Illegal immigration.

WORKING DRAFT
2011
STATE OF
WYOMING
11LSO-0004

HOUSE BILL
NO.
HB0094

Illegal immigration.

Sponsored by:
Representative(s) Illoway, Childers, Davison, Jaggi, Kroeker, Petersen, Quarberg and Shepperson and Senator(s) Drisk
i
ll and Hicks

A BILL

for

AN ACT relating to
immigration; establishing
an offense for failure to carry an alien registration document; establishing offenses for unlawful hiring and unlawful employment; establishing an offense for unlawful transporting of aliens;
providing for the determination and communication of immigration status; prohibiting employment of unauthorized aliens; requiring employers to participate in the e-verify program; authorizing warrantless arrests for offenses that make a person removable from the United States; providing penalties; providing for severability of provisions;
and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.
W.S. 6
‑
5
‑
214
through 6
‑
5
‑
216
, 7
‑
2
‑
109
,
27
‑
15
‑
101
and 27
‑
15
‑
102
are created to read:

6
‑
5
‑
214.

Willful failure to complete or carry an alien registration document.

(a)

In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 1306(a)
.

(b)

In the enforcement of this section, immigration status may be determined by:

(i)

A peace officer who is authorized by the federal government to verify or ascertain an alien's immigration status;

(ii)

The
United States
immigration and customs enforcement or the
United States
customs and border protection pursuant to 8 U.S.C. § 1373(c).

(c)

A peace officer or other law enforcement official or law enforcement
agency
of this state or of a city, town, county or other political subdivision of this state shall not consider race, color or national origin in the enforcement of this section.

(d)

In addition to any other penalty prescribed by law, the court shall order a person convicted pursuant to this section to pay jail costs
as provided in W.S. 7
‑
3
‑
109
.

(e)

This section does not apply to any person who maintains authorization from the federal government to remain in the
United States
.

(f)

Any record that relates to the immigration status of a person is admissible in any court without further foundation testimony from a custodian of records if the record is certified as authentic by the government
agency
that is responsible for maintaining the record.

(g)

Any person violating
subsection (a) of
this section is guilty of a misdemeanor punishable by
a fine of not more than one hundred dollars ($100.00), imprisonment f
or
not more than twenty (20) days for a first conviction and thirty (30) days for a second or subsequent conviction, or both.

6
‑
5
‑
215.

Unlawful
stopping to hire; unlawful application,
solicitation
or employment.

(a)

A person is guilty of unlawful stopping to hire if an occupant of a motor vehicle that is stopped on
a street, roadway or highway
hire
s
or attempt
s
to hire and pick up
a passenger
for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

(b
)

A person is guilty of unlawful
application,
solicitation
or employment
if:

(i)

The person enters a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and be transported to a
different
location if the motor vehicle blocks or impedes the normal movement of traffic; or

(ii)

A person who is unlawfully present in the
United States
and who is an unauthorized alien
knowingly applies for work, solicits work in a public place or performs work as an employee or independent contractor in this state.

(c)

A peace officer or other law enforcement official or law enforcement
agency
of this state or of a city, town, county or other political subdivision of this state shall not consider race, color or national origin in the enforcement of this section.

(d)

In the enforcement of this section, immigration status may be determined by:

(i)

A peace officer who is authorized by the federal government to verify or ascertain an alien's immigration status;

(ii)

The
United States
immigration and customs enforcement or the
United States
customs and border protection pursuant to 8 U.S.C. § 1373(c).

(e)

Any person violating subsection (a) or (b) of this section is guilty of a misdemeanor
punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both
.

(f)

As used in this section:

(i)

"Solicit" means verbal or nonverbal communication, including a gesture or nod, that would indicate to a reasonable person that a person is willing to be employed;

(ii)

"Unauthorized alien" means an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. § 1324a(h)(3).

6
‑
5
‑
216.

Unlawful transporting, moving, concealing, harboring or shielding of unlawful aliens; exceptions.

(a)

A person is guilty of unlawful transporting, moving,
concealing
,
harboring
or shielding an unlawful alien if the person:

(i)

Transports
or moves, or attempts to transport or move an alien in this state in the
furtherance
of the illegal presence of the alien in the United States, in a
vehicle
, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law;

(ii)

Conceals, harbors or
shields
, or attempts to conceal, harbor or shield an alien from detection in any place in this state, including any building or
vehicle
, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law;

(iii)

Encourages or induces, including through an offer of employment, an alien to come to or remain in this state if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the
United States
in violation of law.

(b)

Any vehicle used in a violation of subsection (a) of this section is subject to immediate impoundment.

(c)

A peace officer or other law enforcement official or law enforcement
agency
of this state or of a city, town, county or other political subdivision of this state shall not consider race, color or national origin in the enforcement of this section.

(d)

In the enforcement of this section, immigration status may be determined by:

(i)

A peace officer who is authorized by the federal government to verify or ascertain an alien's immigration status;

(ii)

The
United States
immigration and customs enforcement or the
United States
customs and border protection pursuant to 8 U.S.C. § 1373(c).

(e)

This section does not apply to a child protective service worker acting in the worker's official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medical technician.

(f)

Any person violating subsection (a) of this section is guilty of a misdemeanor punishable by a fine of not less than one thousand dollars ($1,000.00), except that a violation of subsection (a) of this section that involves ten (10) or more unauthorized aliens is a felony punishable by a fine of not less than one thousand dollars ($1,000.00) per
unauthorized alien
.

7
‑
2
‑
109.

Cooperation and
assistance
in enforcement of immigration laws; indemnification.

(a)

No official or agency of this state or a city, town, county or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

(b)

For any lawful stop, detention or arrest made by a peace officer or other law enforcement official or law enforcement
agency
of this state or of a city, town, county or other political subdivision of this state in the enforcement of any other law or ordinance of this state or a city, town or county of this state where reasonable suspicion exists that the person
stopped, detained or arrested
i
s
an alien who is unlawfully
present in the United States, a reasonable attempt shall be made, when practicable, to
determine the immigration statu
s of the person, except if the determination may hi
n
der or obstruct an investigation. The immigration status of each person arrested in this state shall be determined prior to the release of the person. Determination of immigration status under this section shall be verified with the federal government pursuant to 8
U.S.C. § 1373(c).
A
peace officer or other law enforcement official or law enforcement
agency
of this state or of a city, town, county or other political subdivision of this state
shall
not
consider race, color or national origin in implementing the requirements of this section. A person is presumed to not be an alien who i
s
unlawfully present in the
United States
if the person provides the peace officer or other law enforcement official or agency any of the following:

(i)

A valid
Wyoming
driver's
license
;

(ii)

A valid identification card issued by the
Wyoming
department of transportation;

(iii)

A valid tribal identification card or other form of tribal identification;

(iv)

If the entity requires proof of legal presence in the
United States
prior to issuance,
any valid federal or state government issued
identification
card.

(c)

If an alien who is unlawfully present in the
United States

is convicted of a violation of state or local law, upon discharge from imprisonment or the assessment of any monetary obligation imposed, the appropriate state law enforcement agency shall immediately notify the
United
States
customs and border protection or the
United States
immigration and customs enforcement.

(d)

Notwithstanding any other provision of law, a law enforcement agency may securely transport an alien who the agency has received verification is unlawfully present in the United States and is in the custody of the agency to a federal facility in this state or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization prior to secur
ely transporting an alien who is
unlawfully present in the
United States
to a point of transfer outside of this state.

(e)

In the implementation of this section, an alien's immigration
status
may be determined by:

(i)

A peace officer who is authorized by the federal government to verify or ascertain an alien's immigration status;

(ii)

The
United States
immigration and customs enforcement or the
United States
customs and border protection pursuant to 8 U.S.C. § 1373(c).

(f)

Except as otherwise provided in federal law, peace officers and officials and agencies of this state and cities, towns, counties and other political subdivisions of this state shall not be prohibited or in any way restricted from sending, receiving or maintaining information relating to the immigration status, lawful or unlawful, of any individual or from exchanging that information with any other federal, state or local government entity for:

(i)

Determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state;

(ii)

Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state;

(iii)

If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by title II, chapter 7 of the federal
I
mmigration
and
N
ationality
A
ct;

(iv)

The purposes of 8 U.S.C. § 1373 and 8 U.S.C. § 1644.

(g)

This section does not implement, authorize or establish and shall not be construed to establish the
R
eal
ID A
ct of 2005
, P.L. 109-13, Division B, including the use of a radio frequency identification chip.

(h)

A person who is a legal resident of this state may bring an action in
district
court to challenge any official or agency of this state or a city, town, county or other political subdivision of this state that adopts or implements a policy which limits or restricts the enforcement of federal immigration laws, including 8 U.S.C. §§ 1377 and 1644, to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this subsection, the court shall order the entity to pay a civil penalty of not less than five hundred dollars ($500.00) and not more than five thousand dollars ($5,000.00) f
or each day that the policy
remained in effect after the filing of an action pursuant to this subsection.

(j)

A
ll fines and penalties collected under this section shall be paid to the state treasurer and credited as provided in W.S. 8
‑
1
‑
109.

(k)

The court may award court costs and reasonable attorney fees to any person or any official or agency of this state or a city, town, county or other subdivision of this state that
prevails
by an adjudication on the merits in a proceeding brought pursuant to subsection (h) of this section.

(m)

Unless the officer has been adjudged to have acted in bad faith, a peace officer or other law enforcement official acting pursuant to this section shall be indemnified by the officer's agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this section.

(n)

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

CHAPTER 15
UNAUTHORIZED ALIENS

27
‑
15
‑
101.

Employing unauthorized aliens; prohibition.

(a)

An employer shall not employ an unauthorized alien intentionally, knowingly or in reckless disregard of the fact that
the
alien has come to, has entered or remains in the
United States
in violation of law.

(b)

The attorney general shall prescribe a complaint form for a person to allege a violation of subsection (a) of this section. The complainant shall not be required to list the complainant's social security number on the complaint or to have the complaint
notarized
.
On
receipt
of
a complaint under this
section, the attorney general or
appropriate
district
attorney shall investigate whether the employer violated subsection (a) of this section. If a complaint is received that is not on a complaint form prescribed by the attorney general under this section, the attorney general or the
district
attorney may investigate whether the employer violated subsection (a) of this section. The attorney general or
district
attorney shall not investigate a complaint that is based solely upon
race, color or national origin. A person who files a false
or
frivolous complaint under this
section
is guilty of a misdemeanor.

(c)

In investigating a complaint under subsection (b) of this section, the attorney general or
district
attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. § 1373(c). No state, county or local official shall attempt to independently make a final determination as to whether an alien is authorized to work in the
United States
.

(d)

If, after investigation, the attorney general or
district
attorney determines that the
complaint
is not false
or
frivolous
:

(i)

The attorney general or
district
attorney shall notify the
United States
immigration and customs enforcement of the unauthorized alien;

(ii)

The attorney general or
district
attorney shall notify the appropriate local law enforcement agency of the unauthorized alien;

(iii)

If the complaint was filed with the attorney general, the attorney general shall notify the appropriate
district
attorney to bring an action pursuant to subsection (e) of this section.

(e)

The
district
attorney in the county where the unauthorized alien is or was employed shall bring an action in
district court. For any action in district court under this subsection, the court shall expedite the action including assigning the hearing at the earliest practicable date.

(f)

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

(i)

For a first violation, as provided in subsection (g) of this section, the court shall:

(A)

Order the employer to terminate the employment of all unauthorized aliens;

(B)

Order that the employer be subject to a five (5) year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports with the
district
attorney providing detailed information on each new employee hired by the employer at the business location where the unauthorized alien preformed work;

(C)

In addition to any suspension under subparagraph (D) of this paragraph, o
rder the appropriate agencies to suspend all licenses described in subparagraph (D) of this paragraph for not less than ten (10) days. The court shall determine the length of the suspension
based on the following factors, if relevant:

(I)

The number of unauthorized aliens employed by the employer;

(II)

Prior misconduct of the employer;

(III)

The degree of harm resulting from the violation;

(IV)

Whether the employer made good faith efforts to comply with applicable laws and requirements;

(V)

The duration of the violation;

(VI)

The role of directors, officers or principals of the employer in the violation;

(VII)

Any other factor the court deems appropriate.

(D)

Order the employer to file a signed sworn affidavit with the
district
attorney. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not intentionally, knowingly or recklessly employ an unauthorized alien in this state. If the employer fails to file an affidavit within three (3) days after an order is issued under this paragraph, the court shall order the appropriate agencies to suspend
all licenses
specified under this subparagraph. The licenses shall remain suspended until the employer files the signed affidavit. For the purposes of this
sub
paragraph, the licenses that are subject to suspension are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is required to operate the employer's business in general, the licenses subject to suspension under this paragraph are all licenses that are held by the employer at the employer's primary place of business.

(ii)

For a second violation, as provided in subsection (g) of this section, the court shall
order
the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is required to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On
receipt
of an order under this paragraph, and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

(g)

A violation of
sub
s
ection
(a) of this section
shall be considered:

(i)

A first violation if the violation did not occur during a probationary period ordered pursuant to W.S.
subparagraph
(f)(i)(B)
of this section
;

(ii)

A second violation if the violation occurred during a probationary period ordered pursuant to
subparagraph
(f)(i)(B)
of this section
.

(h)

The district court shall submit any order issued
pursuant
to subsection (f) of this section to the attorney general. The attorney general shall maintain copies of all orders received under this subsection and shall maintain a database of all employers and business locations that have a first violation of subsection (a) of this section. The attorney general shall make copies of court orders received under this subsection available on the attorney general's website.

(j)

In determining whether an employee is an unauthorized alien, the court shall consider the federal government's determination pursuant to 8 U.S.C. § 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. § 1373(c).

(k)

For the purposes of this section, proof that the employer verified the employment authorization of an employee through the
e
‑
verify program creates a rebuttable presumption that the employer did not intentionally, knowingly or recklessly employ an unauthorized alien.

(m)

For the purposes of this section, proof that the employer has complied in good faith with the requirements of 8 U.S.C. § 1324a(b) establishes an affirmative defense that the employer did not intentionally, knowingly or recklessly employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 U.S.C. § 1324a(b) notwithstanding isolated, sporadic or accidental technical or procedural failure to meet the requirements if there is a good faith attempt to meet the requirements.

(n)

It is an affirmative defense to a violation of subsection (a) of this section
that the employer was entrapped.
An employer that asserts an entrapment defense has the burden of proving by a preponderance of the evidence:

(i)

That the idea of committing the violation started with peace officers or their agents and not with the employer;

(ii)

That peace officers or their
agents
urged and induced the employer to commit the violation;

(iii)

That the employer was not predisposed to commit the violation before the peace officers or their agents urged and induced the employer to commit the violation.

(o)

An employer does not establish entrapment under s
ubsection (n) of this section if
the employer was predisposed to violate subsection (a) of this section and peace officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for peace officers or their agents to use a ruse or conceal their identity. The conduct of peace officers and their agents may be considered in determining if an employer has proven entrapment under subsection (n) of this section.

(p)

As used in this section, "employ" includes using a contract, subcontract or other independent contractor agreement to obtain the labor of an unauthorized alien or a person who employs or contracts with an unauthorized alien to perform labor.

27
‑
15
‑
102.

Verification of employment eligibility; e
-
verify program.

(a)

Every employer, after hiring a new employee, shall verify the employment
eligibility of the employee through the e
‑
verify program operated by the department of homeland security. The employer shall keep a record of each verification for the duration of the employee's employment or three (3) years, whichever is longer.

(b)

In addition to any other requirement, before receiving any economic
development incentive the employer shall provide proof to the government entity that the employer is registered with and is participating in the e
-
verify program.

(c)

At least quarterly, the attorney general shall request from the department of homeland security a list of employers from this state that are registered with the e
-
verify program. The attorney general shall make the list of employers available on the attorney general's website.

(d)

As used in this section, "economic development incentive" means any grant, loan or performance-based incentive from any government entity. "Economic development incentive" does not include any tax provision under title 39,
Wyoming
statutes.

Section 2.
W.S. 7
‑
2
‑
102(b)(ii) and by creating a new
paragraph
(iv) is amended to read:

7
‑
2
‑
102.

Preconditions for arrests.

(b)

A peace officer may arrest a person without a warrant when:

(ii)

The officer has probable cause to believe that a felony has been committed and that the person to be arrested has committed it;

or

(iv)

The officer has probable cause to believe that the person to be arrested has committed any offense that makes the person removable from the
United States
.

Section 3.

(a)

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

(b)

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

(c)

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

(d)

This act does not implement, authorize or establish and shall not be construed to implement or establish the
R
eal
ID A
ct of 2005, P.L. 109-13, Division B, including the use of a radio frequency identification chip.

(e)

Notwithstanding any other law, the attorney general shall act at the direction of the governor to defend any challenge to this act in a state or federal court.

(f)

Notwithstanding any other law, the governor may direct counsel other than the attorney general to appear on behalf of this state to defend any challenge to this act in a state or federal court.

Section
4
.
This act is effective July 1, 2011.

(END)

1
HB0094