Arizona Firms Brace for Immigration Sanctions Law

Reuters ^ | Sunday, December 30, 2007 | Reuters

[VU4G10]

PHOENIX -- Arizona steel fabricator Sheridan Bailey has been laying off employees in recent weeks even though he has plenty of orders on the books.

His firm, Ironco Enterprises, shed around 10 percent of its 100-strong workforce to get in line with a state law going into effect on Tuesday that targets employers who hire illegal immigrants.

"We have let some people go who we came to know were not properly documented. So in that respect the law is already doing what the framers expected," he said.

The maker of steel frames for buildings is among an estimated 150,000 businesses across the desert state preparing for the measure that places Arizona at the vanguard of more than 100 U.S. states and municipalities taking on immigration enforcement.

The law, passed days after a federal immigration overhaul died in the U.S. Senate in June, punishes first-time violators who knowingly hire undocumented workers with a 10-day suspension of their business licenses.

A second offense means they lose it.

The measure also requires employers to use an online federal database, dubbed "E-Verify," to check the employment eligibility of new hires in the border state, which is home to an estimated 500,000 illegal immigrants.

Many employers like Bailey say they are pruning their workforce of illegal immigrants to avoid prosecution, or have outsourced some operations to neighboring states and even over the border to Mexico.

Other businesses have put a freeze on expansion in Arizona out of fear they will face prosecution should they inadvertently hire an illegal immigrant.

"It is too much of a risk for us," said Jason LeVecke, a franchise owner who operates a chain of 57 Carl's Jr. hamburger restaurants in the state.

He plans to expand in Texas.

BUSINESS 'DEATH PENALTY'

Immigration is the subject of a rancorous debate in the United States, where an estimated 12 million illegal immigrants live and work in the shadows.

The topic comes up frequently among Republican and Democratic hopefuls fighting to be their party's candidate in the November 2008 presidential election.

The politicians must tread a fine line between appeasing anti-immigration sentiment and trying not to anger Hispanics, who make up the fastest-growing voter bloc in the nation.

Many Arizonans support the new law. They say it takes away the lure of jobs for illegal immigrants and clamps down on employers unfairly profiting from cheap migrant labor.

"The only people who should be nervous are employers who hire illegals at cheap rates to gain unfair advantage over their competitors. They should be worrying a lot," said John Kavanagh, a Republican state lawmaker who co-sponsored the bill.

Gov. Janet Napolitano, a Democrat, signed the measure into law despite voicing concern that it was a business "death penalty."

A coalition of business groups filed suit to block the measure, arguing that it will be harmful to local businesses. A U.S. District Court threw out the challenge earlier this month, but a new suit has since been filed.

Lawyers opposed to the employer sanctions law say that it is unconstitutional and is open to abuse by people making malicious anonymous complaints. They warn that it will also make Arizona less competitive nationally.

"(Already) we have had businesses shut down, businesses that will not go ahead with acquisitions. It is going to get worse before it gets better," said Julie Pace, one of the lawyers bringing the employers' suit.

"Arizona will get bypassed economically. We will be known as tough but stupid from an economic perspective," she said.

[Vigilanteman]

Here’s a hint to Arizona businesses: Recruit workers in Michigan. Those nimrods are pushing businesses out and unemployment up.

[Man50D]

It amazes me legislation is being passed to stem the flow of illegal immigration all the while we've had the following law on the books.

Federal Immigration and Nationality Act

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) Recruitment and Employment of Illegal Aliens Encouraging and Harboring Illegal Aliens Enforcement RICO —Citizen Recourse Tax Crimes Comment

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) "Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

· assists an illegal alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or · encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or · knowingly assists illegal aliens due to personal convictions. ·

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work.

It is unlawful to hire any individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. "Day laborers" or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the illegal alien labor.

The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.

An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.

Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.

It is illegal for nonprofit or religious organizations to knowingly assist an employer to violate employment sanctions, regardless of claims that their convictions require them to assist illegal aliens. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.

Encouraging and Harboring Illegal Aliens

It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any illegal alien who is in the United States in violation of law. Harboring means any conduct that tends to substantially facilitate an alien to remain in the U.S. illegally. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.

An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.

The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the illegal alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.

Enforcement

A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.

State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.

RICO —Citizen Recourse

Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, and can include nonprofit associations.

Tax Crimes

Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In addition to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.

Comment:

A comment and a published quote by Robert Gaffney, Attorney and County Executive of Suffolk County, LI, NY:

The statutory foundation of United States immigration law has always been the jurisdiction of the federal government, Congress and the federal courts. The preeminent laws concerning the employment of illegal aliens are found in the Immigration and Nationality Act (8 U.S.C. §~ 1101-1503), as amended by the Immigration Reform and Control Act of 1986 CIRCA).

The law states it is a crime to assist an illegal alien who lacks employment authorization by referring him to an employer, or by acting as his or her employer, or as an agent for an employer. 8 U.S.C.S. § 1324a(a)(1)(A) (Lexis 1997). Furthermore, it is unlawful to hire an individual for employment without complying with the employment eligibility requirements for every person hired. 8 U.S.C.S. § 1324a(a)(l)(B) (Lexis 1997). Moreover, conduct tending substantially to facilitate illegal aliens remaining in the United States illegally, where there is knowledge or a reckless disregard of an illegal alien s unlawful status, is a crime, with escalating penalties, encompassed within the provisions of 1324. 8 U.S.C.S. § 1324(a)(l)(A)(iii) (Lexis 1997); United States v. Kim. 193 F-3d 567 (2d Cir. 1999), are considered employees for purposes of immigration law.

[LS]

What I think you'll find is that very soon, employers will "self police" if they think everyone is playing by the same rules. Enforcement costs will drop. It's like speed limits in a school zone. There isn't a cop there all the time, or even most of the time. People obey the law, really, because they want to---because it's prudent---because everyone else does, and because other people will report egregious violators.

At first, enforcement will be expensive as you crack down on the first violators. But I do think businesses are no less "patriotic" than anyone else if they think everyone is equally "burdened" by hiring documented employees.

[Wolverine]

[crz]

That republican has it right. I have personally seen home builders here hire Mexicans cement workers here at 8.25 an hour when the standard rate is 18 to 22 bucks an hour. Hell, the whole construction crew is Mexican! Then they build the friggan homes for not more than 150-200 grand and then put it on the market for a wopping 4 to 500 grand!

I have personally seen it when a state agency car shows up and the whole crew scatters like rats! They jump the block fences and you could watch them running across the desert like rabbits. All the while the foreman is swearing they didnt hire illegals.

The crew foreman for the crew I was on went over and told the state guy the facts, at which time the state guy simply went back to his car and left and nothing happened.

And now I sit here unemployed because these slimey developers have defaulted on the construction loans because the loan time has run out and they would have to pay for the places out of their pockets. So the state jerks their lic..so what! These assholes simply go down, get another lic. and start right back up hiring more Mexicans.

This law ends that.

[wolfcreek]

“We have let some people go who we came to know were not properly documented.”

LOL! This almost too good to be true. We’ll see how all this plays out.

[Morgan in Denver]

The feds pass laws to feel good, without the backbone to enforce them. This is no different. Once states and cities start passing and enforcing these laws they become effective. Good government works best at the local level.

[Go Gordon]

It is going to get worse before it gets better," said Julie Pace,

So? A step or two backwards before taking 10 steps forward. Ms. Pace is an idiot.

[snippy_about_it]

It will be interesting to read the want ads and see just how many businesses (and what kind) will be looking for workers in the coming months.

Now if the entire country would enforce the laws...I’m dreamin’.

[VOA]

bump

[randog]

A coalition of business groups filed suit to block the measure, arguing that it will be harmful to local businesses.

Well, I guess we now know why republicans do absolutely nothing about illegal immigration.

[oldbill]

". . . should they inadvertently hire an illegal immigrant"

Yeah, right.

They know damn well they are hiring illegals. In Virginia, Verizon is the worst violator and biggest state user of illegal alien labor. But they will claim that they do not hire any illegals.

No, they hire subcontractors who use illegal exclusively. That gives them their "plausible deniability" and a legal out. But they know that all these subcontractors are using illegal aliens.

Unfortunately, these illegals are cheap but incompetent. They can't read maps or blueprints; they run wires and fiber optic cables across other people's property; they will expose the cables above ground if there is a tree root in the way; they will bring their girl friends with anchor babies to the work site and let them play around exposed powerlines; and if they get hurt they will have a La Raza or LULAC or ACLU lawyer sue YOU for big bucks.

They are not only doing the work Americans won't do, they are doing the work Americans CAN'T do because of the laws or zoning regulations. And John McCain, Mikey Huckabee, and Rudy Guliani and ALL the Democrats will make sure that Verizon and others continue to have cheap labor to continue doing it.

[glmjr]

MINUTE MEN of America

NRA of America

 We want to know.....what the hell are you waiting for?

Your endorsements could make the difference in the upcoming elections.  If you haven't noticed, you have the perfect candidate in the race.  The future of stopping illegal immigration and the individuals right to bear arms are at stake.  Failure to give your support to the right person could cost all freedom loving Americans dearly.  Your members want you to endorse a person that will stop illegal immigration and secure our rights to bear arms.  A true conservative is the only choice, no liberal republicans or democrats need apply.

Everyone needs to call NRA headquarters / Minute Men headquarters today and voice our opinions.  I have.

 

"When I am president, I will build a fence."

"My idea of gun control is a good, steady aim."

 

 

 

 

 

 

 

 

[definitelynotaliberal]

No sympathy from these quarters for Ms. Pace and the group she is representing, but the fact is that we don’t know how long it takes to take those 10 steps forward. It’s obvious to all of us that it is going to get bad in Arizona. What should happen is that Mexicans and other illegals move out of the state, freeing up schools and hospitals. There will be a net benefit, we know it. Vehicular crime rates will drop rapidly. So, would it be reasonable to expect a positive change in the state budget for 2008? Or 2009? How long will it take? I fear that it won’t make such a difference until things get tougher in all surrounding states for starters and then in all the states. My hope is that other states, observing the (positive) change in Arizona implement similar laws.

And no ill wishes to the Virginians, but I hope that that state gets flooded will illegals. Didn’t some nitwit mayor say that he welcomes them? Good, you can have all 12 million of them.

Happy New Year,
A LEGAL immigrant

[gubamyster]

ping

[Niteflyr]

We have let some people go who we came to know were not properly documented

I love how this is always sugarcoated....fact is they are illegal aliens and not "not properly documented"....

[Niteflyr]

The crew foreman for the crew I was on went over and told the state guy the facts, at which time the state guy simply went back to his car and left and nothing happened.

All it would take is a little enforcement....and you would see massive results...attrition through enforcement ....contrary to what the "can't deport 12 million illegal aliens" crowd is saying....

[Niteflyr]

What should happen is that Mexicans and other illegals move out of the state, freeing up schools and hospitals.

And if Arizona continues down this path I might take my money and retire there...

Signed: Fed-up Mexifornian

[rottndog]

"We have let some people go who we came to know were not properly documented. So in that respect the law is already doing what the framers expected," he said.

Like they didn't know already, when they were hired...