Contact Attorney Richard Keyt: 480-664-7478|rk@keytlaw.com

Annotated Full Text of Arizona Immigration Law – SB 1070

Professor Gabriel “Jack” Chin of the University of Arizona School of Law has prepare an annotated version of the full text of Arizona’s immigration law, SB 1070.  the full text of SB 1070,  The complete text of Senate Bill 1070 prepared by Professor Chin has been published by the Arizona Republic.  Here are links to the highlights:
  • Background points
  • Who can get sued for what?
  • What Does the Law Require of Law Enforcement?
  • What uses of race do the U.S. and Arizona Constitutions permit and prohibit?
  • Alerting officials
  • What do the federal violations references consist of?
  • What is the interaction with freepseech and other rights?
  • Does this law make it a crime to be illegal on its face?

Text of Arizona’s Anti-Illegal Immigration Law – Part 5

Text of changes to Arizona Revised Statutes Sections 1-501  & 1-502 made by House Bill 2162 and new Sections 7, 8 & 9 of House Bill 2162 (effective July 29, 2010).  Deletions to text made by HB 2162 are show in red text that is lined out and new language is this color and underlined.  This post does not contain the entire text of the HB 2162.  Other changes made by HB 2162 are contained in parts 1, 2 & 3.  The entire Arizona immigration law  as amended by HB 2162 is contained in this part 5 and in:

The following Sections 1-501 and 1-502 are existing Arizona statutes as modified by HB 2162.  Sections 7, 8, and 9 of HB 2162 follow Section 1-502.

1-501.  Eligibility for federal public benefits; documentation; violation; classification; citizen suits; attorney fees; definition

A.  Notwithstanding any other state law and to the extent permitted by federal law, any natural person who applies for a federal public benefit that is administered by this state or a political subdivision of this state and that requires participants to be citizens of the United States, legal residents of the United States or otherwise lawfully present in the United States shall submit at least one of the following documents to the entity that administers the federal public benefit demonstrating lawful presence in the United States:

1.  An Arizona driver license issued after 1996 or an Arizona nonoperating identification license.
2.  A birth certificate or delayed birth certificate issued in any state, territory or possession of the United States.
3.  A United States certificate of birth abroad.
4.  A United States passport.
5.  A foreign passport with a United States visa.
6.  An I-94 form with a photograph.
7.  A United States citizenship and immigration services employment authorization document or refugee travel document.
8.  A United States certificate of naturalization.
9.  A United States certificate of citizenship.
10.  A tribal certificate of Indian blood.
11.  A tribal or bureau of Indian affairs affidavit of birth.

B.  For the purposes of administering the Arizona health care cost containment system, documentation of citizenship and legal residence shall conform with the requirements of title XIX of the social security act.

C.  To the extent permitted by federal law, an agency of this state or political subdivision of this state may allow tribal members, the elderly and persons with disabilities or incapacity of the mind or body to provide documentation as specified in section 6036 of the federal deficit reduction act of 2005 (P.L. 109-171; 120 Stat. 81) and related federal guidance in lieu of the documentation required by this section.

D.  Any person who applies for federal public benefits shall sign a sworn affidavit stating that the documents presented pursuant to subsection A of this section are true under penalty of perjury.

E.  Failure to report discovered violations of federal immigration law by an employee of an agency of this state or a political subdivision of this state that administers any federal public benefit is a class 2 misdemeanor.  If that employee’s supervisor knew of the failure to report and failed to direct the employee to make the report, the supervisor is guilty of a class 2 misdemeanor.

F.  This section shall be enforced without regard to race, color, religion, sex, age, disability or national origin.

G.  Any person who is a resident of this state has standing in any court of record to bring suit against any agent or agency of this state or its political subdivisions to remedy any violation of any provision of this section, including an action for mandamus.  Courts shall give preference to actions brought under this section over other civil actions or proceedings pending in the court.

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

IH.  For the purposes of this section, “federal public benefit” has the same meaning prescribed in 8 United States Code section 1611.

1-502.  Eligibility for state or local public benefits; documentation; violation; classification; citizen suits; attorney fees; definition

A.  Notwithstanding any other state law and to the extent permitted by federal law, any agency of this state or a political subdivision of this state that administers any state or local public benefit shall require each natural person who applies for the state or local public benefit to submit at least one of the following documents to the entity that administers the state or local public benefit demonstrating lawful presence in the United States:

1.  An Arizona driver license issued after 1996 or an Arizona nonoperating identification license.
2.  A birth certificate or delayed birth certificate issued in any state, territory or possession of the United States.
3.  A United States certificate of birth abroad.
4.  A United States passport.
5.  A foreign passport with a United States visa.
6.  An I-94 form with a photograph.
7.  A United States citizenship and immigration services employment authorization document or refugee travel document.
8.  A United States certificate of naturalization.
9.  A United States certificate of citizenship.
10.  A tribal certificate of Indian blood.
11.  A tribal or bureau of Indian affairs affidavit of birth.

B.  For the purposes of administering the Arizona health care cost containment system, documentation of citizenship and legal residence shall conform with the requirements of title XIX of the social security act.

C.  To the extent permitted by federal law, an agency of this state or political subdivision of this state may allow tribal members, the elderly and persons with disabilities or incapacity of the mind or body to provide documentation as specified in section 6036 of the federal deficit reduction act of 2005 (P.L. 109-171; 120 Stat. 81) and related federal guidance in lieu of the documentation required by this section.

D.  Any person who applies for state or local public benefits shall sign a sworn affidavit stating that the documents presented pursuant to subsection A of this section are true under penalty of perjury.

E.  Failure to report discovered violations of federal immigration law by an employee of an agency of this state or a political subdivision of this state that administers any state or local public benefit is a class 2 misdemeanor.  If that employee’s supervisor knew of the failure to report and failed to direct the employee to make the report, the supervisor is guilty of a class 2 misdemeanor.

F.  This section shall be enforced without regard to race, color, religion, sex, age, disability or national origin.

G.  Any person who is a resident of this state has standing in any court of record to bring suit against any agent or agency of this state or its political subdivisions to remedy any violation of any provision of this section, including an action for mandamus.  Courts shall give preference to actions brought under this section over other civil actions or proceedings pending in the court.

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

IH.  For the purposes of this section, “state or local public benefit” has the same meaning prescribed in 8 United States Code section 1621, except that it does not include commercial or professional licenses, or benefits provided by the public retirement systems and plans of this state or services widely available to the general population as a whole.

Sec. 7.  Joint border security advisory committee; membership; duties; report; delayed repeal

A.  The joint border security advisory committee is established consisting of the following members:

1.  The president of the senate or the president’s designee.
2.  The speaker of the house of representatives or the speaker’s designee.
3.  Two members of the house of representatives who are appointed by the speaker of the house of representatives.
4.  Two members of the senate who are appointed by the president of the senate.
5.  Six members who are appointed by the governor.

B.  Committee members are not eligible to receive compensation for committee activities but may be eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2, Arizona Revised Statutes.

C.  The president and the speaker of the house of representatives shall each appoint a cochairperson of the committee.

D.  The commission shall meet on the call of the two cochairpersons, but no more frequently than monthly.

E.  The committee may:

1.  Take testimony and other evidence regarding the international border with Mexico.
2.  Analyze border crossing statistics.
3.  Analyze related crime statistics.
4.  Make recommendations designed to increase border security.
5.  Make other recommendations deemed essential by the committee.

F.  The committee may use the services of legislative staff as required.

G.  Beginning November 30, 2010 and each month thereafter, the commission shall submit a written report of its findings and recommendations to the speaker of the house of representatives, the president of the senate and the governor.  The commission shall provide a copy of the report to the secretary of state.

H.  Notwithstanding any law to the contrary, the committee may vote to go into executive session to take testimony or evidence it considers sensitive or confidential in nature, which if released could compromise the security or safety of law enforcement or military personnel or a law enforcement or national guard law enforcement support operation.

I.  This section is repealed from and after December 31, 2014.

Sec. 8.  Immigration legislation challenges

A.  Notwithstanding title 41, chapter 1, Arizona Revised Statutes, and any other law, through December 31, 2010, the attorney general shall act at the direction of the governor in any challenge in a state or federal court to Laws 2010, chapter 113 and any amendments to that law.

B.  Notwithstanding title 41, chapter 1, Arizona Revised Statutes, and any other law, through December 31, 2010, the governor may direct counsel other than the attorney general to appear on behalf of this state to defend any challenge to Laws 2010, chapter 113 and any amendments to that law.

Sec. 9.  Conditional enactment

Sections 11‑1051, 13‑1509, 13-2928 and 13-2929, Arizona Revised Statutes, as amended by this act, do not become effective unless Senate Bill 1070, forty-ninth legislature, second regular session, relating to unlawfully present aliens, becomes law.

Text of Arizona’s Anti-Illegal Immigration Law – Part 4

Text of New Arizona Revised Statutes Sections 23-212, 23-212.01, 23-214, 28-3511 and 41-1274 (effective July 29, 2010).  This post does not contain the entire text of the new law.  The entire law is contained in this part 4 and in:

23-212.  Knowingly employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense

A.

[KEYTLaw Comment:  This subsection A is existing Arizona law that is not modified by the new law, but is referred to in the following new provisions. starting with subsection K.]  An employer shall not knowingly employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

K.  It is an affirmative defense to a violation of subsection A of this section that the employer was entrapped.  To claim entrapment, the employer must admit by the employer’s testimony or other evidence the substantial elements of the violation.  An employer who asserts an entrapment defense has the burden of proving the following by clear and convincing evidence:

1.  The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.
2.  The law enforcement officers or their agents urged and induced the employer to commit the violation.
3.  The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

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

23-212.01. Intentionally employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense

A.  [KEYTLaw Comment:  This subsection A is existing Arizona law that is not modified by the new law, but is referred to in the following new provisions starting with subsection K.]  An employer shall not intentionally employ an unauthorized alien.  If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer intentionally contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

K.  It is an affirmative defense to a violation of subsection A of this section that the employer was entrapped.  To claim entrapment, the employer must admit by the employer’s testimony or other evidence the substantial elements of the violation.  An employer who asserts an entrapment defense has the burden of proving the following by clear and convincing evidence:

1.  The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.
2.  The law enforcement officers or their agents urged and induced the employer to commit the violation.
3.  The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

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

23-214.  Verification of employment eligibility; e‑verify program; economic development incentives; list of registered employers

A.  After December 31, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program [KEYTLaw Comment:  The new law added the following text.] and shall keep a record of the verification for the duration of the employee’s employment or at least three years, whichever is longer.

28-3511.  Removal and immobilization or impoundment of vehicle

A.  [KEYTLaw Comment:  This subsection A is existing Arizona law that is not modified by the new law.  The new law adds new subsection 4.]  A peace officer shall cause the removal and either immobilization or impoundment of a vehicle if the peace officer determines that a person is driving the vehicle while any of the following applies:

4.  The person is in violation of a criminal offense and is transporting, moving, concealing, harboring or shielding or attempting to transport, move, conceal, harbor or shield an alien in this state 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.

41-1724.  Gang and immigration intelligence team enforcement mission fund

The gang and immigration intelligence team enforcement mission fund is established consisting of monies deposited pursuant to section 11‑1051 and monies appropriated by the legislature.  The department shall administer the fund.  Monies in the fund are subject to legislative appropriation and shall be used for gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration.

See the text of the entire Senate Bill 1070.

Text of Arizona’s Anti-Illegal Immigration Law – Part 3

Text of New Arizona Revised Statutes Sections 13-2319.E, 13-2928 and 13-2929 as revised by House Bill 2162 (effective July 29, 2010).  Deletions to text made by HB 2162 are show in red text that is lined out and new language is this color and underlined. This post does not contain the entire text of the new law.  The entire law is contained in this part 3 and in:

13-2319. Smuggling; classification; definitions

E.  Notwithstanding any other law, a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and this section.

13-2928.  Unlawful stopping to hire and pick up passengers for work; unlawful application, solicitation or employment; classification; definitions

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

B.  It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

C.  It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.

D.  A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona constitution.

E.  In the enforcement of this section, an alien’s immigration status may be determined by:

1.  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.|
2.  The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 United States Code section 1373(c).

FD.  A violation of this section is a class 1 misdemeanor.

GE.  For the purposes of this section:

1.  “Solicit” means verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed.

2.  “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 United States Code section 1324a(h)(3)

[KEYTLaw Comment:  This subsection states, “As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.”].

13-2929.  Unlawful transporting, moving, concealing, harboring or shielding of unlawful aliens; vehicle impoundment; classification

A.  It is unlawful for a person who is in violation of a criminal offense to:

1.  Transport or move or attempt to transport or move an alien in this state in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.
2.  Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.
3.  Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.

B.  A means of transportation that is used in the commission of a violation of this section is subject to mandatory vehicle immobilization or impoundment pursuant to section 28-3511 [KEYTLaw Comment:  When the new law become effective, the following new subsection A.4 will be added to section 28-3511:  “4.  The person is in violation of a criminal offense and is transporting, moving, concealing, harboring or shielding or attempting to transport, move, conceal, harbor or shield an alien in this state 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.”].

C.  A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona constitution.

D.  In the enforcement of this section, an alien’s immigration status may be determined by:

1.  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
2.  The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 United States Code section 1373(c).

EC.  This section does not apply to a child protective services 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 and who is transporting or moving an alien in this state pursuant to title 36, chapter 21.1.

FD.  A person who violates this section is guilty of a class 1 misdemeanor and is subject to a fine of at least one thousand dollars, except that a violation of this section that involves ten or more illegal aliens is a class 6 felony and the person is subject to a fine of at least one thousand dollars for each alien who is involved.

See the text of the entire Senate Bill 1070.

Text of Arizona’s Anti-Illegal Immigration Law – Part 1

There has been a great outcry in the press and on the internet about the terrible new anti-illegal immigrant law signed into law by Arizona Governor Jan Brewer on April 23, 2010.  The sad reality is that very few people on both sides of the issue have actually read the new law, but their ignorance of the law does not stop them from making statements about  it.

This post is part 1 of 5 posts that contain the entire text of Arizona Senate Bill 1070, (aka SB 1070) as as revised by House Bill 2162 (aka HB 2162) on April 30, 2010.  The new illegal immigration law / anti-immigrant law becomes law on July 29, 2010.   Deletions to text made by HB 2162 are show in red text that is lined out and new language is this color and underlined.

The other four posts found are here:

The first thing the new law does is require that all state and local agencies and personnel refrain from not enforcing EXISTING federal laws.  A number of elected and non-elected Arizona government officials have made the decision without any legal basis to not enforce existing immigration laws.  The question now becomes will these same people ignore the new Arizona law?

One of the most controversial provisions of the new law is the requirement that people must prove they are legally in the U.S. when asked by a police officer.  For most people, they can prove legal status merely by showing the officer a valid Arizona driver’s license, a valid tribal enrollment card or other form of tribal identification, a valid  Arizona nonoperating identification license or any valid United States federal, state or local government issued identification.

Text of New Arizona Revised Statutes Section 11-1051 (effective 90 days after the end of the current Arizona legislative session).

A.  No official or agency of this state or a county, city, town 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 contact stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien who and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.  Any person who is arrested shall have the person’s immigration status determined before the person is released.  The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c).  A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.  A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1.  A valid Arizona driver license.
2.  A valid Arizona nonoperating identification license.
3.  A valid tribal enrollment card or other form of tribal identification.
4.  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

C.  If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States immigration and customs enforcement or the United States customs and border protection shall be immediately notified.

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

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

1.  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
2.  The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 United States Code section 1373(c).

FE.  Except as provided in federal law, officials or agencies of this state and counties, cities, towns and other political subdivisions of this state may not be prohibited or in any way be restricted from sending, receiving or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other federal, state or local governmental entity for the following official purposes:

1.  Determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state.
2.  Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state.
3.  If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by title II, chapter 7 of the federal immigration and Nationality act.
4.  Pursuant to 8 United States Code section 1373 and 8 United States Code section 1644.

GF.  This section does not implement, authorize or establish and shall not be construed to implement, authorize or establish the REAL ID act of 2005 (P.L. 109-13, division B; 119 Stat. 302), including the use of a radio frequency identification chip.

HG.  A person who is a legal resident of this state may bring an action in superior court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws including 8 United States Code sections 1373 and 1644, to less than the full extent permitted by federal law.  If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than one thousand five hundred dollars and not more than five thousand dollars for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.

IH.  A court shall collect the civil penalty prescribed in subsection G of this section and remit the civil penalty to the state treasurer for deposit in the gang and immigration intelligence team enforcement mission fund established by section 41‑1724

[KEYTLaw Comment:  This section is part of the new law and reads as follows:  41-1724.  Gang and immigration intelligence team enforcement mission fund. The gang and immigration intelligence team enforcement mission fund is established consisting of monies deposited pursuant to section 11‑1051 and monies appropriated by the legislature.  The department shall administer the fund.  Monies in the fund are subject to legislative appropriation and shall be used for gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration.].

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

KJ.  Except in relation to matters in which the officer is adjudged to have acted in bad faith, a law enforcement officer is indemnified by the law enforcement officer’s agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.

LK.  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.

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