Georgia Latino Alliance for Human Rights et al v. Deal et al

Filing 29

MOTION for Preliminary Injunction with Brief In Support by Alterna, Asian American Legal Advocacy Center, Paul Bridges, Coalition for the People's Agenda, Coalition of Latino Leaders, DREAM Activist.org, Jane Doe # 1, John Doe # 1, Jane Doe # 2, John Doe # 2, Paul J. Edwards, Georgia Latino Alliance for Human Rights, Sharon Gruner, Everitt Howe, Instituto de Mexico, Inc. of Atlanta, Ernesto Pinon, Service Employees International Union, Jaypaul Singh, Southern Regional Joint Board of Workers' United, Benjamin Speight, Task Force for the Homeless. (Attachments: # 1 Brief Memorandum in Support of Motion for Preliminary Injunction, # 2 Index of Exhibits, # 3 Exhibit Exhibit 1 Georgia House Bill 87, # 4 Exhibit Exhibit 2 Declaration of Abraham F. Lowenthal, # 5 Exhibit Exhibit 3 Declaration of Jane Doe 2, # 6 Exhibit Exhibit 4 Declaration of David S. Kennedy, Jr., # 7 Exhibit Exhibit 5 Declaration of Paul Bridges, # 8 Exhibit Exhibit 6 Declaration of Benjamin Speight, # 9 Exhibit Exhibit 7 Declaration of Everitt Howe, # 10 Exhibit Exhibit 8 Declaration of Paul C. Edwards, Jr., # 11 Exhibit Exhibit 9 Declaration of Sharon Gruner, # 12 Exhibit Exhibit 10 Declaration of Jane Doe 1, # 13 Exhibit Exhibit 11 Declaration of George Gascon, # 14 Exhibit Exhibit 12 Declaration of Eduardo Gonzalez, # 15 Exhibit Exhibit 13 Declaration of Lewis Smith, # 16 Exhibit Exhibit 14 Declaration of Ernesto Pion, # 17 Exhibit Exhibit 15 Declaration of Jaypaul Singh, # 18 Exhibit Exhibit 16 Declaration of John Doe 1, # 19 Exhibit Exhibit 17 Declaration of John Doe 2, # 20 Exhibit Exhibit 18 Declaration of Silvia America Gruner, # 21 Exhibit Exhibit 19 Declaration of Anton Flores, # 22 Exhibit Exhibit 20 Declaration of Adelina C. Nicholls, # 23 Exhibit Exhibit 21 Declaration of Anita Beaty, # 24 Exhibit Exhibit 22 Declaration of Helen Kim Ho, # 25 Exhibit Exhibit 23 Declaration of Mohammad Abdollahi Ali-Beik, # 26 Exhibit Exhibit 24 Declaration of Eliseo Medina, # 27 Exhibit Exhibit 25 Declaration of Harris Raynor, # 28 Exhibit Exhibit 26 Declaration of Gabriela Gonzalez-Lamberson, # 29 Exhibit Exhibit 27 Declaration of Molly Lauterback and Exhibits A through F, # 30 Exhibit Exhibit 28 Exhibits G through J for Declaration of Molly Lauterback, # 31 Exhibit Exhibit 29 Exhibits K through M for Declaration of Molly Lauterback, # 32 Text of Proposed Order Proposed Order Granting Motion for Preliminary Injunction)(Lapointe, Michelle) (Attachment 20 replaced on 6/10/2011) (dgs). (Attachment 29 replaced on 6/10/2011) (dgs).

EXHIBIT 1

11

HB 87/AP

House Bill 87 (AS PASSED HOUSE AND SENATE)
By: Representatives Ramsey of the 72nd, Golick of the 34th, Dempsey of the 13th, Austin of
the 10th, Allison of the 8th, and others

A BILL TO BE ENTITLED
AN ACT

1 To enact the "Illegal Immigration Reform and Enforcement Act of 2011"; to amend Article
2 3 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated, relating to security
3 and immigration compliance, so as to provide penalties for the failure of a public employer
4 to utilize the federal work authorization program; to require certain private employers to
5 utilize the federal work authorization program; to provide for review by the state auditor and
6 the Department of Labor; to provide for definitions; to amend Title 16 of the Official Code
7 of Georgia Annotated, relating to crimes and offenses, so as to provide for offenses involving
8 illegal aliens; to provide for the offense of aggravated identity fraud; to provide for penalties;
9 to amend Chapter 5 of Title 17 of the Official Code of Georgia Annotated, relating to
10 searches and seizures, so as to provide for the investigation of illegal alien status; to amend
11 Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and
12 agencies, so as to provide authority for law enforcement officers to enforce federal
13 immigration laws under certain circumstances and to provide immunity for such officers
14 subject to limitations; to provide for civil and criminal penalties; to modify provisions
15 relating to training peace officers for enforcement of immigration and custom laws; to
16 establish grant funding for local law enforcement agencies to enter into agreements with
17 federal agencies for the enforcement of immigration law; to amend Chapter 60 of Title 36
18 of the Official Code of Georgia Annotated, relating to general provisions applicable to local
19 governments, so as to require proof that private businesses are participating in the
20 employment eligibility verification system prior to the issuance of a business license or other
21 documents; to amend Title 42 of the Official Code of Georgia Annotated, relating to penal
22 institutions, so as to provide for the verification of the immigration status of foreign nationals
23 arrested and held in a county or municipal jail; to provide that local governing authorities that
24 have entered or attempted to enter into certain memorandums of agreement with the federal
25 government shall receive additional funding for confinement of state inmates; to provide for
26 a funding contingency; to amend Title 45 of the Official Code of Georgia Annotated, relating
27 to public officers and employees, so as to provide for penalties for failure of agency heads
28 to abide by certain state immigration laws; to amend Chapter 36 of Title 50 of the Official
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29 Code of Georgia Annotated, relating to verification of lawful presence within the United
30 States, so as to provide for identification documents by applicants for public benefits; to
31 enact the "Secure and Verifiable Identity Document Act"; to provide penalties for the failure
32 of an agency head to verify the lawful immigration status of certain applicants for public
33 benefits; to establish the Immigration Enforcement Review Board; to establish a study on the
34 impact of immigration reform on Georgia's agricultural industry within the Department of
35 Agriculture; to provide for related matters; to provide for an effective date and applicability;
36 to repeal conflicting laws; and for other purposes.

37

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

38

SECTION 1.

39 This Act shall be known and may be cited as the "Illegal Immigration Reform and
40 Enforcement Act of 2011."

41

SECTION 2.

42 Article 3 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated, relating to
43 security and immigration compliance, is amended by revising Code Section 13-10-90,
44 relating to definitions, as follows:
45

"13-10-90.

46

As used in this article, the term:

47

(1) 'Commissioner' means the Commissioner of the Georgia Department of Labor.

48

(2) 'Contractor' means a person or entity that enters into a contract for the physical

49

performance of services with a public employer.

50

(2)(3) 'Federal work authorization program' means any of the electronic verification of

51

work authorization programs operated by the United States Department of Homeland

52

Security or any equivalent federal work authorization program operated by the United

53

States Department of Homeland Security to verify employment eligibility information of

54

newly hired employees, pursuant to the Immigration Reform and Control Act of 1986

55

(IRCA), D.L. 99-603 commonly known as E-Verify, or any subsequent replacement

56

program.

57

(2.1)(4) 'Physical performance of services' means the building, altering, repairing,

58

improving, or demolishing of any public structure or building or other public

59

improvements of any kind to public real property within this state, including the

60

construction, reconstruction, or maintenance of all or part of a public road; or any other

61

performance of labor for a public employer within this state under a contract or other

62

bidding process.
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(3)(5) 'Public employer' means every department, agency, or instrumentality of the state

64

or a political subdivision of the state with more than one employee.

65

(4)(6) 'Subcontractor' means a person or entity having privity of contract with a

66

contractor and includes a subcontractor, contract employee, or staffing agency, or any

67

contractor regardless of its tier.

68

(7) 'Sub-subcontractor' means a person or entity having privity of contract with a

69

subcontractor or privity of contract with another person or entity contracting with a

70

subcontractor or sub-subcontractor."

71

SECTION 3.

72 Said article is further amended by revising subsections (a) and (b) of Code Section 13-10-91,
73 relating to the verification of new employee eligibility, applicability, and rules and
74 regulations, as follows:
75

"(a) Every public employer, including, but not limited to, every municipality and county,

76

shall register and participate in the federal work authorization program to verify

77

employment eligibility of all newly hired employees. Upon federal authorization, a public

78

employer shall permanently post the employer's federally issued user identification number

79

and date of authorization, as established by the agreement for authorization, on the

80

employer's website; provided, however, that if a local public employer does not maintain

81

a website, the identification number and date of authorization shall be published annually

82

in the official legal organ for the county. then the local government shall submit such

83

information to the Carl Vinson Institute of Government of the University of Georgia to be

84

posted by the institute on the website created for local government audit and budget

85

reporting. The Carl Vinson Institute of Government of the University of Georgia shall

86

maintain the information submitted and provide instructions and submission guidelines for

87

local governments. State departments, agencies, or instrumentalities may satisfy the

88

requirement of this Code section by posting information required by this Code section on

89

one website maintained and operated by the state.

90

(b)(1) No A public employer shall not enter into a contract pursuant to this chapter for

91

the physical performance of services within this state unless the contractor registers and

92

participates in the federal work authorization program to verify information of all newly

93

hired employees or subcontractors. Before a bid for any such service is considered by a

94

public employer, the bid shall include a signed, notarized affidavit from the contractor

95

attesting to the following:

96

(A) The affiant has registered with and, is authorized to use, and uses the federal work

97

authorization program;

98

(B) The user identification number and date of authorization for the affiant; and
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(C) The affiant is using and will continue to use the federal work authorization

100

program throughout the contract period; and

101

(D) The affiant will contract for the physical performance of services in satisfaction of

102

such contract only with subcontractors who present an affidavit to the contractor with

103

the same information required by subparagraphs (A), (B), and (C) of this paragraph.

104

An affidavit required by this subsection shall be considered an open public record once

105

a public employer has entered into a contract for physical performance of services;

106

provided, however, that any information protected from public disclosure by federal law

107

or by Article 4 of Chapter 18 of Title 50 shall be redacted. Affidavits shall be maintained

108

by the public employer for five years from the date of receipt.

109

(2) A contractor shall not enter into any contract with a public employer for No

110

contractor or subcontractor who enters a contract pursuant to this chapter with a public

111

employer or a contractor of a public employer shall enter into such a contract or

112

subcontract in connection with the physical performance of services within this state

113

unless the contractor or subcontractor registers and participates in the federal work

114

authorization program to verify information of all newly hired employees.

115

employee, contractor, or subcontractor of such contractor or subcontractor shall also be

116

required to satisfy the requirements of this paragraph.

117

(3) Upon contracting with a new subcontractor, a contractor or subcontractor shall, as a

118

condition of any contract or subcontract entered into pursuant to this chapter, provide a

119

public employer with notice of the identity of any and all subsequent subcontractors hired

120

or contracted by that contractor or subcontractor. Such notice shall be provided within

121

five business days of entering into a contract or agreement for hire with any

122

subcontractor. Such notice shall include an affidavit from each subsequent contractor

123

attesting to the subcontractor's name, address, user identification number, and date of

124

authorization to use the federal work authorization program.

125

(3) A subcontractor shall not enter into any contract with a contractor unless such

126

subcontractor registers and participates in the federal work authorization program. A

127

subcontractor shall submit, at the time of such contract, an affidavit to the contractor in

128

the same manner and with the same information required in paragraph (1) of this

129

subsection. It shall be the duty of any subcontractor receiving an affidavit from a

130

sub-subcontractor to forward notice to the contractor of the receipt, within five business

131

days of receipt, of such affidavit. It shall be the duty of a subcontractor receiving notice

132

of receipt of an affidavit from any sub-subcontractor that has contracted with a

133

sub-subcontractor to forward, within five business days of receipt, a copy of such notice

134

to the contractor.

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(4) A sub-subcontractor shall not enter into any contract with a subcontractor or

136

sub-subcontractor unless such sub-subcontractor registers and participates in the federal

137

work authorization program. A sub-subcontractor shall submit, at the time of such

138

contract, an affidavit to the subcontractor or sub-subcontractor with whom such

139

sub-subcontractor has privity of contract, in the same manner and with the same

140

information required in paragraph (1) of this subsection. It shall be the duty of any

141

sub-subcontractor to forward notice of receipt of any affidavit from a sub-subcontractor

142

to the subcontractor or sub-subcontractor with whom such receiving sub-subcontractor

143

has privity of contract.

144

(5) In lieu of the affidavit required by this subsection, a contractor, subcontractor, or

145

sub-subcontractor who has no employees and does not hire or intend to hire employees

146

for purposes of satisfying or completing the terms and conditions of any part or all of the

147

original contract with the public employer shall instead provide a copy of the state issued

148

driver's license or state issued identification card of such contracting party and a copy of

149

the state issued driver's license or identification card of each independent contractor

150

utilized in the satisfaction of part or all of the original contract with a public employer.

151

A driver's license or identification card shall only be accepted in lieu of an affidavit if it

152

is issued by a state within the United States and such state verifies lawful immigration

153

status prior to issuing a driver's license or identification card. For purposes of satisfying

154

the requirements of this subsection, copies of such driver's license or identification card

155

shall be forwarded to the public employer, contractor, subcontractor, or sub-subcontractor

156

in the same manner as an affidavit and notice of receipt of an affidavit as required by

157

paragraphs (1), (3), and (4) of this subsection. Not later than July 1, 2011, the Attorney

158

General shall provide a list of the states that verify immigration status prior to the

159

issuance of a driver's license or identification card and that only issue licenses or

160

identification cards to persons lawfully present in the United States. The list of verified

161

state drivers' licenses and identification cards shall be posted on the website of the State

162

Law Department and updated annually thereafter. In the event that a contractor,

163

subcontractor, or sub-subcontractor later determines that he or she will need to hire

164

employees to satisfy or complete the physical performance of services under an

165

applicable contract, then he or she shall first be required to comply with the affidavit

166

requirements of this subsection.

167

(6) It shall be the duty of the contractor to submit copies of all affidavits, drivers'

168

licenses, and identification cards required pursuant to this subsection to the public

169

employer within five business days of receipt. No later than August 1, 2011, the

170

Departments of Audits and Accounts shall create and post on its website form affidavits

171

for the federal work authorization program. The affidavits shall require fields for the
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172

following information: the name of the project, the name of the contractor, subcontractor,

173

or sub-subcontractor, the name of the public employer, and the employment eligibility

174

information required pursuant to this subsection.

175

(7)(A) Not later than December 31 of each year, a public employer shall submit a

176

compliance report to the state auditor certifying compliance with the provisions of this

177

subsection. Such compliance report shall contain the public employer's federal work

178

authorization program verification user number and date of authorization and the legal

179

name, address, and federal work authorization program user number of the contractor

180

and the date of the contract between the contractor and public employer. Subject to

181

available funding, the state auditor shall conduct annual compliance audits on a

182

minimum of at least one-half of the reporting agencies and publish the results of such

183

audits annually on the department's website on or before September 30.

184

(B) If the state auditor finds a political subdivision to be in violation of this subsection,

185

such political subdivision shall be provided 30 days to demonstrate to the state auditor

186

that such political subdivision has corrected all deficiencies and is in compliance with

187

this subsection. If, after 30 days, the political subdivision has failed to correct all

188

deficiencies, such political subdivision shall be excluded from the list of qualified local

189

governments under Chapter 8 of Title 50 until such time as the political subdivision

190

demonstrates to the state auditor that such political subdivision has corrected all

191

deficiencies and is in compliance with this subsection.

192

(C)(i) At any time after the state auditor finds a political subdivision to be in violation

193

of this subsection, such political subdivision may seek administrative relief through

194

the Office of State Administrative Hearings.

195

administrative relief, the time for correcting deficiencies shall be tolled, and any

196

action to exclude the political subdivision from the list of qualified governments

197

under Chapter 8 of Title 50 shall be suspended until such time as a final ruling

198

upholding the findings of the state auditor is issued.

199

(ii)

200

subdivision shall be deemed satisfactory and shall correct the prior deficient

201

compliance report so long as the new report fully complies with this subsection.

202

(iii) No political subdivision of this state shall be found to be in violation of this

203

subsection by the state auditor as a result of any actions of a county constitutional

204

officer.

If a political subdivision seeks

A new compliance report submitted to the state auditor by the political

205

(D) If the state auditor finds any political subdivision which is a state department or

206

agency to be in violation of the provisions of this subsection twice in a five-year period,

207

the funds appropriated to such state department or agency for the fiscal year following

208

the year in which the agency was found to be in violation for the second time shall be
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not greater than 90 percent of the amount so appropriated in the second year of such

210

noncompliance. Any political subdivision found to be in violation of the provisions of

211

this subsection shall be listed on www.open.georgia.gov or another official state

212

website with an indication and explanation of each violation.

213

(4)(8) Contingent upon appropriation or approval of necessary funding and in order to

214

verify compliance with the provisions of this subsection, each year the Commissioner

215

shall conduct no fewer than 100 random audits of public employers and contractors or

216

may conduct such an audit upon reasonable grounds to suspect a violation of this

217

subsection. The results of the audits shall be published on the www.open.georgia.gov

218

website and on the Georgia Department of Labor's website no later than December 31 of

219

each year. The Georgia Department of Labor shall seek funding from the United States

220

Secretary of Labor to the extent such funding is available.

221

(5)(9) Any person who knowingly and willfully makes a false, fictitious, or fraudulent

222

statement in an affidavit submitted pursuant to this subsection shall be guilty of a

223

violation of Code Section 16-10-20 and, upon conviction, shall be punished as provided

224

in such Code section. Contractors and, subcontractors, sub-subcontractors, and any

225

person convicted for false statements based on a violation of this subsection shall be

226

prohibited from bidding on or entering into any public contract for 12 months following

227

such conviction. A contractor, subcontractor, or sub-subcontractor that has been found

228

by the Commissioner to have violated this subsection shall be listed by the Department

229

of Labor on www.open.georgia.gov or other official website of the state with public

230

information regarding such violation, including the identity of the violator, the nature of

231

the contract, and the date of conviction. A public employee, contractor, subcontractor,

232

or sub-subcontractor shall not be held civilly liable or criminally responsible for

233

unknowingly or unintentionally accepting a bid from or contracting with a contractor,

234

subcontractor, or sub-subcontractor acting in violation of this subsection. Any contractor,

235

subcontractor, or sub-subcontractor found by the Commissioner to have violated this

236

subsection shall, on a second or subsequent violations, be prohibited from bidding on or

237

entering into any public contract for 12 months following the date of such finding.

238

(10) There shall be a rebuttable presumption that a public employer, contractor,

239

subcontractor, or sub-subcontractor receiving and acting upon an affidavit conforming

240

to the content requirements of this subsection does so in good faith, and such public

241

employer, contractor, subcontractor, or sub-subcontractor may rely upon such affidavit

242

as being true and correct. The affidavit shall be admissible in any court of law for the

243

purpose of establishing such presumption.

244

(11) Documents required by this Code section may be submitted electronically, provided

245

the submission complies with Chapter 12 of Title 10."
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SECTION 4.

247 Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is
248 amended in Article 8 of Chapter 9, relating to identity fraud, by adding a new Code section
249 to read as follows:
250

"16-9-121.1.

251

(a) A person commits the offense of aggravated identity fraud when he or she willfully and

252

fraudulently uses any counterfeit or fictitious identifying information concerning a real,

253

fictitious, or deceased person with intent to use such counterfeit or fictitious identifying

254

information for the purpose of obtaining employment.

255

(b) The offense created by this Code section shall not merge with any other offense."

256

SECTION 5.

257 Said article of said title is further amended by revising Code Section 16-9-126, relating to
258 penalties for violations, as follows:
259

"16-9-126.

260

(a) A violation of this article, other than a violation of Code Section 16-9-121.1 or

261

16-9-122, shall be punishable by imprisonment for not less than one nor more than ten

262

years or a fine not to exceed $100,000.00, or both. Any person who commits such a

263

violation for the second or any subsequent offense shall be punished by imprisonment for

264

not less than three nor more than 15 years, a fine not to exceed $250,000.00, or both.

265

(a.1) A violation of Code Section 16-9-121.1 shall be punishable by imprisonment for not

266

less than one nor more than 15 years, a fine not to exceed $250,000.00, or both, and such

267

sentence shall run consecutively to any other sentence which the person has received.

268

(b) A violation of this article which does not involve the intent to commit theft or

269

appropriation of any property, resource, or other thing of value that is committed by a

270

person who is less than 21 years of age shall be punishable by imprisonment for not less

271

than one nor more than three years or a fine not to exceed $5,000.00, or both.

272

(c) Any person found guilty of a violation of this article may be ordered by the court to

273

make restitution to any consumer victim or any business victim of such fraud.

274

(d) Each violation of this article shall constitute a separate offense.

275

(e) Upon a conviction of a violation of this article, the court may issue any order necessary

276

to correct a public record that contains false information resulting from the actions which

277

resulted in the conviction."

278

SECTION 6.

279 Said article of said title is further amended by revising Code Section 16-9-128, relating to
280 exemptions, as follows:
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"16-9-128.

282

(a) The prohibitions set forth in Code Sections 16-9-121, 16-9-121.1, and 16-9-122 shall

283

not apply to nor shall any cause of action arise under Code Sections 16-9-129 and 16-9-131

284

for:

285

(1) The lawful obtaining of credit information in the course of a bona fide consumer or

286

commercial transaction;

287

(2) The lawful, good faith exercise of a security interest or a right to offset by a creditor

288

or a financial institution;

289

(3) The lawful, good faith compliance by any party when required by any warrant, levy,

290

garnishment, attachment, court order, or other judicial or administrative order, decree, or

291

directive; or

292

(4) The good faith use of identifying information with the permission of the affected

293

person.

294

(b) The exemptions provided in subsection (a) of this Code section will shall not apply to

295

a person intending to further a scheme to violate Code Section 16-9-121, 16-9-121.1, or

296

16-9-122.

297

(c) It is shall not be necessary for the state to negate any exemption or exception in this

298

article in any complaint, accusation, indictment, or other pleading or in any trial, hearing,

299

or other proceeding under this article involving a business victim. In such cases, the

300

burden of proof of any exemption or exception is upon the business victim claiming it."

301

SECTION 7.

302 Said title is further amended in Chapter 11, relating to offenses against public order and
303 safety, by adding a new article to read as follows:
"ARTICLE 5

304

305

16-11-200.

306

(a) As used in this Code section, the term:

307

(1) 'Illegal alien' means a person who is verified by the federal government to be present

308

in the United States in violation of federal immigration law.

309

(2) 'Motor vehicle' shall have the same meaning as provided in Code Section 40-1-1.

310

(b) A person who, while committing another criminal offense, knowingly and intentionally

311

transports or moves an illegal alien in a motor vehicle for the purpose of furthering the

312

illegal presence of the alien in the United States shall be guilty of the offense of

313

transporting or moving an illegal alien.

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(c) Except as provided in this subsection, a person convicted for a first offense of

315

transporting or moving an illegal alien who moves seven or fewer illegal aliens at the same

316

time shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by

317

imprisonment not to exceed 12 months, a fine not to exceed $1,000.00, or both. A person

318

convicted for a second or subsequent offense of transporting or moving an illegal alien, and

319

a person convicted on a first offense of transporting or moving an illegal alien who moves

320

eight or more illegal aliens at the same time, shall be guilty of a felony and, upon

321

conviction thereof, shall be punished by imprisonment of not less than one or more than

322

five years, a fine of not less than $5,000.00 or more than $20,000.00, or both. A person

323

who commits the offense of transporting or moving an illegal alien who does so with the

324

intent of making a profit or receiving anything of value shall be guilty of a felony and,

325

upon conviction thereof, shall be punished by imprisonment of not less than one or more

326

than five years, a fine of not less than $5,000.00 or more than $20,000.00, or both.

327

(d) This Code section shall not apply to:

328

(1) A government employee transporting or moving an illegal alien as a part of his or her

329

official duties or to any person acting at the direction of such employee;

330

(2) A person who transports an illegal alien to or from a judicial or administrative

331

proceeding when such illegal alien is required to appear pursuant to a summons,

332

subpoena, court order, or other legal process;

333

(3) A person who transports an illegal alien to a law enforcement agency or a judicial

334

officer for official government purposes;

335

(4) An employer transporting an employee who was lawfully hired; or

336

(5) A person providing privately funded social services.

337

16-11-201.

338

(a) As used in this Code section, the term:

339

(1) 'Harboring' or 'harbors' means any conduct that tends to substantially help an illegal

340

alien to remain in the United States in violation of federal law but shall not include a

341

person providing services to infants, children, or victims of a crime; a person providing

342

privately funded social services; a person providing emergency medical service; or an

343

attorney or his or her employees for the purpose of representing a criminal defendant.

344

(2) 'Illegal alien' means a person who is verified by the federal government to be present

345

in the United States in violation of federal immigration law.

346

(b) A person who is acting in violation of another criminal offense and who knowingly

347

conceals, harbors, or shields an illegal alien from detection in any place in this state,

348

including any building or means of transportation, when such person knows that the person

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being concealed, harbored, or shielded is an illegal alien, shall be guilty of the offense of

350

concealing or harboring an illegal alien.

351

(c) Except as provided in this subsection, a person convicted of concealing or harboring

352

an illegal alien who conceals or harbors seven or fewer illegal aliens at the same time in

353

the same location shall be guilty of a misdemeanor and, upon conviction thereof, shall be

354

punished by imprisonment not to exceed 12 months, a fine not to exceed $1,000.00, or

355

both. A person convicted of concealing or harboring an illegal alien who conceals or

356

harbors eight or more illegal aliens at the same time in the same location, or who conceals

357

or harbors an illegal alien with the intent of making a profit or receiving anything of value,

358

shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment

359

of not less than one or more than five years, a fine of not less than $5,000.00 or more than

360

$20,000.00, or both.

361

(d) This Code section shall not apply to a government employee or any person acting at

362

the express direction of a government employee who conceals, harbors, or shelters an

363

illegal alien when such illegal alien is or has been the victim of a criminal offense or is a

364

witness in any civil or criminal proceeding or who holds an illegal alien in a jail, prison,

365

or other detention facility.

366

16-11-202.

367

(a) As used in this Code section, the term 'illegal alien' means a person who is verified by

368

the federal government to be present in the United States in violation of federal

369

immigration law.

370

(b) A person who is acting in violation of another criminal offense and who knowingly

371

induces, entices, or assists an illegal alien to enter into this state, when such person knows

372

that the person being induced, enticed, or assisted to enter into this state is an illegal alien,

373

shall be guilty of the offense of inducing an illegal alien to enter into this state.

374

(c) Except as provided in subsection (d) of this Code section, for a first offense, a person

375

convicted of inducing an illegal alien to enter into this state shall be guilty of a

376

misdemeanor and, upon conviction thereof, shall be punished by imprisonment not to

377

exceed 12 months, a fine not to exceed $1,000.00, or both. For a second or subsequent

378

conviction of inducing an illegal alien to enter into this state, a person shall be guilty of a

379

felony and, upon conviction thereof, shall be punished by imprisonment of not less than

380

one or more than five years, a fine of not less than $5,000.00 or more than $20,000.00, or

381

both.

382

(d) A person who commits the offense of inducing an illegal alien to enter into this state

383

who does so with the intent of making a profit or receiving any thing of value shall be

384

guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not
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less than one or more than five years, a fine of not less than $5,000.00 or more than

386

$20,000.00, or both.

387

16-11-203.

388

The testimony of any officer, employee, or agent of the federal government having

389

confirmed that a person is an illegal alien shall be admissible to prove that the federal

390

government has verified such person to be present in the United States in violation of

391

federal immigration law. Verification that a person is present in the United States in

392

violation of federal immigration law may also be established by any document authorized

393

by law to be recorded or filed and in fact recorded or filed in a public office where items

394

of this nature are kept."

395

SECTION 8.

396 Chapter 5 of Title 17 of the Official Code of Georgia Annotated, relating to searches and
397 seizures, is amended by adding a new article to read as follows:
"ARTICLE 5

398

399

17-5-100.

400

(a) As used in this Code section, the term:

401

(1) 'Criminal violation' means a violation of state or federal criminal law but shall not

402

include a violation of a county or municipal law, regulation, or ordinance.

403

(2) 'Illegal alien' means a person who is verified by the federal government to be present

404

in the United States in violation of federal immigration law.

405

(b) Except as provided in subsection (f) of this Code section, during any investigation of

406

a criminal suspect by a peace officer, when such officer has probable cause to believe that

407

a suspect has committed a criminal violation, the officer shall be authorized to seek to

408

verify such suspect's immigration status when the suspect is unable to provide one of the

409

following:

410

(1) A secure and verifiable document as defined in Code Section 50-36-2;

411

(2) A valid Georgia driver's license;

412

(3) A valid Georgia identification card issued by the Department of Driver Services;

413

(4) If the entity requires proof of legal presence in the United States before issuance, any

414

valid driver's license from a state or district of the United States or any valid

415

identification document issued by the United States federal government;

416

(5) A document used in compliance with paragraph (2) of subsection (a) of Code Section

417

40-5-21; or
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(6) Other information as to the suspect's identity that is sufficient to allow the peace

419

officer to independently identify the suspect.

420

(c) When attempting to determine the immigration status of a suspect pursuant to

421

subsection (b) of this Code section, a peace officer shall be authorized to use any

422

reasonable means available to determine the immigration status of the suspect, including:

423

(1) Use of any authorized federal identification data base;

424

(2) Identification methods authorized by federal law, including those authorized by 8

425

USCA 1373(c), 8 USCA 1644;

426

(3) Use of electronic fingerprint readers or similar devices; or

427

(4) Contacting an appropriate federal agency.

428

(d) A peace officer shall not consider race, color, or national origin in implementing the

429

requirements of this Code section except to the extent permitted by the Constitutions of

430

Georgia and of the United States.

431

(e) If during the course of the investigation into such suspect's identity, a peace officer

432

receives verification that such suspect is an illegal alien, then such peace officer may take

433

any action authorized by state and federal law, including, but not limited to, detaining such

434

suspected illegal alien, securely transporting such suspect to any authorized federal or state

435

detention facility, or notifying the United States Department of Homeland Security or

436

successor agency. Nothing in this Code section shall be construed to hinder or prevent a

437

peace officer or law enforcement agency from arresting or detaining any criminal suspect

438

on other criminal charges.

439

(f) No person who in good faith contacts or has contact with a state or local peace officer

440

or prosecuting attorney or member of the staff of a prosecuting attorney for the purpose of

441

acting as a witness to a crime, to report criminal activity, or to seek assistance as a victim

442

to a crime shall have his or her immigration status investigated based on such contact or

443

based on information arising from such contact.

444

(g) A peace officer, prosecuting attorney, or government official or employee, acting in

445

good faith to carry out any provision of this Code section, shall have immunity from

446

damages or liability from such actions."

447

SECTION 9.

448 Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and
449 agencies, is amended by adding a new Code section to read as follows:
450

"35-1-16.

451

(a) It is the intent of the General Assembly to encourage Georgia law enforcement officials

452

to work in conjunction with federal immigration authorities and to utilize all resources

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made available by the federal government to assist state and local law enforcement officers

454

in the enforcement of the immigration laws of this state and of the United States.

455

(b) Cooperation with federal authorities.

456

(1) To the extent authorized by federal law, state and local government employees,

457

including law enforcement officers and prosecuting attorneys, shall be authorized to send,

458

receive, and maintain information relating to the immigration status of any individual as

459

reasonably needed for public safety purposes. Except as provided by federal law, such

460

employees shall not be prohibited from receiving or maintaining information relating to

461

the immigration status of any individual or sending or exchanging such information with

462

other federal, state, or local governmental entities or employees for official public safety

463

purposes.

464

(2)

465

understandings and agreements with the United States Department of Justice, the

466

Department of Homeland Security, or any other federal agency for the purpose of

467

enforcing federal immigration and customs laws and the detention, removal, and

468

investigation of illegal aliens and the immigration status of any person in this state. A

469

peace officer acting within the scope of his or her authority under any such memorandum

470

of understanding, agreement, or other authorization from the federal government shall

471

have the power to arrest, with probable cause, any person suspected of being an illegal

472

alien.

473

(3) Except as provided by federal law, no state or local agency or department shall be

474

prohibited from utilizing available federal resources, including data bases, equipment,

475

grant funds, training, or participation in incentive programs for any public safety purpose

476

related to the enforcement of state and federal immigration laws.

477

(4) When reasonably possible, applicable state agencies shall consider incentive

478

programs and grant funding for the purpose of assisting and encouraging state and local

479

agencies and departments to enter into agreements with federal entities and to utilize

480

federal resources consistent with the provisions of this Code section.

State and local agencies shall be authorized to enter into memorandum of

481

(c) Authority to transport illegal aliens. If a state or local law enforcement officer has

482

verification that a person is an illegal alien, then such officer shall be authorized to securely

483

transport such illegal alien to a federal facility in this state or to any other temporary point

484

of detention and to reasonably detain such illegal alien when authorized by federal law.

485

Nothing in this Code section shall be construed to hinder or prevent a peace officer or law

486

enforcement agency from arresting or detaining any criminal suspect on other criminal

487

charges.

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(d) Authority to arrest illegal aliens. When authorized by federal law, a state or local

489

law enforcement officer shall be authorized to arrest any person based on such person's

490

status as an illegal alien or for a violation of any federal immigration law.

491

(e) Immunity. A law enforcement officer or government official or employee, acting in

492

good faith to enforce immigration laws pursuant to an agreement with federal authorities

493

to collect or share immigration status information, or to carry out any provision of this

494

Code section, shall have immunity from damages or liability from such actions."

495

SECTION 10.

496 Said title is further amended in Code Section 35-2-14, relating to defining peace officer and
497 the enforcement of immigration and custom laws, by revising subsection (d) as follows:
498

"(d) The commissioner shall annually designate appropriate no fewer than ten peace

499

officers to apply to be trained pursuant to the memorandum of understanding provided for

500

in subsections (b) and (c) of this Code section. Such training shall be funded pursuant to

501

the any federal Homeland Security Appropriation Act of 2006, Public Law 109-90, or any

502

subsequent source of federal funding. The provisions of this subsection shall become

503

effective upon such funding."

504

SECTION 11.

505 Said title is further amended by adding a new Code section to read as follows:
506

"35-6A-10.

507

(a) Subject to available funding, the council shall establish a grant or incentive program

508

for the provision of funds to local law enforcement agencies as incentive to such agencies

509

to use the federal Department of Homeland Security's Secure Communities initiative or any

510

successor or similar program and shall establish an incentive program and a grant program

511

to offset the costs for local law enforcement agencies to enter into and implement

512

memorandums of agreement with federal agencies under Section 287(g) of the federal

513

Immigration and Nationality Act. In awarding such grants or incentives, the council shall

514

be authorized to consider and give priority to local areas with the highest crime rates for

515

crimes committed by illegal aliens.

516

(b) The council shall:

517

(1) Subject to available funding, provide incentive programs and grants to local law

518

enforcement agencies for utilizing federal resources and for entering into agreements with

519

federal agencies for the enforcement of immigration law;

520

(2) Provide technical assistance to local governments and agencies for obtaining and

521

qualifying for incentive programs and grant funds to utilize available federal resources

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and to enter into and implement such agreements provided for in subsection (a) of this

523

Code section;

524

(3) Communicate information regarding the availability of federal resources and

525

agreements provided for in subsection (a) of this Code section and the availability of

526

related incentive programs and grant funds and post such information on the agency's

527

official Internet website;

528

(4) Provide technical assistance and information regarding the process for contacting

529

federal agencies, utilizing federal resources, and entering into agreements provided for

530

in subsection (a) of this Code section and post such information on the agency's official

531

Internet website; and

532

(5) Support state-wide campaigns and information programs in an effort to encourage

533

every local law enforcement agency in this state to utilize federal resources and enter into

534

agreements for the enforcement of state and federal immigration law."

535

SECTION 12.

536 Chapter 60 of Title 36 of the Official Code of Georgia Annotated, relating to general
537 provisions applicable to local governments, is amended by revising Code Section 36-60-6,
538 relating to issuance of local business licenses and evidence of state licensure, as follows:
539

"36-60-6.

540

(a) Every private employer with more than ten employees shall register with and utilize

541

the federal work authorization program, as defined by Code Section 13-10-90. The

542

requirements of this subsection shall be effective on January 1, 2012, as to employers with

543

500 or more employees, on July 1, 2012, as to employers with 100 or more employees but

544

fewer than 500 employees, and on July 1, 2013, as to employers with more than ten

545

employees but fewer than 100 employees.

546

(b) For purposes of this Code section, the term 'employee' shall have the same meaning as

547

set forth in subparagraph (A) of paragraph (1.1) of Code Section 48-13-5, provided that

548

such person is also employed to work not less than 35 hours per week.

549

(a)(c) Before any county or municipal corporation issues a business license, occupational

550

tax certificate, or other document required to operate a business to any person engaged in

551

a profession or business required to be licensed by the state under Title 43, the person must

552

shall provide evidence of such licensure to the appropriate agency of the county or

553

municipal corporation that issues business licenses. No business license, occupational tax

554

certificate, or other document required to operate a business shall be issued to any person

555

subject to licensure under Title 43 without evidence of such licensure being presented.

556

(d) Before any county or municipal corporation issues or renews a business license,

557

occupational tax certificate, or other document required to operate a business to any person,
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the person shall provide evidence that he or she is authorized to use the federal work

559

authorization program or evidence that the provisions of this Code section do not apply.

560

Evidence of such use shall be in the form of an affidavit as provided by the Attorney

561

General in subsection (f) of this Code section attesting that he or she utilizes the federal

562

work authorization program in accordance with federal regulations or that he or she

563

employs fewer than 11 employees or otherwise does not fall within the requirements of this

564

Code section. Whether an employer is exempt from using the federal work authorization

565

program as required by this Code section shall be determined by the number of employees

566

employed by such employer on January 1 of the year during which the affidavit is

567

submitted. The affidavit shall include the employer’s federally assigned employment

568

eligibility verification system user number and the date of authority for use. The

569

requirements of this subsection shall be effective on January 1, 2012, as to employers with

570

500 or more employees, on July 1, 2012, as to employers with 100 or more employees but

571

fewer than 500 employees, and on July 1, 2013, as to employers with more than ten

572

employees but fewer than 100 employees.

573

(e) Beginning December 31, 2012, and annually thereafter, any county or municipal

574

corporation issuing or renewing a business license, occupational tax certificate, or other

575

document required to operate a business shall provide to the Department of Audits and

576

Accounts a report demonstrating that such county or municipality is acting in compliance

577

with the provisions of this Code section. This annual report shall identify each license or

578

certificate issued by the agency in the preceding 12 months and include the name of the

579

person and business issued a license or other document and his or her federally assigned

580

employment eligibility verification system user number as provided in the affidavit

581

submitted at the time of application. Subject to funding, the Department of Audits and

582

Accounts shall annually conduct an audit of no fewer than 20 percent of such reporting

583

agencies.

584

(f) In order to assist private businesses and counties and municipal corporations in

585

complying with the provisions of this Code section, the Attorney General shall provide a

586

standardized form affidavit which may be used as acceptable evidence demonstrating use

587

of the federal employment eligibility verification system or that the provisions of

588

subsection (b) of this Code section do not apply to the applicant. The form affidavit shall

589

be posted by the Attorney General on the Department of Law's official website no later

590

than January 1, 2012.

591

(g) Once an applicant for a business license, occupational tax certificate, or other

592

document required to operate a business has submitted an affidavit with a federally

593

assigned employment eligibility verification system user number, he or she shall not be

594

authorized to submit a renewal application using a new or different federally assigned
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employment eligibility verification system user number, unless accompanied by a sworn

596

document explaining the reason such applicant obtained a new or different federally

597

assigned employment eligibility verification system user number.

598

(b)(h) Any person presenting false or misleading evidence of such state licensure shall be

599

guilty of a misdemeanor. Any government official or employee knowingly acting in

600

violation of this Code section shall be guilty of a misdemeanor; provided, however, that

601

any person who knowingly submits a false or misleading affidavit pursuant to this Code

602

section shall be guilty of submitting a false document in violation of Code Section

603

16-10-20. It shall be a defense to a violation of this Code section that such person acted

604

in good faith and made a reasonable attempt to comply with the requirements of this Code

605

section.

606

(i) Documents required by this Code section may be submitted electronically, provided the

607

submission complies with Chapter 12 of Title 10.

608

(j) The Attorney General shall be authorized to conduct an investigation and bring any

609

criminal or civil action he or she deems necessary to ensure compliance with the provisions

610

of this Code section. The Attorney General shall provide an employer who is found to

611

have committed a good faith violation of this Code section 30 days to demonstrate to the

612

Attorney General that such employer has come into compliance with this Code section.

613

During the course of any investigation of violations of this Code section, the Attorney

614

General shall also investigate potential violations of Code Section 16-9-121.1 by

615

employees that may have led to violations of this Code section."

616

SECTION 13.

617 Title 42 of the Official Code of Georgia Annotated, relating to penal institutions, is amended
618 by revising Code Section 42-4-14, relating to determination of nationality of a person
619 charged with felony and confined in a jail facility, as follows:
620

"42-4-14.

621

(a) As used in this Code section, the term 'illegal alien' means a person who is verified by

622

the federal government to be present in the United States in violation of federal

623

immigration law.

624

(a)(b) When any person is confined, for any period, in the jail of a county or municipality

625

or a jail operated by a regional jail authority in compliance with Article 36 of the Vienna

626

Convention on Consular Relations, a reasonable effort shall be made to determine the

627

nationality of the person so confined.

628

(c)(b) If the prisoner is a foreign national charged with a felony, driving under the

629

influence pursuant to Code Section 40-6-391, driving without being licensed pursuant to

630

subsection (a) of Code Section 40-5-20, or with a misdemeanor of a high and aggravated
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nature, the keeper of the jail or other officer shall make When any foreign national is

632

confined, for any period, in a county or municipal jail, a reasonable effort shall be made

633

to verify that the prisoner such foreign national has been lawfully admitted to the United

634

States and if lawfully admitted, that such lawful status has not expired. If verification of

635

lawful status can not cannot be made from documents in the possession of the prisoner

636

foreign national, verification shall be made within 48 hours through a query to the Law

637

Enforcement Support Center (LESC) of the United States Department of Homeland

638

Security or other office or agency designated for that purpose by the United States

639

Department of Homeland Security by the federal government. If the prisoner foreign

640

national is determined not to be lawfully admitted to the United States to be an illegal alien,

641

the keeper of the jail or other officer shall notify the United States Department of

642

Homeland Security, or other office or agency designated for notification by the federal

643

government.

644

(c)(d) Nothing in this Code section shall be construed to deny a person bond or from being

645

released from confinement when such person is otherwise eligible for release; provided,

646

however, that upon verification that any person confined in a jail is an illegal alien, such

647

person may be detained, arrested, and transported as authorized by state and federal law.

648

(d)(e) The Georgia Sheriffs Association shall prepare and issue guidelines and procedures

649

used to comply with the provisions of this Code section."

650

SECTION 14.

651 Said title is further amended by revising subsection (c) of Code Section 42-5-51, relating to
652 reimbursement of counties for housing certain inmates, as follows:
653

"(c) After proper documentation is received from the clerk of the court, the department

654

shall have 15 days to transfer an inmate under sentence to the place of confinement. If the

655

inmate is not transferred within the 15 days, the department will shall reimburse the county,

656

in a sum not less than $7.50 per day per inmate and in such an amount as may be

657

appropriated for this purpose by the General Assembly, for the cost of the incarceration,

658

commencing 15 days after proper documentation is received by the department from the

659

clerk of the court; provided, however, that, subject to an appropriation of funds, local

660

governing authorities that have entered into memorandums of understanding or agreement

661

or that demonstrate continuous attempts to enter into memorandums of understanding or

662

agreement with the federal government under Section 287(g) of the federal Immigration

663

and Nationality Act shall receive an additional payment in the amount of 10 percent of the

664

established rate paid for reimbursement for the confinement of state inmates in local

665

confinement facilities. The reimbursement provisions of this Code section shall only apply

666

to payment for the incarceration of felony inmates available for transfer to the department,
H. B. 87
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667

except inmates under death sentence awaiting transfer after their initial trial, and shall not

668

apply to inmates who were incarcerated under the custody of the commissioner at the time

669

they were returned to the county jail for trial on additional charges or returned to the county

670

jail for any other purposes, including for the purpose of a new trial."

671

SECTION 15.

672 Title 45 of the Official Code of Georgia Annotated, relating to public officers and employees,
673 is amended by revising Code Section 45-10-28, relating to penalties for a violation of Part 1
674 of Article 2 of Chapter 10 of Title 45 and civil actions by the Attorney General to collect
675 penalties, as follows:
676

"45-10-28.

677

(a)(1) Any appointed public official or employee who violates Code Section 45-10-22,

678

45-10-23, 45-10-24, or 45-10-26 shall be subject to:

679

(A) Removal from office or employment;

680

(B) A civil fine not to exceed $10,000.00; and

681

(C) Restitution to the state of any pecuniary benefit received as a result of such

682

violation.

683

(2) Any elected public official who violates Code Section 45-10-22, 45-10-23, 45-10-24,

684

or 45-10-26 shall be subject to:

685

(A) A civil fine not to exceed $10,000.00; and

686

(B) Restitution to the state of any pecuniary benefit received as a result of such

687

violation.

688

(3) Any business which violates Code Section 45-10-22, 45-10-23, 45-10-24, or

689

45-10-26 shall be subject to:

690

(A) A civil fine not to exceed $10,000.00; and

691

(B) Restitution to the state of any pecuniary benefit received as a result of such

692

violation.

693

(b) The penalties provided for in subsection (a) of this Code section may be imposed in

694

any civil action brought for that purpose, and such actions shall be brought by the Attorney

695

General.

696

(c) As used in this subsection, the term 'agency head' shall have the same meaning as set

697

forth in Code Section 50-36-1. Any public official, agency head, or employee who violates

698

Code Section 13-10-91 or 50-36-1 shall be subject to:

699

(A) A civil fine not to exceed $10,000.00;

700

(B) Restitution to the state or local government, whichever is applicable, of any

701

pecuniary benefit received as a result of such violation; and

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(C) Where such violation is committed knowingly and intentionally, removal from

703

office or employment."

704

SECTION 16.

705 Chapter 36 of Title 50 of the Official Code of Georgia Annotated, relating to verification of
706 lawful presence within the United States, is amended by revising subsection (a) of Code
707 Section 50-36-1, relating to verification of lawful presence within the United States for
708 receipt of certain government benefits, by renumbering paragraphs (1) through (3) as
709 paragraphs (2) through (4), respectively, and by adding a new paragraph (1) to read as
710 follows:
711

"(1) 'Agency head' means a director, commissioner, chairperson, mayor, councilmember,

712

board member, sheriff, or other executive official, whether appointed or elected,

713

responsible for establishing policy for a public employer."

714

SECTION 17.

715 Said Code section of said chapter is further amended by revising subsection (e) as follows:
716

"(e) An agency or political subdivision providing or administering a public benefit shall

717

require every applicant for such benefit to:

718

(1) Provide at least one secure and verifiable document, as defined in Code Section

719

50-36-2;

720

(2) Execute execute a signed and sworn affidavit verifying the applicant's lawful

721

presence in the United States, which affidavit shall state:

722

(1)(A) The applicant is a United States citizen or legal permanent resident 18 years of

723

age or older; or

724

(2)(B)

725

Immigration and Nationality Act, Title 8 U.S.C., as amended, 18 years of age or older

726

lawfully present in the United States and provide the applicant's alien number issued

727

by the Department of Homeland Security or other federal immigration agency; and

728

(3) The state auditor shall create affidavits for use under this Code section and shall keep

729

a current version of such affidavits on the Department of Audits and Account's official

730

website.

731

(4) Documents required by this Code section may be submitted electronically, provided

732

the submission complies with Chapter 12 of Title 10."

733

The applicant is a qualified alien or nonimmigrant under the federal

SECTION 18.

734 Said Code section of said chapter is further amended by revising subsection (o) as follows:

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"(o) No employer, agency, or political subdivision shall be subject to lawsuit or liability

736

arising from any act to comply with the requirements of this chapter; provided, however,

737

that the intentional and knowing failure of any agency head to abide by the provisions of

738

this chapter shall:

739

(1) Be a violation of the code of ethics for government service established in Code

740

Section 45-10-1 and subject such agency head to the penalties provided for in Code

741

Section 45-10-28, including removal from office and a fine not to exceed $10,000.00; and

742

(2) Be a high and aggravated misdemeanor offense where such agency head acts to

743

willfully violate the provisions of this Code section or acts so as to intentionally and

744

deliberately interfere with the implementation of the requirements of this Code section.

745

The Attorney General shall have the authority to conduct a criminal and civil investigation

746

of an alleged violation of this chapter by an agency or agency head and to bring a

747

prosecution or civil action against an agency or agency head for all cases of violations

748

under this chapter. In the event that an order is entered against an employer, the state shall

749

be awarded attorney's fees and expenses of litigation incurred in bringing such an action

750

and investigating such violation."

751

SECTION 19.

752 Said chapter is further amended by adding a new Code section to read as follows:
753

"50-36-2.

754

(a) This Code section shall be known and may be cited as the 'Secure and Verifiable

755

Identity Document Act.'

756

(b) As used in this Code section, the term:

757

(1)

758

commission, or government entity of this state or any subdivision of this state.

759

(2) 'Public official' means an elected or appointed official or an employee or an agent of

760

an agency or political subdivision.

761

(3) 'Secure and verifiable document' means a document issued by a state or federal

762

jurisdiction or recognized by the United States government and that is verifiable by

763

federal or state law enforcement, intelligence, or homeland security agencies. Secure and

764

verifiable document shall not mean a Matricula Consular de Alta Seguridad, matricula

765

consular card, consular matriculation card, consular identification card, or similar

766

identification card issued by a foreign government regardless of the holder's immigration

767

status. Only those documents approved and posted by the Attorney General pursuant to

768

subsection (f) of this Code section shall be considered secure and verifiable documents.

769

(c) Unless required by federal law, on or after January 1, 2012, no agency or political

770

subdivision shall accept, rely upon, or utilize an identification document for any official

'Agency or political subdivision' means any department, agency, authority,

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771

purpose that requires the presentation of identification by such agency or political

772

subdivision or by federal or state law unless it is a secure and verifiable document.

773

(d) Any person acting in willful violation of this Code section by knowingly accepting

774

identification documents that are not secure and verifiable documents shall be guilty of a

775

misdemeanor and, upon conviction thereof, shall be punished by imprisonment not to

776

exceed 12 months, a fine not to exceed $1,000.00, or both.

777

(e) This Code section shall not apply to:

778

(1) A person reporting a crime;

779

(2) An agency official accepting a crime report, conducting a criminal investigation, or

780

assisting a foreign national to obtain a temporary protective order;

781

(3) A person providing services to infants, children, or victims of a crime;

782

(4) A person providing emergency medical service;

783

(5) A peace officer in the performance of the officer's official duties and within the scope

784

of his or her employment;

785

(6) Instances when a federal law mandates acceptance of a document;

786

(7) A court, court official, or traffic violation bureau for the purpose of enforcing a

787

citation, accusation, or indictment;

788

(8) Paragraph (2) of subsection (a) of Code Section 40-5-21 or paragraph (2) of

789

subsection (a) of Code Section 40-5-21.1; or

790

(9) An attorney or his or her employees for the purpose of representing a criminal

791

defendant.

792

(f) Not later than August 1, 2011, the Attorney General shall provide and make public on

793

the Department of Law's website a list of acceptable secure and verifiable documents. The

794

list shall be reviewed and updated annually by the Attorney General."

795

SECTION 20.

796 Said chapter is further amended by adding a new Code section to read as follows:
797

"50-36-3.

798

(a) As used in this Code section, the term:

799

(1) 'Board' means the Immigration Enforcement Review Board.

800

(2) 'Public agency or employee' means any government, department, commission,

801

committee, authority, board, or bureau of this state or any political subdivision of this

802

state and any employee or official, whether appointed, elected, or otherwise employed

803

by such a governmental entity.

804

(3) 'Served' or 'service' means delivery by certified mail or statutory overnight delivery,

805

return receipt requested.

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806

(b) The Immigration Enforcement Review Board is established and shall consist of seven

807

members. Three members shall be appointed by the Governor, two members shall be

808

appointed by the Lieutenant Governor, and two members shall be appointed by the Speaker

809

of the House of Representatives. A chairperson shall be selected by a majority vote of the

810

members. All matters before the board shall be determined by a majority vote of qualified

811

board members. Members shall be appointed for terms of two years and shall continue to

812

hold such position until their successors are duly appointed and qualified. A member may

813

be reappointed to an additional term. If a vacancy occurs in the membership of the board,

814

the appropriate appointing party shall appoint a successor for the remainder of the

815

unexpired term and until a successor is appointed and qualified.

816

(c) The board shall be attached to the Department of Audits and Accounting for

817

administrative purposes. The members of the board shall receive no compensation for their

818

services but shall be reimbursed for any expenses incurred in connection with the

819

investigation and review of complaints from funds of the board appropriated to the

820

Department of Audits and Accounting for such purposes.

821

(d) The Immigration Enforcement Review Board shall have the following duties:

822

(1) To conduct a review or investigation of any complaint properly filed with the board;

823

(2) To take such remedial action deemed appropriate in response to complaints filed with

824

the board, including holding hearings and considering evidence;

825

(3) To make and adopt rules and regulations consistent with the provisions of this Code

826

section; and

827

(4) To subpoena relevant documents and witnesses and to place witnesses under oath for

828

the provision of testimony in matters before the board.

829

(e) The board shall have the authority to investigate and review any complaint with respect

830

to all actions of a public agency or employee alleged to have violated or failed to properly

831

enforce the provisions of Code Section 13-10-91, 36-80-23, or 50-36-1 with which such

832

public agency or employee was required to comply. Complaints may be received from any

833

legal resident of this state as defined by Code Section 40-2-1 who is also a legally

834

registered voter. The method and grounds for filing a complaint shall be posted on the

835

Department of Audits and Accounting's website.

836

(f) The board shall meet at a minimum of once every three months and shall send a notice

837

to all interested parties of the places and times of its meetings. The board shall issue a

838

written report of its findings in all complaints which shall include such evaluations,

839

judgments, and recommendations as it deems appropriate.

840

(g) The initial review or hearing may, as determined by the board, be conducted by the full

841

board or by one or more board members. Such review panel or members shall make

842

findings and issue an initial decision. The initial decision shall be served upon the
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843

complaining party and the applicable public agency or employee that is the subject of a

844

complaint within 60 calendar days. If the findings are adverse to the public agency or

845

employee, or both, such party shall have 30 days to take the necessary remedial action, if

846

any, and show cause why sanctions should not be imposed.

847

(h) In the event that the remedial action does not occur to the satisfaction of the review

848

panel or members, the reviewing panel or members shall make a recommendation

849

specifying an appropriate sanction. Sanctions may include revocation of qualified local

850

government status, loss of state appropriated funds, and a monetary fine of not less than

851

$1,000.00 or more than $5,000.00. Sanctions shall only be imposed against an individual

852

employee or official where there is a finding supported by a preponderance of the evidence

853

that such individual knowingly and willfully violated or failed to abide by the provisions

854

of Code Section 13-10-91, 36-80-23, or 50-36-1.

855

(i) The initial decision or recommendation for sanctions, or both, shall be served upon the

856

complaining party and the applicable public agency or employee that is the subject of a

857

complaint. Where an initial decision is made by fewer than the entire board, the decision

858

may be appealed to the full board. Appeals shall be filed with the board not later than 30

859

days following the recommendation for sanctions, or 30 days following the initial decision,

860

if no adverse findings were made. Appeals may be made by the complainant or sanctioned

861

public agency or employee. The full board shall by majority vote affirm, overturn, or

862

modify the initial decision. The board may conduct a further hearing on the matter, or make

863

a final decision based on the record from any previously held hearing by the original

864

reviewing panel or members, or determine that no action is necessary based on the

865

information before the board. Where the initial decision or recommendation is made by

866

the full board, such decision shall be the final decision of the board following 30 days after

867

service on the public agency or employee, unless further action is taken by the board prior

868

to the expiration of the 30 day period.

869

(j) When a public agency or employee fails to take the specified remedial action, the

870

Attorney General shall be authorized to bring a civil mandamus action against such public

871

agency or employee to enforce compliance with applicable law and the sanctions

872

recommended by the board. Nothing contained in this Code section shall prohibit the

873

Attorney General from seeking any other remedy available by law."

874

SECTION 20.1.

875 WHEREAS, Georgia's agricultural industry is a vital pillar for this state's economy and
876 essential to the quality of life enjoyed by all Georgians; and

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877 WHEREAS, understanding the impact of immigration reform measures on Georgia's
878 important agricultural industry is a fundamental key to the implementation of immigration
879 reform in a manner that is in the best interests of this state; and

880 WHEREAS, the General Assembly recognizes that the federal guest worker program,
881 designated the H-2A visa program, for temporary and seasonal agriculture immigrant
882 workers is administratively cumbersome and flawed; and

883 WHEREAS, both Georgia and federal law fail to address many of the legal, economic, and
884 security aspects of immigration issues facing our state and especially our agricultural
885 industry; and

886 WHEREAS, these issues of great importance to the economy and of this state have not
887 before received extensive study by the Georgia General Assembly and merit such detailed
888 and specialized consideration at this time.

889 NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF
890 GEORGIA that the Department of Agriculture is directed to conduct a study of the
891 conditions, needs, issues, and problems mentioned above or related thereto and recommend
892 any actions or legislation that the department deems necessary or appropriate. The
893 Department of Agriculture shall consider the current and future impact of immigration on the
894 state agricultural industry. The department shall work in conjunction with and collect expert
895 testimony and information from the United States Department of Agriculture, the Department
896 of Justice, and other state governments. The department shall specifically address the need
897 for reform of the federal H-2A program and provide recommendations for such federal
898 reform. In addition, the department shall recommend changes needed in Georgia to provide
899 for improvements in the H-2A process, identify where such action may be taken by the state,
900 and provide a report evaluating the legal and economic feasibility of implementing a state
901 guest worker program. The department may conduct such meetings at such places and at
902 such times as it may deem necessary or convenient to enable it to exercise fully and
903 effectively its powers, perform its duties, and accomplish the objectives and purposes of this
904 resolution. The Department of Agriculture shall make a final written report to the Governor,
905 the President of the Senate, and the Speaker of the House of Representatives not later than
906 January 1, 2012. Provided that the provisions of this Act have been complied with, the
907 department shall not have any further obligation to continue such study on or after January
908 1, 2012.

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909

HB 87/AP
SECTION 21.

910 (a) If any provision or part of any provision of this Act or the application of the same is held
911 invalid or unconstitutional, the invalidity shall not affect the other provisions or applications
912 of this Act or any other part of this Act than can be given effect without the invalid provision
913 or application, and to this end, the provisions of this Act are severable.
914 (b) The terms of this Act regarding immigration shall be construed to have the meanings
915 consistent with such terms under federal immigration law.
916 (c) The provisions of this Act shall be implemented in a manner consistent with federal laws
917 governing immigration and civil rights.

918

SECTION 22.

919 Section 17 of this Act shall become effective on January 1, 2012. The remaining sections
920 of this Act shall become effective on July 1, 2011. Except as otherwise expressly provided,
921 the sections of this Act shall apply to offenses and violations occurring on or after their
922 respective effective dates.

923

SECTION 23.

924 All laws and parts of laws in conflict with this Act are repealed.

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