ANALYSIS OF CHANGES THAT WEAKEN ALABAMA’S IMMIGRATION LAW
By Elois Zeanah, President
Alabama Federation of Republican Women
April 10, 2012
Changes weaken our current law and practically nullify its intent to reduce illegal immigration through attrition.
This makes a mockery of the law!
Changes that Weaken our Current Immigration Law in HB658
1. Contractors no longer have to require an affidavit from subcontractors that their workers are legal
(Section 31-13-9, page 22)
Concern: The primary problem with this change is that the indirect hiring of illegal aliens is through subcontractors. The current law corrected the problem of contractors claiming deniability by holding contractors accountable for ensuring that subcontractors use E-Verify by signing an affidavit. The requirement that subcontractors sign an affidavit attested by a notary, however, was burdensome. This doesn’t have to be burdensome for the contractor.
Solution: The solution could be as simple as (1) the contractor including an affidavit on the contract that subcontractors sign; this removes the time/expense of a notary; and (2) the state posting on a state website the names of all businesses which enroll in E-Verify. This would remove angst from the contractor and should be done in any event to aid enforcement of the law and to encourage compliance by contractors including subcontractors.
2. “The law would not apply to companies doing less than 50% of their business with the state.” (Rep. Kerry Rich)http://www.sandmountainreporter.com/news/state_news/article_5922ca4e-827e-11e1-86c5-001a4bcf887a.html)
3. Citizens can no longer sue state officials who have the responsibility for, but refuse to enforce the immigration law. Citizens must now petition a local District Attorney or the Attorney General, who are given free rein to dismiss petitions.
(Section 31-13-5, page 10)
Concern: The purpose of this provision in the current immigration law is to prevent Alabama from becoming a sanctuary state. The revision removes this safety valve. The revision to give DA/AG discretion to file a lawsuit based on a complaint can ensure that there will be in most cases no enforcement. To wit:
The overload of DA’s and Courts is so horrendous that even most murders don’t go to trial. It’s unrealistic to think that DA’s would take scarce resources and use hundreds of man-hours to investigate complaints against officials who ignore non-compliance.
A humorous case in point is the Attorney General, who is the top law enforcement officer in the state, asked that the responsibility for his office to enforce Alabama’s immigration law be removed since he’s too busy already.
To put the purpose of the current immigration law in context: The reason for authorizing citizens to sue is to avoid experiences of municipalities, churches, and officials in other states which refuse to comply with or enforce immigration laws. It’s imperative for citizens to have the ability to take civil action, if needed, to prevent Alabama from becoming a sanctuary state because officials won’t perform their legal duties.
Solution: Restore wording in current law.
4. Employers who fire workers to hire illegals now get virtual immunity since the bar of proof has been raised prohibitively high. (Section 31-13-17, pages 58-59)
Concerns: Revisions make it impossible for wronged citizen-workers to sue employers who fire and replace them with illegal-workers or discriminate against them in other ways in favor of illegal aliens.
While the current law is a clear, concise, single paragraph, stating that a citizen-employee can sue an employer for hiring/retaining an illegal alien and discriminating against him/her, revisions ADD more than a page, detailing what the citizen-employee must do to prevail; and REMOVES language that the losing party must pay court costs and reasonable attorney fees for the prevailing party.
Even if the citizen-employee wins in court, employers are not penalized for hiring illegal aliens and there’s no language that employers must terminate illegal workers. Nor do convicted employers have to pay a fine, face jail time, be put on probation, or lose licenses. Courts are prohibited from charging convicted employers of any civil or criminal crimes or be asked to pay sanctions. Recovery by employees is limited to compensatory relief (not spelled out). They do not get their jobs back and do not get attorney/court costs paid, though they won.
While provisions prohibit courts from placing civil or criminal penalties against convicted employers, a NEW provision makes it mandatory that a person who files a complaint against an employer shall be guilty of a Class C misdemeanor if it is considered false or frivolous.
Solution: Restore language in the current law.
5. Employers can avoid any penalty upon conviction of knowingly hiring illegal aliens if a court decides the project is in the “public interest” (Section 31-13-15, page 46)
Concern: Current law subjects employers who willfully break the law to revocation of their business license throughout the state for a 2nd violation for a specific location and revoked statewide after a third violation. This is lax. But under HB658, (1) employers’ licenses can be revoked only after a third violation if they occur within a five-year-period – but the business license can be re-instated. (2) All penalties can be avoided if a court decides hiring illegal aliens is okay because the project itself is in the “public interest”.
6. Public schools can no longer collect data on children of illegal aliens to help the state budget for their fiscal impact. (Section 31-13-27, page 66)
Concern: The current law directs schools to compile information to help identify fiscal impacts to the state of providing a free education to children of illegal aliens. We know that ESL classes costs the state over $200,000 every year. Shouldn’t the state/schools be aware of the full costs – especially when the state budget is in a crunch and the state has to cut some functions by at least 20%? How can the state otherwise budget for these escalating costs at a time when teachers are being let go, there’s no money to buy textbooks or classroom supplies, and the state board of education has forced schools to implement national Common Core standards, which will cost taxpayers an additional hundreds of millions of dollars. The information requested for children of illegal parents is nothing different than is currently required of all citizen parents. Laws should be equally applied to all. Repeal of this section is apparently an effort to be “politically correct”.
Solution: Restore the language in the current law.
7. Landlords can now knowingly rent to illegal aliens. (Section 31-13-13, page 41)
Concern: Changes repeal the section in the current law that makes it a crime for a landlord to knowingly rent to illegal aliens. Current law prohibits concealing, harboring, shielding, encouraging illegal aliens to come to/remain in Alabama. It classifies the willful renting to illegal aliens, while knowing they were in the state unlawfully, as harboring. Current law tracks federal law. Section 31-13-13, page 40 is of similar concern. This repeals the section that makes it a crime to encourage or induce an illegal alien to move to Alabama if that person knows or recklessly disregards the fact that coming to or residing in Alabama is against federal law.
Solution: Restore the language in the current law.
8. An additional concern is that added authority for the Department of Homeland Security is internally inconsistent. The added authority for Homeland Security to request proof of enrollment in E-Verify when a complaint is filed against an employer and to be able to inspect records of employers and check employees against E-Verify is laudable. However, this requires unnecessary time/resources and is internally inconsistent.
Section 13-13-15(b), page 46, mandates that ALL employers enroll in E-Verify. However, this revision does not penalize the employer for failure/refusal to enroll in E-Verify. This rewards unlawful employers, who have an economic advantage over employers who obey the law.
For this revision to be meaningful, the bill must penalize employers found to be in non-compliance with this immigration law. If there is no pain for violation immigration law, there is no deterrent factor for dishonest employers. This makes a mockery of the law.
Solution: Make the failure to enroll in E-Verify a misdemeanor, as Arizona does. This would make enforcement easier, faster, less expense, and more sure in many instances.
11. Police can no longer ask for documentation during a lawful stop, detention, or arrest if officers reasonably suspects the individual is illegally in the country UNLESS there is an arrest or traffic citation.
(Section 31-13-12, page 37)
Concern: Revisions significantly limit the scope of the current law’s immigration status check provision. Current law requires a law enforcement officer during a lawful stop, detention, or arrest to conduct an immigration status check of individuals if the officer reasonably suspects the individual to be in the U.S. illegally. Changes, however, limit the requirement to conduct immigration status checks to only situations where an individual is arrested or issued a traffic ticket.
Solution: Restore current language in HB56.
SUMMARY and RECOMMENDATIONS FOR STRENGTHENING HB658
By Elois Zeanah, President, Alabama Federation of Republican Women
April 10, 2012
Changes to our current immigration law are premature. The Legislature should wait until after the U.S. Supreme Court rules on the Arizona law, after which Alabama’s was modeled. The Supreme Court will hear oral arguments on Arizona’s SB 1070 on April 25. The Court is then expected to rule on SB 1070 in June.
Lawmakers are pushed forward with changes despite the fact that 75% of Alabama voters support the law. (See FAIR poll, March 19, 2012)
Changes that weaken Alabama’s current law include:
- Contractors no longer have to require an affidavit from subcontractors that their workers are legal.
- The law would not apply to companies doing less than 50% of their business with the state.
- Citizens can no longer sue state officials who are responsible for but refuse to enforce the law.
- Employers who fire workers to hire illegals now get virtual immunity since the bar of proof has been raised prohibitively high.
- Employers can avoid any penalty upon conviction of knowingly hiring illegal aliens if a court decides the project is in the public interest.
- Courts cannot fine, jail, put on probation or suspend licenses of employers convicted of hiring illegals, yet citizens shall be found guilty of a Class C misdemeanor if the complaint is considered false or frivolous.
- Courts can no longer require convicted employers to pay costs of former employees who filed and won.
- Public schools can no longer collect data on children of illegal aliens to help budget for their fiscal impact.
- Landlords can now knowingly rent to illegal aliens.
- It is no longer a crime to encourage or induce illegal aliens to move to/remain in Alabama.
- Police can no longer ask for documentation during a lawful stop, detention, or arrest unless an individual is arrested or issued a traffic ticket.
WAYS TO FIX THE BILL:
- Increase penalties on unlawful employers who commit tax fraud by hiring illegal aliens as a deterrent
- HB 658 gives employers an economic incentive to break the law. This should be corrected:
- Incorporate Section 30-29-110 of Alabama tax codes, which make it a felony for employers to commit tax fraud.
- Tax evasion under the law occurs when employers fail to (a) pay payroll taxes for employees hired “under the table”; (b) collect state taxes from employees, and (c) keep records and supply information regarding employees for tax purposes.
- Penalties under the above tax code for tax fraud conviction are not more than $100,000 or $500,000 for a corporation, or imprisonment of not more than three years, or both.
- Make the refusal of employers to enroll in E-Verify a misdemeanor, as Arizona does.
- The bill currently mandates that ALL employers SHALL enroll in E-Verify. However, there is no penalty for not doing so.
- No penalty and lax enforcement with the possibility of a “get out of jail free card”, even if convicted, makes a mockery of the law.
- Restore the requirement that contractors be held liable for hiring ONLY legal workers on their jobs. This can be accomplished by adding an affidavit to contracts with subcontractors.
- Require appropriate state website to list names of businesses which enroll in E-Verify. This will enable state enforcement officers and contractors to be a click away from enforcing Alabama’s immigration law, add certainty to enforcement by saving time and money in investigative and other enforcement costs, and save taxpayers and state budgets hundreds of millions of dollars every year in costs to subsidize unlawful employers who commit tax fraud.