reform.

Official text of Utah Compact declaration on immigration reform

Deseret News - Published: Friday, Nov. 12, 2010 11:00 a.m. MST

A declaration of five principles to guide Utah's immigration discussion

FEDERAL SOLUTIONS: Immigration is a federal policy issue between the U.S. government and other countries — not Utah and other countries. We urge Utah's congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.

LAW ENFORCEMENT: We respect the rule of law and support law enforcement's professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.

FAMILIES: Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.

ECONOMY: Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah's immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.

A FREE SOCIETY: Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.

SALT LAKE CITY — Local Latino leaders welcomed a new document backed by a broad spectrum of Utah business, political and community leaders aimed at reframing the heated and emotional debate on illegal immigration. Tony Yapias, director of Proyecto Latino de Utah, called the so-called Utah Compact and subsequent LDS Church statement of support a "game changer" in efforts to reform immigration laws at the state level. And Archie Archuleta, chairman of the Utah Coalition of La Raza, said he now sees some light at the end of the tunnel. But "we hope that the tunnel doesn't collapse."

How much weight the statements carry with the Legislature remains to be seen. At least a dozen immigration bills could be considered when lawmakers convene in January, with Rep. Stephen Sandstrom's controversial proposal being the most publicized to date. "I think it will play in as a factor," said Senate President Michael Waddoups. But in the end, he said, legislators will do what they think is best for the state and their constituents.

The Salt Lake Chamber of Commerce, the Utah Attorney General's Office, the Salt Lake City Mayor's Office, the Sutherland Institute and United Way on Thursday unveiled the Utah Compact, a document outlining five principles, such as urging federal solutions and keeping families together, to guide the immigration discussion. Compact signers include former Gov. Olene Walker and former U.S. Sen. Jake Garn.

A KSL flash poll conducted Friday by Dan Jones & Associates shows 64 percent of Utahns agree with the premise of the compact calling for a civil and compassionate approach to immigration legislation in Utah. Twenty percent disagreed with that notion, while 18 percent didn't have an opinion. Jones surveyed 260 households statewide. The poll has plus or minus 5 percent error margin.

Gov. Gary Herbert did not sign the document. His spokeswoman, Angie Welling, issued a statement Friday saying the governor is "heartened that business, community and ecclesiastical leaders have come together to lend their voices to this effort." Herbert has stressed what he calls a "Utah solution" to the immigration problem.

The Church of Jesus Christ of Latter-day Saints on Thursday released a statement supporting the compact, saying "public officials should create and administer laws that reflect the best of our aspirations as a just and caring society. Such laws will properly balance love for neighbors, family cohesion, and the observance of just and enforceable laws." * * *

Why A Company Should NOT Self-Audit Their Own Forms I-9

2011-02-21T16:51:00.004-05:00

Much has been made recently of the increased ICE enforcement activity against employers. The majority of this enforcement activity is directed towards the Form I-9 and whether or not employers have either properly completed the Form, or have somehow knowingly hired individuals who are not authorized to work.

In support of this enforcement activity, in May 2010, ICE released the “ICE Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties.” That agency field manual provides insight into the administrative procedures and penalty scheme for administrative inspections for the agency’s special agents and forensic auditors. This “fine guideline” only briefly discusses the remedial impact of “auditing” a company’s Forms I-9 PRIOR to ICE serving a Notice of Inspection on the company.

There have been countless seminars over the last several years talking about the need for Human Resource (HR) professionals to “audit” their own Forms I-9, and even describing how this auditing should be done. Here is the bad news–companies that audit their own Forms I-9 are not significantly reducing the potential fines and in many situations may actually make matters worse, because much of this audit work perpetuates previous errors made by the same person who is now auditing the forms.

In a recent AILA Seminar on work site enforcement issues, an ICE representative made it quite clear that self-audits typically result in more difficult situations for the employer than if an audit is done by a qualified, experienced, independent auditor, such as an attorney. Examples of massive mistakes made by self-auditing after attending a self-taught “training session” include: redoing all the Forms I-9 and throwing away the originals, separating copies of documents from Forms I-9 and throwing them away, making changes to Forms I-9 without initialing and dating the Forms, and inserting backdated information in Forms I-9 making them appear to be completed timely. Each one of these “mistakes” in auditing has led to massive fines by ICE and even findings of unlawful employment of aliens.

Now, you may be thinking–this could never happen at my organization. We’ve spent countless hours reviewing the proper Form I-9 audit procedure and protocol and have carefully planned our remediation steps. Unfortunately, despite these best intentions, many HR professionals fall into the irresistible trap of trying to “un-do” or gloss over their past mistakes. This behavior is certainly understandable in some respects–internal audits often reveal significant errors, and it’s only natural to want to hide or minimize these mistakes in order to save face and retain one’s job. Unfortunately for the employer, ICE typically regards these Form I-9 cover-ups (no matter how innocent ore misguided) as serious matters which may lead to charges of falsification, perjury, and document tampering. In today’s pro-enforcement Form I-9 regime, employers simply cannot afford to be caught in such a perilous (and avoidable) situation.

Employers must also recognize that auditing Forms I-9 is not just about making corrections and completing new forms. In many instances, employers will first need to decide if they can remediate the error at all, and then plan appropriate corrective measures to satisfy ICE and avoid any potential discriminatory issues. The complicated nature of auditing Forms I-9 was made even more apparent on February 23, 2010, when ICE provided policy guidance concerning the applicability of the Federal Omnibus five-year statute of limitations provision in employer sanctions cases. Therefore, Form I-9 audits require the auditor to make determinations as to the running of the statute of limitations for paperwork violations (from the correction of the I-9’s), timeliness violations (from the second and fourth day of employment) and knowingly hiring or continuing to employ violations (from the termination of the employee). ICE also reiterated its continuing use of the Virtue Memorandum’s interpretation of the 10-day notice paperwork good faith defense.

The bottom line on auditing Forms I-9 is this–much like completing the world’s most complicated one-page form, auditing the Form I-9 is fraught with potential for increasing, rather than decreasing penalties and fines, and best left to those with substantial experience in the field. An organization’s best practice is to complete a yearly audit of the Forms I-9 using an immigration attorney with experience in Form I-9 compliance. Any other type of audit will always leave an organization wondering whether or not the audit done in-house actually left their employer compliance program in worse condition.

Testimony Before the Georgia House Judiciary Committee on HB 87

2011-02-11T15:46:00.004-05:00

I thank you for the opportunity to speak to you today about HB 87. My background in immigration law goes back more than 20 years. I practice law here in Georgia, I teach immigration law at the University of Georgian as an adjunct professor of law. I am the past national president of the American Immigration Lawyers Association. I testify today as an expert in immigration law. There are good public policy reasons to not pass this bill. Others I am sure will discuss those. I want to focus on the legal reasons why this bill is not ready for passage.

The title of this bill is the Illegal Immigration Reform and Enforcement Act of 2011. It does not, however, reform illegal immigration or its enforcement. This bill will cause the state and its local governments to face increased litigation, fail to carry out the purported mission of this legislation, and will result in increased costs and taxes to local governments and businesses in Georgia. It will do all this because it does not comport with federal law, includes clearly federally preempted sections, and does not do what the purported purpose of this bill says it does. And despite what one Representative stated at a prior hearing, the Supreme Court has identified at least four provisions in Article 1 of the Constitution which give Congress plenary power over all aspects of immigration law. There is no 10^th Amendment argument reserving any power to the states to regulate immigration. To state otherwise is disingenuous and without legal basis.

Representative Ramsey stated that the reasons for drafting this bill included the purported use of public benefits by undocumented immigrants. He produced no evidence that this is actually happening. Has there been a study done in the last 12 months on the use of “public benefits” used by undocumented immigrants in Georgia? No. Simply stated, welfare, food stamps and unemployment assistance, the largest “welfare” benefits, are simply unavailable to undocumented immigrants by existing law. This bill does not effectively address items that are not already required under state law. For example Georgia already includes mandatory SAVE review of all benefits applicants, thus ensuring, as best as that database can, that only legally authorized immigrants and citizens access public benefits. So, why the private lawsuits?

Representative Ramsey also sited a number of $2.5 billion as the cost of illegal immigration in Georgia, without also noting that illegal immigrants contribute more than $9.4 Billion to Georgia’s economy, and pay millions of dollars in taxes. I am not saying that illegal immigration is not a problem, nor am I saying that I want illegal immigration. I do not. No one, including illegal immigrants, benefit from their situation. What I am saying is that you need to see the WHOLE picture before you vote to pass this legislation out of committee.Where there are expenses, there is also income.

Representative Ramsey also stated that Georgia had to do “something” because the federal government has not acted on illegal immigration. This is simply not true. This last year, the Obama Adminstration deported a record number of people, almost 400,000. More miles of the “fence” were built then ever before. More than $4 BILLION dollars were spent on border security and enforcement. More than 36,000 immigrants are held in detention centers on any given day of the year, on their way to being removed; and ICE just announced a new employer enforcement center, which is aggressively auditing employers who violate the employer sanctions laws, all around the United States and here in Georgia. It is a myth that the Federal Government is doing nothing. In fact, the federal government is doing more than it has ever done before, but do not expect a miracle. Estimates are that it would cost more than $135 billion dollars to remove everyone, and it would have a devastating impact on the economy by doing so. This should NOT be a reason to pass ineffective state legislation on an issue that is, frankly, beyond the scope of expertise of the state.

My first concern with this legislation goes to cost -- where is the Fiscal Note on this bill? Even Representative Ramsey said this bill is going to have a potentially large negative fiscal effect on the state and local governments. Why would you pass a bill with certain negative economic impact, and potential tax increases, without knowing exactly what you were doing? We know that similar state legislation in Utah was just found to carry an $11 million dollar price tag. Utah is a 1/3 the size of Georgia in population with only 29 counties and a handful of cities compared to Georgia. Can you imagine what this legislation will cost here?

I also have concerns about virtually every section of this bill from a legal perspective. Sections 3, 4, 5 and 6 of this proposed legislation contain the threat of unlimited litigation with no deterrence to filing lawsuits.Simply requiring potential plaintiffs to notify the local government before suing does not stop the litigation.Who is going to pay to defend from frivolous lawsuits? Frankly, the only thing that might serve as deterrence to frivolous lawsuits would be a loser pays system. More importantly, there is no proof of non-compliance required this law prior to lawsuits being filed. 158 of the 159 Georgia counties are enrolled in E-Verify, and the other is in the process of allocating resources to make this happen. I suggest first seeing if these provisions are actually necessary before passing them. Where are the studies showing a NEED for this legislation?

Section 7 of this bill deals with seizures of vehicles for transporting undocumented immigrants, the harboring of undocumented immigrants, and the encouraging of an undocumented immigrant to enter Georgia. This particular provision the Federal Judge in the Arizona legislation found was NOT preempted by Federal law, BUT the judge did not rule if this legislation was constitutional, on say, vagueness grounds. This provision is written in such a way that it does not exclude Churches (as does federal law), when say, the pastor drives someone who is undocumented to Church, and is speeding on his way there. The provision that this law is only effective in the context of another legal violation does not reduce it vagueness. What other violation?Tax evasion, trespassing, or a zoning violation? When does it have to occur?

Human smuggling is already illegal in Georgia and the United States, this bill does not change or enhance that.Further, in the provisions in this law which are somewhat different from the AZ law, e.g. effecting the bringing of “someone” to the U.S., federal law excludes prosecutions for immediate family members, this legislation does not, thus making it likely preempted by Federal law.

Section 8 of this bill, relating to traffic stops, was found preempted by federal law, and is still, even with the purported changes not making it mandatory (any law that says “shall” is mandatory). Further, I have concerns about how this bill affects victims of Domestic Violence. I have had a least two clients in the last year who were arrested after they complained about domestic violence, and then were detained, as victims, while an immigration check was run. Please understand, that means that a victim was detained. Something expressly forbidden, but which happens because of legislation like this.

Section 9 urges 287(g) enrollment by counties, which is already mandatory under state law. Recent reports show that 287(g) has serious programmatic issues. Enrollment is not really a local government option, as ultimate enrollment is up to the Federal Government, which is also resource constrained. This section is simply unnecessary.

Sections 11 and 12 deal with Secure Communities. These sections are also unnecessary as the federal government has already committed to installing this program in all Georgia counties by September 30, 2011.These provisions are essentially fluff and are unnecessary.

Section 13 gives counties an extra $2 a day if they enroll in 287(g)! Why? Even if this were a substantial sum, where is it coming from? This provision is essentially meaningless.

Section 14 mandates E-Verify for all, well, not really. What is written here will not ensure E-Verify enrollment by all Georgia business. It specifically exempts tens of thousands of small business, which are exactly the type of businesses who don’t currently use E-Verify. Has there even been a study to show how this will affect businesses, or how effective this requirement will be? How many counties require a business license or a tax certificate? How many enforce that rule? Arizona made this the law 5 years ago, and to date, only 35% of AZ businesses are enrolled. E-Verify has other problems as well. To date, 238,000 employers have enrolled in E-Verify nationally. I encourage my client employers to enroll in E-Verify. And, I am enrolled in E-Verify, by choice. But, that is out of more than 11,000,000 employers in America.

Much is made of the fact that it is very easy to enroll in E-Verify. To one committee member it only took 20 minutes. My question is this. Did he read the 13 page Memorandum of Understanding that waives the company’s right under the 4^th amendment? Further, this Arizona mandate is on appeal to the Supreme Court.It is unclear which way the Supreme Court will rule. Once concern with this mandatory enrollment is whether the STATE can require a waiver of the 4^th Amendment rights for no consideration.

Congress will eventually make this mandatory, but for now has chosen not to. It remains unclear whether a state can require a business to waive it federal constitutional rights. The provision has other flaws; it only gives business three days to comply, when federal regulations give a business 4 days to do so. Further, only FUTURE employees can be screened; current employees cannot, so it does nothing to resolve the current issue of unlawful employment.

Finally, Section 15, which bans the use of the Matricular Consular by State and Government agencies.Why don’t you just say that? Why all the other unnecessary and confusing language, which only puts an onus on the Attorney General to publish an ever changing list of acceptable documents. Also please note that by the definitions and language of this proposal, the list of acceptable documents must, of necessity, include foreign passports?

As you can see, there is MUCH to change, edit, or remove from this legislation, which is clearly not ready for primetime. Is the Georgia State Legislature really ready to put this bill into law, and put at risk Georgia Governments, Georgia Businesses, and Georgia’s People? I urge you to send this bill to defeat, until there is actually evidence and support for its provisions, and meaningful reasons to enact it, rather than allegations, myths, and innuendo. Our laws should DO something effective; they should not be passed just to say you are doing “Something” about a broken federal immigration system.

Thank you.

It It Walks Like a Duck . . . .

2011-02-09T11:23:00.003-05:00

Yesterday during the second public hearing on HB 87 before the Georgia General Assembly's House Judiciary Committee, the bill's author and at least two sponsors presented a rather startling new tactic. They each stated, and the Chairman did so quite vociferously, that "HB 87 is NOT like the Arizona law." The Chairman argued that it was very different from the Arizona, without actually distingushing how his allegation of non-similarlity was actually correct.

So, if HB 87 contains at least three of the controversial provisions found in the Arizona law, how is it NOT like the Arizona law? If HB 87 has as its primary purpose to chase immigrants out of Georgia, how is it NOT like the Arizona law? If HB 87 will have the same deliterious effects on the economy and small business, how is NOT like the Arizona law?

Mr. Chairman, if it walks like a duck, and quacks like a duck, then, it is a duck. HB 87 (and its companion piece SB 40), is like the Arizona law. You can say it ain't so, and perhaps you can fool a few people, but we all know what is going on here.

How Much will SB 40 and HB 87 Cost?

2011-02-08T14:55:00.005-05:00

Why is no one asking how much SB 40 and HB 87 will cost the state of Georgia taxpayers? The startling numbers for the similar Utah legislation just came down--$11 Milllion Dollars! And that is in a state a third the size of Utah. Ask your Georgia Legislature today--how much "enforcing" federal law is going to cost the State of Georiga.

SB 40—The Emperor STILL Has No Clothes, or Exhibit A in Why States Should Not Attempt to Legislate on Immigration Matters

2011-02-03T01:41:00.005-05:00

If you thought HB 87 was the wrong path to follow to try to fix the problems associated with illegal immigration, then do not get on the SB 40 Super Highway. SB 40 has so many inconsistencies, incongruities, and flat out confusing sections that if by some miracle it is passed, it would never see the daylight of its effective date.

As with HB 87, it is not just the intent of this bill that matters. The actual wording of the bill, and its changes to Georgia law, are essential to an understanding why this bill will NOT stop illegal immigration, will NOT stop bad actor employers from hiring people who are undocumented, and will NOT in any way solve the problems associated with a broken FEDERAL immigration system.

SB 40 is much shorter in length than HB 87, and somewhat less expansive in its scope. Yet, it still manages to violate the constitution, misquote federal law, and create penalties for innocent mistakes. For example, the private right of action that is so pervasive in HB 87 is simply nonexistent in SB 40.

A SUMMARY OF SECTIONS OF SB 40

A review of the individual sections of SB 40 reveals its scope; it has to, since SB 40 has no name. That’s right Senator Murphy chose not to name his bill, jut describe it. What the bill fails to describe though, is Senator Murphy’s awkward attempt to exempt the largest sector of Georgia’s economy from compliance with the mandatory E-Verify requirement, at which it fails miserably. Let’s take a peak behind the curtain.

SECTION 1 –What Passes for Definitions

Section 1 of the bill creates a definition of “Agency Director” broad enough to include any individual in government with senior, elected, or oversight responsible for public policy for any public employer. Obviously, the expansion of the term “Agency Director” far beyond its ordinary meaning (e.g. head of an agency) is going to be essential element of other Sections of SB 40.

Section 1 also defines “federal work authorization program” to mean any federal government program to verify information on newly hired employees. The problem with this rather vague definition is that it could mean SEVERAL different programs, including E-Verify, SAVE, IMAGE, or any other program currently in existence or being developed by the federal government. This Section also defines a rather odd phrase: “Physical Performance of Services.” It is defined to mean PUBLIC works projects.

SECTION 2 – Immigration Compliance Issues for Public Employers and Contractors -- Bad Public Policy and Unenforceable

Section 2 then amends already existing Georgia law requiring public employers and state contractors to enroll in E-Verify, by requiring that these same public employers and state contractors to submit an “Affidavit” from any new contractor or subcontractor verifying compliance with the E-Verify requirement.

Section 2 then takes the current prohibition against suing polities and employers and allows suits against “Agency Heads” and hits with severe penalties the specific “Agency Head” who fails to have his “agency” comply with this law. It also suspends any state financial aid to public employer.

Section 2 also takes the rather remarkable step of going far beyond the federal requirements for document retention of employment verification documents (one year from date of termination or three years from date of hire, whichever is longer), and requires public employers to maintain immigration documentation (the Form I-9, and supporting documents) for five years (although it is unclear whether this means for 5 years AFTER termination, or for five years from the date of hire).

SECTION 3 – The Full Monty—E-Verify for All, Until a Judge Looks at It! -Void for Vagueness and Preempted by Federal Law

Section 3 makes E-Verify mandatory for every employer in Georgia, and shortens the federal time frame for using E-Verify on new employees, from the current 4 days to 3 days. This is likely just an example of the fact that the person drafting this bill did know or understand federal law; but it is still a deviation from what the federal government has set as the standards for employer compliance. The law then violates federal law by requiring the employer to maintain these records for 5 years, when the employer could, technically only have to maintain them for three years from date of termination if the person is terminated on day one of employment. This provision will clearly be struck down as preempted by Federal law. This area of law is completely preempted by the Federal employment verification process, and requiring more compliance in this area will simply not be found to be permissible.

Now, I need to note a key error in this Section. It says that “every employer operating under a business license” is required to register and use E-Verify. I don’t know if any one at the state legislature knows this or not, but Georgia does not have business licenses. They have tax registration certificates. So, technically, this Section would apply to no one!

Another MAJOR flaw with this Section is that it specifically exempts from such compliance requirement any employer who has “filed an H-1 or H-2 application, or similar type of application, with the United States Department of Labor.” This apparently was Senator Murphy’s way of trying to exempt the agricultural sector of Georgia’s economy from compliance. The only problems are that first, tthere is no such thing as an H-1 or H-2 applications; second, if Senator Murphy meant H-1B, H-2A an d H-2B applications, then every employer in Georgia who has hired an alien worker under these visas is going to be very happy to not have to comply with this provision, including, banks, engineering and accounting firms, computer consulting companies, landscapers, and farmers, and virtually every other industry in Georgia; and third, the United States Department of Labor does not adjudicate visa petitions (which this must be vaguely referencing), the Department of Homeland Security does. Frankly, it is truly embarrassing that a state legislator thought so little of the law that he wants passed and which he introduced into the public discussion, that he did not even consult with someone who actually understood federal immigration law. This provision is so vague that it would have to be stricken from the law the moment it is challenged. This really shows why a state should not be addressing federal immigration issues.

Section 3 also imbues the “Commissioner” with the power to investigate violations, including subpoena power, and for fines and penalties to far exceed those currently in place in the federal verification system. While these provisions purport to send a strong message encouraging compliance with federal verification requirements, they do nothing to actually ensure compliance because there is simply no funding allocated for the accomplishment of its purpose. Without actual funding this provision is essentially useless.

Section 3 then does something that is so remarkable in its utter uselessness that it causes one to pause and ask—did the person who wrote this actually use the internet? This part of Section 3, mandates that the Commissioner” ask from the Department of Homeland Security a list of companies in Georgia enrolled in E-Verify every six months. Why? This information is already publicly available to any person with a computer and access to the internet!

SECTION 4—Carry Your Papers Please!! – Preempted by Federal Law

Section 4 takes the Arizona Law and brings it to Georgia, mandating, in archaic language and citing federal law no longer in use, that all aliens carry with them at all times evidence of their immigration status. Section 4, citing to the Alien Registration Act of 1940, demands that every alien who is “required to register under federal law” carry with them proof of such registration. Unfortunately, aliens are not required to “register” under federal law unless the Attorney General so mandates. And except for a brief period in the previous decade, there has been no such registration requirement for more than 50 years. Oops! Perhaps whoever wrote this provision should have consulted with an immigration lawyer who actually understands federal law!

More importantly, Section 4 is one of the provisions of the Arizona law which was specifically found to be unconstitutional by a federal judge, for the very specific reason that this type of requirement of carrying documents verifying status is preempted by federal law. There is zero chance any court will find otherwise. So, why is this provision in SB 40? Good question.

SECTION 5 -- “Illegal Aliens” and Show Me Your Papers—Unconstitutional

Section 5 of SB 40 attempts to define something not defined under federal law—the nonexistent and intentionally offensive term “Illegal Alien.” And, it defines it in such a way that it could mean literally any person who breaks any federal law. Senator Murphy wants to define an “illegal alien” as “a person who has come to, entered, or remains in the United States in violation of federal law.” What? This provision, the first time it is used in a prosecution is going to be struck down for vagueness. Any person? So, a citizen who does not pay all their federal taxes because the improperly claim an exemption is an “illegal alien.” WOW, that is broad

Section 5 then goes on to mirror that part of HB 87 which allows a police officer to “ask for papers” anyone they have a reasonable cause to suspect is an “illegal alien.” Again, as in HB 87, this provision will be found to be unconstitutional. 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 obtaining their “reasonable suspicion” that the person is undocumented. No one has a problem with the police arresting criminals and checking their immigration status? But, that is not enough for the state legislature. This Section EXPANDS the definition of criminal related stops to now include “traffic offense!” 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 --can they be questioned about their status too? This provision has long reaching and very severe implications for anyone who is a friend of the Constitution.

Of course anyone who is found to not be legally present during this investigation will be turned over to ICE. The problem with this statute, as enunciated by the Federal Court Judge who already ruled on it, is that it impinges on the federal immigration enforcement process, and burdens legal immigrants and subjects them to unwarranted detention. The tiny modification made to the HB 87 from the Arizona legislation does NOTHING to change the effect of what the statute is doing, and thus it will also be unconstitutional.

Section 5 does something more though—it directly violates federal law, which states that local authorities may NOT hold any one on a federal immigration hold for more than 48 hours, by allowing state authorities to hold a person they suspect is an “illegal alien” for up to 7 days. Simply put this law directly violates existing federal law, and will be found preempted and unconstitutional as a result. It does not matter what crime you commit, the Constitution simply does not let you hold someone in state or federal criminal custody for 7 days without a hearing.

SECTIONS 6 and 7 – Public Agency Nightmare—Agency Heads are Getting the Boot

Section 6 and 7 once again define “Agency Head” in the context of another statute, and authorizes the same type of civil and criminal penalties against the “Agency Head” for failure to comply with the verification of identity for the provision of any public benefits by a public entity. This is different from HB 87, which allows private citizens to sue the political subdivision for non-compliance, but it leads to the same results for local governments - increased costs, lessened services, and a likely need to raise taxes.

SECTION 8—Severability for Unconstitutional Sections—This Will be Needed

Section 8 provides, with proper foresight, that should a Section of SB 40 be found to be unconstitutional, that the other Sections would “live on.” From my review of SB 40, this particular Section is absolutely necessary.

SB 40 Is Bad Public Policy

Like its companion piece in the House, HB 87, this bill does nothing to stop illegal immigration and does nothing to solve the problem of a broken immigration system. But it DOES increase government regulation, and will certainly lead to tax increases, lower employment as a result of unnecessary regulation of private business, and fewer government services. In an economy struggling to recover, you would think that State Legislators would actually be doing something to make Georgia better, not tear it down.