BILL ANALYSIS Ó
AB 26
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Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 26 (Donnelly) - As Introduced: December 6, 2010
SUBJECT : IMMIGRATION: STATE POLICY AND ENFORCEMENT MECHANISMS
KEY ISSUE : Should California adopt a series of measures TO
REGULATE IMMIGRATION copied from controversial legislation in
arizona that has been found to be of questionable constitutional
validity as the result of multiple and costly challenges by
business groups, the United states department of justice and
civil rights organizations?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This is an author-sponsored measure that copies controversial
legislation from Arizona seeking to regulate U.S. immigration.
The bill's policy of "attrition by enforcement" is intended to
reduce the number of unauthorized immigrants in California. It
would enact a sweeping set of new regulations, duties,
prohibitions, criminal sanctions, fines and penalties affecting
every employer, local government, district attorney, the
Attorney General, and other state agencies. This analysis
focuses only on the civil matters within the Committee's
jurisdiction. Should the bill advance, it will be referred to
the Public Safety Committee for consideration of its penal law
provisions. Supporters contend that the federal government has
failed to properly enforce immigration laws that prohibit people
from entering the country illegally. Supporters further allege
that undocumented immigrants illegally use valuable resources
that are meant for hard-working citizens, legal residents, and
taxpayers. The bill is opposed by business and employer
advocates, civil rights organizations, law enforcement and other
groups who contend that it is unnecessary, unconstitutional and
unwise. The Arizona legislation on which this bill is based has
been challenged by the United States and a broad array of
business associations and civil rights organizations. Part of
the Arizona law has been enjoined; another part is currently
before the U.S. Supreme Court in a lawsuit brought by the
Chamber of Commerce.
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SUMMARY : Seeks to regulate immigration and the employment of
immigrants. Specifically, this bill :
1)Declares that the intent of this act is to make attrition
through enforcement the public policy of all state and local
government agencies in California, and further declares that
the provisions of this act are intended to work together to
discourage and deter the unlawful entry and presence of aliens
and economic activity by persons unlawfully present in the
United States.
2)Prohibits public officials and agencies from adopting a policy
that limits or restricts the enforcement of federal
immigration laws or that restricts the sharing of a person's
immigration status, as specified.
3)Allows any person to bring an action in superior court to
challenge any official or agency of the state or of a city,
county, city and county, or other political subdivision that
adopts or implements a policy that limits or restricts the
enforcement of federal immigration laws to less than the full
extent permitted by federal law.
4)Provides that a prevailing plaintiff shall recover court costs
and attorney's fees.
5)Requires that the public entity pay a civil penalty of not
less than one thousand dollars ($1,000) and not more than five
thousand dollars ($5,000) for each day that the policy has
remained in effect after the filing of an action.
6)Requires that a law enforcement officer shall be indemnified
by the law enforcement officer's agency against reasonable
costs and expenses, including attorney's fees, incurred by the
officer in connection with any action, suit, or proceeding to
which the officer may be a party by reason of the officer
being or having been a member of the law enforcement agency,
except in relation to matters in which the officer is adjudged
to have acted in bad faith.
7)Prohibits an employer from either knowingly or intentionally
employing an unauthorized alien, as specified.
8)Requires the Attorney General to prescribe a complaint form by
which any person wishing to do so may allege a violation of
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the prohibition against employing unauthorized aliens, which
may be submitted by a complainant anonymously.
9)Establishes a process for persons to file complaints of
violations of these provisions with the Attorney General or a
district attorney, and makes it a misdemeanor to make a false
and frivolous complaint alleging a violation of these
provisions by an employer.
10)Requires the investigation of complaints by the Attorney
General or relevant district attorney, and requires that if
the Attorney General or district attorney determines that the
complaint is not "false and frivolous," the Attorney General
or district attorney shall do both of the following: (A)
Notify the United States Immigration and Customs Enforcement
of the unauthorized alien; and (B) Notify the local law
enforcement agency of the unauthorized alien.
11)Requires the Attorney General to notify the appropriate
district attorney to bring an action against the employer if
the complaint is not found to be "false and frivolous" and
specifies penalties and other consequences, including the
suspension of certain licenses, for employers that violate
these provisions.
12)Requires every employer to verify the employment eligibility
of employees through the federal E-Verify program and require
employers to participate in the federal E-Verify program in
order to be eligible for economic development incentives, as
specified.
13)Establishes a variety of new crimes and penalties regarding
presence, smuggling, hiring persons for work, solicitation or
performance of work, operation of motor vehicles,
transportation of aliens, concealment or harboring of an alien
from detection, inducement of an alien to come to or reside in
this state if the person knows or recklessly disregards the
fact, that the alien would be entering or residing in this
state unlawfully.
14)Would establish the Gang and Immigration Intelligence Team
Enforcement Mission Fund to be funded as specified, and
administered by the Department of Justice to be used, upon
appropriation, for gang and immigration enforcement and for
county jail reimbursements relating to illegal immigration.
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EXISTING LAW :
1)Provides for the regulation of immigration exclusively by the
federal government. (E.g., LULAC v. Wilson, 908 F. Supp. 755,
786-87 (C.D. Cal. 1995).)
2)Prohibits any employer from employing any person whose
immigration status makes them ineligible for work and imposes
fines ranging from $250 to $10,000 for each undocumented
worker, and criminal penalties for habitual violators ranging
from a $3,000 fine to six months in prison. Criminal
penalties can be assessed on employers who demonstrate "a
pattern or practice" of violations, and the Attorney General
may seek permanent or temporary injunctive relief against
repeat offenders. (8 U.S.C. section 274A.)
3)Expressly preempts any state or local law imposing civil or
criminal sanctions upon those who employ, or recruit or refer
for a fee for employment, unauthorized aliens. (8 U.S.C.
section 1324a.)
4)Generally regulates employment, including, but not limited to,
the wages, hours, and working conditions of employees. (Labor
Code section 1 et seq.)
COMMENTS : The author has provided the Committee with the
following statement regarding the need for this bill, which is
reproduced here in its entirety:
AB 26 would prohibit public officials or agencies from
adopting policies that limit enforcement of Federal
immigration laws. This bill would also restrict employers
and businesses from knowingly employing unauthorized aliens
and require them to verify employment eligibility through
the Federal e-verify program. AB 26 would end sanctuary
cities by enabling citizens to sue the government if a city
operates as a sanctuary for illegal aliens. This bill would
establish a process in which people can file complaints of
employment violation with the Attorney general or a
District Attorney, but would provide for investigation of
these complaints and make it a misdemeanor to file a false
complaint. This bill would make it a felony to
intentionally smuggle people for the profit of commercial
purposes and would make it a felony, punishable by life in
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prison, to smuggle a minor into or through the State of
California for the purposes of sexual slavery. AB 26 would
establish the Gang and Immigration Intelligence Team
Enforcement Mission Fund for the purposes of gang and
immigration enforcement and for county jail reimbursements
relating to illegal immigration. This bill would also
increase criminal penalties, one being for criminals who
traffic minors across the border for the purposes of sexual
slavery.
As to the nature of the alleged problem, and how the bill would
address it, the author's "fact sheet" adds:
Federal immigration laws prohibit people from entering the
country illegally. Immigrants that come into California
illegally use valuable resources that are meant for
hard-working citizens, legal residents, and taxpayers.
While California is facing a budget deficit of more than
$26 billion, the cost of services being rendered to illegal
immigrants in California have been estimated to be over $10
billion. The Federal government is not taking their
responsibility to deal with this issue in a timely manner
seriously and the cost of their apathy is landing on the
back of hardworking and law abiding taxpayers and
businesses.
Stated Purpose of The Bill. The bill declares that "the intent
of this act is to make attrition through enforcement the public
policy of all state and local government agencies in
California." It "further declares that the provisions of this
act are intended to work together to discourage and deter the
unlawful entry and presence of aliens and economic activity by
persons unlawfully present in the United States."
According to the Center for Immigration Studies, which advocates
for stricter controls on immigrants, "The purpose of attrition
through enforcement is to increase the probability that illegal
aliens will return home without the intervention of immigration
enforcement agencies. In other words, it encourages voluntary
compliance with immigration laws through more robust interior
law enforcement."
(http://www.cis.org/articles/2006/back406.html). "Elements of
the attrition through enforcement strategy include: mandatory
workplace verification of immigration status; measures to curb
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misuse of Social Security and IRS identification numbers;
partnerships with state and local law enforcement officials;
expanded entry-exit recording under US-VISIT; increased
non-criminal removals; and state and local laws to discourage
illegal settlement." (Id.)
The "attrition through enforcement" policy is said to "Shrink
the illegal population through consistent, across-the-board
enforcement of the immigration law. By deterring the settlement
of new illegals, by increasing deportations to the extent
possible, and, most importantly, by increasing the number of
illegals already here who give up and deport themselves, the
United States can bring about an annual decrease in the
illegal-alien population, rather than allowing it to continually
increase. The point, in other words, is not merely to curtail
illegal immigration, but rather to bring about a steady
reduction in the total number of illegal immigrants who are
living in the United States. The result would be a shrinking of
the illegal population to a manageable nuisance, rather than
today's looming crisis."
(http://www.cis.org/ReducingIllegalImmigration-Attrition-Enforcem
ent.)
As discussed below, this provision has a corollary in a recent
Arizona measure that has been blocked by the courts in United
States v. Arizona, a legal challenge brought by the Department
of Justice. The DOJ alleges that Arizona's focus on "attrition"
disrupts federal enforcement priorities and resources that focus
on aliens who pose a threat to national security or public
safety. According to the United States, a mandatory enforcement
scheme would undermine the federal government's careful balance
of priorities and enforcements, diverting resources from
dangerous aliens and potentially harassing of authorized
visitors, immigrants, and citizens.
Related Legislation In Other States. This bill appears to be
part of a multi-state effort following the enactment of highly
controversial similar measures in Arizona. According to the
author, similar legislation has been proposed (but not enacted)
in the following states: Kentucky, South Carolina, Texas, South
Dakota, Georgia, Maine, Utah, Florida, Missouri, North Carolina,
Minnesota, Mississippi, Colorado, Maryland, Nebraska, Indiana,
Oregon, and Virginia.
Utah last month took a different approach by adopting a package
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of bills dealing with enforcement but also providing state work
permits and a path to legal residence to undocumented immigrants
and their families. (See G. Lopez, "Business Beats Bigotry,"
Los Angeles Times (March 28, 2011).)
Media reports indicate that the initial flurry of legislation
has not generated widespread support.
"A year ago, a revolution on immigration enforcement seemed
underway, with legislators in at least 20 states vowing to
follow the lead of Arizona's tough new law targeting illegal
immigrants. These days, the momentum has shifted. In at least
six states, the proposals have been voted down or have simply
died. Many of the other proposals have not even made it past one
legislative chamber. ?. The main factor behind the retreat is
skittishness about costs, said Ann Morse, who tracks immigration
legislation for the National Conference of State Legislatures."
("On immigration, momentum shifts away from Arizona," Los
Angeles Times (March 6, 2011).)
According to one report, "Proposed legislation in Alabama,
Georgia and South Carolina, where Republicans control the
legislatures and the governors' mansions, have moved further
than similar proposals in many other states, where concerns
about the legality and financial impact of aggressive
immigration legislation have stopped lawmakers." ("Southern
Lawmakers Focus on Illegal Immigrants," New York Times, March
25, 2011.)
The New York Times recently commented:
In dozens of states considering such crackdowns - including
Nebraska, Indiana, Oklahoma, Georgia, Kentucky,
Mississippi, South Carolina and Texas - elected officials,
law enforcers, business owners, religious leaders and
regular citizens are providing the calm voices and cool
judgment that are lacking in the shimmering heat of
Phoenix.
They are reminding their representatives that replacing
federal immigration policy with a crazy quilt of state-led
enforcement schemes is only a recipe for more lawlessness
and social disruption, for expensive lawsuits and busted
budgets, lost jobs and boycotts. And all without fixing
the problem.
This isn't just an immigrants' cause. Business owners in
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places like Kansas and Texas, the attorney general in
Indiana, Catholic and Protestant bishops in Mississippi -
these and hundreds of other community leaders have been
sending a contrary message.
The businesses say bills to force employers to check
workers' legal status are redundant, costly and
anticompetitive. The clergy members have denounced bills to
criminalize acts of charity, like driving an undocumented
immigrant to church or the doctor. Lawyers have said new
layers of enforcement paperwork would heavily burden
legitimate business and overwhelm state bureaucracies.
Police chiefs and sheriffs are leading the skeptical
resistance to the bills, which frequently involve having
local police checking the immigration status of people they
stop. A report released on Thursday by a national police
research group looked at cities where police officials had
been drawn into heated immigration debates. Its
conclusions: federal enforcement is no job for local
officers, who should be forbidden to arrest or detain
people solely because of their immigration status.
The reasons: it costs too much, prompts false-arrest
lawsuits and frightens law-abiding immigrants. "I have a
responsibility to provide service to the entire community -
no matter how they got here," said Chief Charlie Deane of
the Prince William County Police Department in Virginia.
"It is in the best interest of our community to trust the
police."
The chiefs of Nebraska's two largest police departments -
in Lincoln and Omaha - recently told the State Legislature
basically the same thing.
A peculiar mix of nativism and immigration panic has pushed
the immigration debate far out into the desert of
extremism. It's going to take a serious effort by saner
voices to ensure that what happens in Arizona stays there."
("The Anti-Arizonans," New York Times (March 4, 2011).)
The Washington Post recently added: "Thanks largely to a
backlash from business, state legislatures elsewhere have balked
at adopting Arizona-style laws, though a few, particularly in
the South, have passed bills designed to deny opportunities to
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illegal immigrants and keep them in the shadows. The business
backlash is motivated partly by fears that other states could
suffer Arizona's fate: boycotts and cancellations that have
meant tens of millions of dollars in lost revenue for hotels,
restaurants and other businesses that rely on visitors. But
businesses also fear the potential economic damage from mass
deportation." ("Arizona Demonstrates The Lunacy Of Mass
Deportations," Washington Post (March 28, 2010).)
According to the author, "AB 26 differs from the 'Arizona Law'
in two important ways:
Due to the epidemic of minors being trafficked into our
State, with children being prostituted out on our city
streets in San Diego, San Francisco, Los Angeles and
Sacramento, we have added an enhancement of life in prison
for anyone caught trafficking minors into California for
the purposes of sexual slavery. This will apply to anyone
who is engaged in this evil trade, whether they traffic the
minors across our Southern border or bring them in by
plane, boat, car, or simply pick them up on our streets and
transport them within our state.
AB26 will add 10 years to the sentence of any "coyote"
(smuggler) who smuggles a woman into California and rapes
her on California soil as part of the cost of passage. This
is a common practice that must be exposed and stopped, and
AB 26 does that."
Pending Litigation Regarding Arizona Legislation. AB 26 appears
to be substantially identical to the language of two bills from
Arizona - last year's high-profile SB 1070, and a preceding
measure dating from 2007. Both Arizona laws have been the
subject of multiple and ongoing legal challenges, apparently
unbeknownst to the author, who indicated on the Committee's
background information worksheet that the issues addressed in
the bill are the subject of no pending litigation.
The State of Arizona was sued by the United States to enjoin
implementation of SB 1070. The Unites States was immediately
granted a preliminary injunction blocking the measure. The
United States has argued that the measure is unconstitutional
because the regulation of immigration is the exclusive role of
the federal government under the U.S. Constitution, and that
Arizona's law conflicts with and burdens federal immigration and
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foreign policy as established by Congress. The case is now
before the federal court of appeal where it has been argued and
is awaiting decision. (See United States v. State of Arizona,
No. 10-01413 (D. Ariz.), appeal docketed, No. 10-16645 (9th
Cir.) 2011 WL 460253.) Related law suits have been filed by
civil rights, business and religious organizations including
MALDEF, ACLU and NAACP, who likewise argue that the Arizona bill
intrudes on federal immigration interests , promotes racial
profiling and threatens minority communities, interferes with
community law enforcement efforts, and violates constitutional
guarantees of equal protection, free speech, due process,
unreasonable search and seizure, among others provisions. (See
Friendly House v. Whiting, No. 10-1061 (D. Ariz.) 2010 WL
4219867.)
The part of AB 26 derived from 2007-08 Arizona legislation has
likewise been challenged. This provision is found in section 4
of the AB 26 regarding employment, discussed in more detail
below. (See Arizona Rev. Stats. sections 23-212, 23-212.01,
enacted by HB 2779 (2007) and HB 2745 (2008) (further amended by
SB 1070 of 2010 to require employers to prove entrapment by
clear and convincing evidence).) These provisions have been
challenged by businesses and civil rights organizations, and the
case is now pending before the United States Supreme Court.
(See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856
(9th Cir. 2009), cert granted sub nom., Chamber of Commerce of
the United States v. Candelaria, 130 S. Ct. 3498 (2010).) See
also Lozano v. City of Hazleton, 620 F.3d 170, 210 (3d Cir.
2010)(striking down city ordinance that prohibited the
employment of undocumented aliens and penalized businesses by
suspending business licenses).) A decision is expected to be
issued by June.
One of the principal issues in the Chamber of Commerce case is
whether states have the authority to impose rules on employers
that differ from those established by federal law. An array of
prominent Arizona employer and trade associations had asked the
Court to decide:
Whether an Arizona statute that imposes sanctions on
employers who hire unauthorized aliens is invalid under a
federal statute that expressly "preemptİs] any State or
local law imposing civil or criminal sanctions (other than
through licensing and similar laws) upon those who employ,
or recruit or refer for a fee for employment, unauthorized
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aliens." 8 U.S.C. § 1324a(h)(2).
Whether the Arizona statute, which requires all employers
to participate in a federal electronic employment
verification system, is preempted by a federal law that
specifically makes that system voluntary. 8 U.S.C. §
1324a.
Whether the Arizona statute is impliedly preempted because
it undermines the "comprehensive scheme" that Congress
created to regulate the employment of aliens.
Under the Supremacy Clause of the United States Constitution
(Article VI, Clause 2), federal law may either expressly or
implicitly preempt state or local law. (See Hillsborough County
v. Auomated Med. Labs., 471 U.S. 707, 713 (1985). In cases of
express preemption, Congress "maİkes] its intent known through
explicit statutory language. English v. Gen. Elec. Co., 496
U.S. 72, 78-79 (1990). Implied preemption, on the other hand,
arises in one of two circumstances. Field preemption occurs
when a state or municipality purports to "regulate conduct in a
field that Congress intended the Federal Government to occupy
exclusively." Id. Conflict preemption can occur "where state
law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress." (Id.)
Federal preemption carries particular force in the context of
immigration because regulation of immigration and immigrants,
legal and illegal, is "unquestionably exclusively a federal
power." (De Cana v. Bica, 424 U.S. 351, 354 (1976).)
Federal Immigration Enforcement Efforts . Recent media reports
indicated that fortification of the U.S.-Mexico border has
reached an all-time peak.
The ranks of Border Patrol agents top 17,600. Nearly 650
miles of additional fencing is up. Four unmanned drones
patrol from California to the Gulf of Mexico. Twelve
hundred National Guard soldiers are on the ground. Camera
systems numbering 467 sweep the perimeter and 10,800 ground
sensors lie in wait. Given this unprecedented expansion in
resources during the past decade, U.S. government officials
said the southwest border is the tightest it has ever been.
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Last week, congressional Republicans announced that they're
drafting legislation to further bolster border security -
add more customs officers, anti-narcotics teams and
surveillance equipment. Janet Napolitano, head of the
Homeland Security department, said Friday that her agency
has and will continue to strengthen enforcement of the
southwest border.
Customs and Border Protection Commissioner Alan Bersin
credits the cascade of money, staffing and technology
flowing into the southwest border region for causing a drop
in apprehensions and leading to the lowest rates of illegal
entry from Mexico into the U.S.
The number of apprehensions fell 62 percent from 2005
through last year - to a total of 447,731 in 2010. It's
unclear how much the Great Recession, which dried up many
jobs north of the border, deterred would-be illegal
migrants. Bersin said a good portion of people who try to
cross the border illegally are detained. He cited a rate of
90 percent for the San Diego sector and nearly 100 percent
for El Paso.
("Is U.S.-Mexico Border Secure Enough?," San Diego Union-Tribune
(April 2, 2011).)
In addition to stepped-up border security, the federal
government has also increased enforcement of existing
prohibitions against hiring immigrants who lack work
authorization. According to published report, Secretary of
Homeland Security Janet Napolitano in 2009 directed immigration
officials to focus their worksite enforcement resources on the
criminal prosecution of employers who knowingly hire illegal
immigrants. In fiscal year 2010, a record 180 business owners,
employers and managers were charged with illegal hiring, up from
114 in fiscal 2009 and 135 the previous year. Also in fiscal
2010, immigration officials conducted more than 2,200 employer
audits, up from more than 1,400 in fiscal 2009. From 2008
through July 31, 2010, ICE levied more than $4 million in fines
nationally. (See "Firm's Owner Gets 10 Months For Hiring
Illegal Immigrants, Los Angeles Times (March 9, 2011); "Federal
Immigration Crackdown May Cost California Nursery," Sacramento
Bee (Mar. 30, 2011).) These articles report on two recent
examples in California demonstrating this effort.
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This Bill Proposes Many New Crimes and Obligations For Local Law
Enforcement Agencies, Which Are Not Within This Committee's
Jurisdiction And Would Need Further Examination By the Public
Safety Committee. In addition to the employer and government
mandates and penalties discussed below, this bill would add many
new crimes and law enforcement obligations. These provisions
are within the jurisdiction of the Committee on Public Safety,
to which the bill has been double-referred, and are therefore
not analyzed here.
In summary, the criminal provisions would:
Require a peace officer to cause the removal and either
immobilization or impoundment of a vehicle if the peace
officer determines that a person is driving the vehicle while
the person is engaged in certain acts involving an alien
unlawfully in the United States, as specified.
Make it a misdemeanor for a person to be present on any public
or private land while at the same time the person is in
violation of specified federal immigration laws. The bill
would make it a felony to be in violation of this provision if
the person is in possession of specified drugs, weapons, or
property, as specified.
The bill would make it a felony for a person to intentionally
engage in the smuggling of a human being for profit or
commercial purposes, as specified, and would provide differing
penalties depending on the circumstances of the offense.
Notwithstanding any law to the contrary, permit a peace
officer to lawfully stop any person who is operating a motor
vehicle if the officer has reasonable suspicion to believe the
person is in violation of any civil traffic law and the
provisions regarding smuggling.
The bill would make it a misdemeanor for an occupant of a
motor vehicle to attempt to hire persons for work if the motor
vehicle blocks or impedes the normal movement of traffic.
The bill would also make it a misdemeanor to enter a motor
vehicle in order to be hired by an occupant if the motor
vehicle blocks or impedes the normal movement of traffic.
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The bill would make it a misdemeanor for a person who is
unlawfully present in the United States and who is an
unauthorized alien, as defined, to knowingly apply for or
solicit work or perform work as an employee or independent
contractor.
The bill would make it a misdemeanor to transport or move or
attempt to transport or move an alien when the person knows,
or recklessly disregards the fact, that the alien is in the
United States unlawfully, as specified.
The bill would make it a misdemeanor to conceal, harbor, or
shield or attempt to conceal, harbor, or shield an alien from
detection if the person knows, or recklessly disregards the
fact, that the alien is in the United States unlawfully, as
specified.
The bill would make it a misdemeanor to encourage or induce an
alien to come to, or reside in, this state if the person
knows, or recklessly disregards the fact, that the alien would
be entering or residing in this state unlawfully. The bill
would make a violation of these provisions a felony if the
violation involves 10 or more illegal aliens.
Employer Mandates And Sanctions - To Be Enforced By The Attorney
General And Local District Attorneys - Complaints To Be Filed By
Any Person Regardless of Relationship Or Alleged Harm. The bill
has a number of provisions directed at employers. Specifically
it:
Prohibits an employer from either knowingly or intentionally
employing an unauthorized alien, as specified.
Requires the Attorney General to prescribe a complaint form by
which any person wishing to do so may allege a violation of
the prohibition against employing unauthorized aliens, which
may be submitted by a complainant anonymously.
Establishes a process for persons to file complaints of
violations of these provisions with the Attorney General or a
district attorney, and makes it a misdemeanor to make a false
and frivolous complaint alleging a violation of these
provisions by an employer.
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Requires the investigation of complaints by the Attorney
General or relevant district attorney, and requires that if
the Attorney General or district attorney determines that the
complaint is not "false and frivolous," the Attorney General
or district attorney shall do both of the following: (A)
Notify the United States Immigration and Customs Enforcement
of the unauthorized alien; and (B) Notify the local law
enforcement agency of the unauthorized alien.
Requires the Attorney General to notify the appropriate
district attorney to bring an action against the employer if
the complaint is not found to be both "false and frivolous"
and specifies penalties and other consequences, including the
suspension of certain licenses, for employers that violate
these provisions.
Requires every employer to verify the employment eligibility
of employees through the federal E-Verify program and require
employers to participate in the federal E-Verify program in
order to be eligible for economic development incentives, as
specified.
These provisions appear to apply to every employer regardless of
the size of the business. While the employer opposition to this
bill is focused on private businesses, it appears that the bill
is not limited to the private sector. The bill uses the term
"employer" without limitation or definition, suggesting that its
obligations do not depend on whether the employer is private or
public. By contrast, other provisions of the Labor Code that
are not intended to apply to public entities expressly exclude
them. (See, e.g., sections 220, 432.2.) Other statutes that do
not specifically exempt governmental employers have been held to
cover them. (See Sheppard v. North Orange County Regional
Occupational Program, 191 Cal. App. 4th 289 (2010).)
Concerns Regarding Reliability of Federal E-Verify Program.
Critics in the business community and elsewhere have complained
about the reliability of the E-Verify program.
Touted by some as an essential tool for stopping illegal
immigration, an independent research firm recently found the
E-Verify system flags less than half the number of illegal
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workers it checks. According to the study, E-Verify, fails to
catch 54 percent of the illegal workers run through the system
because it cannot detect identity fraud, the report states. The
report was based on research conducted by Westat, a
Maryland-based company under contract to U.S. Citizenship and
Immigration Service. (See "Report: E-Verify Misses A Lot Of
Illegal Workers," Inland Valley Daily Bulletin (February 25,
2010).)
The Los Angeles Times commented:
We thought the reason to distrust the program was its
tendency to get things wrong, ensnaring legal, permanent
residents and citizens in red tape, halting their
legitimate employment. Now it turns out that E-Verify is
not misidentifying legitimate workers in troubling numbers
but clearing undocumented immigrants.
According to a recent report by Westat, a research company
that evaluated the program for the Department of Homeland
Security, E-Verify fails to flag illegal workers 54% of the
time. The problem is identity fraud. The online program
checks a worker's information against Homeland Security and
Social Security databases. And if a valid Social Security
number is presented, even if it's already in use, the
program often recognizes it as legitimate.
Before employers can be held accountable, they need a tool
that works.
("E-Verify: 'E' is For Error," Los Angeles Times (March 8,
2010).)
These problems have apparently not yet been corrected. Another
report in December 2010 from the Government Accountability
Office noted that legal workers were sometimes wrongly
identified. Those who are mistakenly red-flagged tend to be
foreign-born, creating "the appearance of discrimination,"
according to the December report, and they can face bureaucratic
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nightmares to clear their record. (See "Conservative Inland
Empire Cities Crack Down On Illegal Workers," Los Angeles Times
(February 14, 2011).)
Additional Governmental Obligations And Broad Private Right of
Action Against All State and Local Governments. Section 3 of
the bill would add new obligations on and restrictions against
local governments and their policies, whether the result of
individual action or voter approval.
This section provides:
No official or agency of the state or a city, county or
other political subdivision may adopt a policy that limits
or restricts the enforcement of federal immigration laws to
less than the full extent permitted by federal law.
Except as otherwise provided in federal law, officials or
agencies of İstate or local government] may not be
prohibited or in any way restricted from: sending,
receiving, or maintaining information relating to the
immigration status of any individual or exchanging that
information with any other federal, state, or local
governmental entity for any of the following purposes: (1)
Determining eligibility for any public benefit, service, or
license provided by any federal, state, city, county, city
and county, or other political subdivision; (2) Verifying
any claim of residence or domicile if determination of
residence or domicile is required under the laws of the
state or a judicial order issued pursuant to a civil or
criminal proceeding; (3) Confirming the identity of any
person who is detained; (4) If the person is an alien,
determining whether the person is in compliance with the
federal registration laws prescribed by Title II of Chapter
7 of the Federal Immigration and Nationality Act.
Under the bill, any person may bring an action in superior court
to challenge any official or agency of the state or of a city,
county, city and county, or other political subdivision that
adopts or implements a policy that limits or restricts the
enforcement of federal immigration laws to less than the full
extent permitted by federal law.
AB 26
Page 18
When a court finds a violation, it shall order any of the
following: (1) that the person who brought the action recover
court costs and attorney's fees (prevailing defendants would not
be entitled to recover their fees); (2) a civil penalty of not
less than one thousand dollars ($1,000) and not more than five
thousand dollars ($5,000) for each day that the policy has
remained in effect after the filing of an action pursuant to
this subdivision.
Law enforcement officers (but apparently only those officers)
are required to be indemnified by their agency against
reasonable costs and expenses, including attorney's fees,
incurred by the officer in connection with any action, suit, or
proceeding brought pursuant to this section to which the officer
may be a party by reason of the officer being or having been a
member of the law enforcement agency, except in relation to
matters in which the officer is adjudged to have acted in bad
faith.
Section 3 has drawn the concern of the Civil Justice Association
of California, which states: "İP]art of the bill statutorily
creates a private right of action that is unnecessary. (See
page 4, lines 31-36) While federal law discourages taxpayer
standing in bringing lawsuits against government entities or
officers, under California's Code of Civil Procedure section
526a, a taxpayer is permitted to bring an action to restrain or
prevent waste or an illegal expenditure of public money. No
showing of special damage to a particular taxpayer is required.
Taxpayer suits already provide a general citizen a remedy for
controlling illegal governmental activity (County of Santa Clara
v. Superior Court (2009) 171 Cal.App.4th 119). Additionally,
under existing law civil grand juries already may be convened to
investigate wrongful activity by government officials and
enforcement action is appropriately vested in government
attorneys."
CJAC adds, "Additionally, we are concerned that other provisions
in the bill will encourage abusive lawsuits. This bill would
specifically provide for a private right of action to challenge
any "policy" that limits or restricts the enforcement of federal
laws and award attorney's fees and costs to these plaintiffs.
(See page 4, lines 38-39) It is unclear how infringing a policy
has to be to spark litigation and with generous cost awards, for
formal a policy would be stretched."
AB 26
Page 19
A Prior Effort To Regulate Local Government Policies Regarding
Immigration Was Invalidated. Proposition 187 of 1994 prohibited
any city, county, or other legally authorized local governmental
entity from preventing or limiting the cooperation of any law
enforcement agency with federal authorities regarding persons
arrested and suspected of being present in the United States in
violation of federal immigration laws, as specified. This
provision was held unenforceable as preempted by federal law in
League of United Latin American Citizens v. Wilson (1997) 997
F.Supp. 1244. Similarly, Prop. 187 required every law
enforcement agency, with respect to any person who is arrested
and suspected of being present in the United States in violation
of federal immigration laws, to, among other things, attempt to
verify the legal status of such person and notify the Attorney
General and federal authorities of any apparent illegal status.
This provision was likewise invalidated as preempted by federal
law in League of United Latin American Citizens v. Wilson (1997)
977 F.Supp. 1244.
Would This Bill Potentially Exacerbate California's Historic
Budget Crisis? A complete analysis of the bill's fiscal
consequences will be conducted by the Appropriations Committee
if the bill advances through this Committee and the Public
Safety Committee. However, it cannot escape notice at this
juncture that the bill imposes substantial and potentially
costly new obligations on both state and local government at a
time when members of the Legislature of both parties have
decried recent budget cuts and there appears to be little
prospect of additional state or local income. The bill provides
no new revenue to fund these additional government obligations
(although such penalties as may be collected from employers who
are found to have violated the law would be set aside for "gang
and immigration enforcement and for county jail reimbursement
costs relating to illegal immigration.") The author has not
provided the Committee with an estimate of financial penalties
that might be collected, but appears to contend that the state
will save money by diminished provision of services to
undocumented immigrants.
ARGUMENTS IN SUPPORT: California Federation of Republican Women
states: "AB 26 would allow our law enforcement agencies to
implement and actually execute immigration laws in ways our
federal government fails to take responsibility and enforce.
The State of California is in disrepair - we have a $26 billion
AB 26
Page 20
budget deficit, a growing prison population wen can't afford,
and lawmakers that refuse to address the issues. State services
afforded to illegal immigrants cost California an estimated $10
billion a year. AB 26 seeks to repair some of these problems by
administering tough immigration laws while protecting
hardworking, law-abiding taxpayers and business owners."
Concerned Women For America of California argues, "The U.S.
Government's Bureau of Labor Statistics reported that only
Nevada, at 14.2 percent, exceeded California's 12.4 percent
unemployment rate for January 2011. Assemblyman Donnelly's bill
aims to ensure that California jobs would be held by legal
workers." CWF adds, "California families have borne the burden
of providing state benefits to people who enter our state
illegally for too long. Taxpayers deserve to have their
hard-earned funds working to benefit legal citizens of the
state."
Capitol Resource Family Impact comments, "In 2007, then San
Francisco Mayor Gavin Newsom vowed to ignore federal immigration
law and in fact said he would do everything he could discourage
federal authorities from enforcing the law. ?. Rogue
politicians like Newsom continue to wreak havoc between the
federal government and local entities that refuse enforcement of
immigration laws and vow defiance. AB 26 would codify Newsom's
behavior as prohibited, and if passed, against California law.
? Federal law supersedes the personal opinion or political
inclination of public officials or agencies. If we continue to
allow politicians to selectively choose what law they favor and
which one they do not and therefore which one they will enforce
and which one they will not, them our system of governance
including our laws is rendered irrelevant."
ARGUMENTS IN OPPOSITION: The Civil Justice Association of
California opposes the portions of the bill with which this
Committee is concerned, "parts of which appear unnecessary and
parts of which are troubling." CJAC contends that these
provisions would increase the likelihood of potentially abusive
lawsuits. " CJAC opposes the private right of action in the
bill, noting that it "grants an individual the right to sue on
behalf of the general public, whether the individual has
suffered harm or not." This provision, CJAC argues, "is not
only dangerous public policy, it is also unnecessary." In
addition, CJAC expresses opposition to the provision of the bill
allowing attorney's fees and expert witness costs.
AB 26
Page 21
The California Employment Law Council also opposes the bill,
noting that it is particularly concerned about the provisions
proposed by Section 4.
The language begins with a mandatory requirement that the
Attorney General or district attorney investigate all
allegations of employment of unauthorized workers. If the
investigation reveals that the allegation is not frivolous,
the bill contains another mandatory requirement that an
action be filed by the district attorney. Thereafter, for
even one violation, the bill requires that employers be
placed on a three-year probationary program, requiring
extensive new reporting to the district attorney on each
new employee hired by the employer. For large employers,
this means that if a rogue human resources employee hires
even one unauthorized worker, the company could be forced
to send reports to the district attorney on every new
employee hired for three years.
The penalties for a second violation are far more
draconian. Under proposed section 1550 (f)(2), a second
violation carries a mandatory penalty of permanent
revocation of all licensees necessary to carry on the
business at that particular location. This appears to
suggest that for hiring as few as two unauthorized workers,
an employer could be permanently out of business at that
location, potentially jeopardizing millions of dollars of
investment in buildings, equipment, training, and more.
CELC has a consistent history of opposing measures relating
to unauthorized workers that essentially propose the "death
penalty" for businesses committing relatively small
violations. Many CELC member companies employ thousands of
people in California, helping to sustain the economy, and
the entire existence of a company should not be at risk for
two violations by a rogue hiring manager.
We appreciate the seriousness of the issue identified by
the author of AB 26, but believe that the bill will impose
enormous costs on the state and local governments, require
potentially enormous reporting to already overburdened
prosecutors, and threaten the existence of responsible
employers.
AB 26
Page 22
The California Association of Health Facilities (CAHF) states in
opposition:
Immigration has become a "hot button" issue for California
employers. Immigrant workers, while admittedly some are in
this country illegally, are essential to the state's economic
well-being and to the future of thousands of California
businesses. Moreover, as the Baby Boom generation retires over
the next two decades, California faces a shrinking workforce
which will require employers to have access to immigrant
workers to perform work that most Americans won't do but are in
high demand by businesses and consumers.
CAHF does not condone employers who knowingly hire persons who
are not eligible to work within the United States. However,
CAHF is opposed to AB 26 because it imposes an additional
penalty - by creating a cause of action to be prosecuted by the
Attorney General or district attorney - for employers who are
already regulated under federal law with regard to the
verification and submission of social security numbers.
AB 26 adds new penalties on employers and will result in
increased costs due to the new layer of liability related
to hiring practices. AB 26 would create new opportunities
for disgruntled employees, dissatisfied customers, jealous
competitors, or just plain troublemakers to file specious
criminal allegations against business owners. For these
reasons, CAHF must oppose AB 26.
The California Landscape Contractors Association also writes in
opposition, stating: "Where we differ is on the question of what
level of government bears responsibility for immigration law
enforcement, and the extent to which employer conduct should be
made subject to state level civil and criminal sanctions as part
of any enforcement mechanism. It has long been CLCA's position
that immigration enforcement is a federal responsibility and
that the President and the United States Congress should act
expeditiously to: (1) secure our nation's borders; (2) create a
pathway to legal status for unauthorized immigrants currently
working within the United States; (3) assure a future flow of
immigrant temporary workers as needed to meet the workforce
needs of agriculture and other service industries; and (4)
create fair and reasonable requirements on employers to hire
only persons legally permitted to work in this country."
AB 26
Page 23
Los Angeles County District Attorney Steve Cooley states:
İO]ur office is opposed to the provision of AB 26 that
would require a district attorney's office to investigate
and prosecute any complaint that is filed alleging an
employer has knowingly employed an unauthorized alien.
Under existing law a district attorney has the autonomy to
investigate and prosecute those crimes deemed most critical
and important in their communities. However, under the
provisions of AB 26 this discretion is eliminated.
Furthermore, because the penalty proposed for knowingly
employing an unauthorized alien is only a misdemeanor the
statute of limitations for this crime is only one year.
Because of this short window for the running of the statute
of limitations, not only would a district attorney's office
have to investigate the allegation it would have to do so
immediately in order to file a case within the statutorily
allowable timeframe.
District attorney's offices typically only employee a
limited number of district attorney investigators. In Los
Angeles County, our Bureau of Investigation has seen a
significant reduction of its operational budget due to the
ongoing economic crisis. Even with a reduced budget, our
investigators still conduct some of the most unique,
sensitive, and complex criminal investigations in law
enforcement today. Our investigators are involved in a
variety of operations ranging from dealing with violent
street gangs, high profile political corruption cases, and
organized crime activities such as vehicle theft and
insurance and workers' compensation fraud. However if AB
26 were to pass we would have to divert investigators from
murder cases, gang cases, political corruption cases like
the one involving the City of Bell, and fraud cases
committed by international organized crime entities, felony
domestic violence cases, stalking and hate crimes, consumer
fraud, and other high impact crimes to investigate what
amounts to a misdemeanor employment law case. This is not
the best use of the valuable and limited time of our
district attorney investigators.
An array of civil rights and labor organizations also opposes
the bill. Among others, the Mexican American Legal Defense and
AB 26
Page 24
Educational Fund (MALDEF) describes the bill a "a misguided
effort at state regulation and enforcement of immigration and
federal laws" that "also poses a significant threat to the
general welfare and fundamental freedoms of all Californians.
While MALDEF argues against many of the criminal provisions in
the bill on public safety grounds, it also attacks the bill more
broadly as preempted by the U.S. Constitution which grants
Congress the exclusive power to establish a uniform rule of
Naturalization and to regulate Commerce with foreign Nations
(U.S. Const. Art. I § 8, cl.4 and cl.3), and because Congress
has created a comprehensive immigration scheme through the
Immigration and Nationality Act (INA) and its many modifications
and amendments. The bill's provisions are at odds with this
constitutional scheme by encroaching on and conflicting with
federal and immigration law, MALDEF argues. "If adopted, AB 26
would create a constitutionally impermissible state immigration
regulation scheme."
Public Advocates likewise opposes the bill "because of its
objective to regulate and enforce immigration and federal laws.
Such an objective by a state to regulate immigration is
Constitutionally preempted. If adopted, AB 26 would create a
constitutionally impermissible state immigration regulation
scheme." In addition, Public Advocates argues:
AB 26 conflicts with the rights of students in California's
public elementary and secondary education systems. The
U.S. Supreme Court held in Plyler v. Doe that undocumented
children have a constitutional right to receive a free
public K-12 education. This right is reinforced in federal
immigration law, the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, U.S. Code, Title 8,
Section 1643İa]İ2]) and in California case law, League of
United Latin American Citizens v. Wilson (CD Cal. 1997) 997
F.Supp. 1,244.), holding Proposition. 187 unconstitutional
and unenforceable, based on the Plyler decision. See
Education Code Section 48215.
The Family Educational Rights and Privacy Act (FERPA)
generally prohibits schools from providing personally
identifiable information from students' records to third
parties. To the extent AB 26 does not apply to free public
education, it should be noted that California's education
system also provides state and federal benefits such as
child care, day care, meal and nutrition programs. Child
AB 26
Page 25
and Adult Care Food Program (CACFP). If adopted, AB 26
would place a huge financial burden on our already
underfunded school system simply for the cost of training
public employees about immigration law enforcement in the
context of FERPA, not to mention the likely litigation.
20 U.S.C. § 1232g (2003).
AB 26 also conflicts with the rights of students in
California's public colleges and universities, immigrants
and U.S. citizens alike, that are eligible for out-of-state
tuition waivers. The student information obtained in this
waiver process is confidential. Education Code Section
68130.5(d). The Assembly has recently reinforced its
support of this policy by its failure to approve AB 63
(Donnelly), which sought to repeal it.
REGISTERED SUPPORT / OPPOSITION :
Support
California Federation of Republican Women
Capitol Resource Family Impact
Concerned Women for America of California
Jim Maher, Escondido Police Chief
We the People California's Crusade
Several individuals
Opposition
American Civil Liberties Union
Anti-Defamation League
Asian Americans for Civil Rights and Equality
Asian Pacific American Legal Center
Attorney General of California
California Association of Health Facilities
California Chapter of the American Fence Association
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Employment Law Council
California Fence Contractors Association
California Federation of Teachers
California Immigrant Policy Center
California Labor Federation
California Landscape Contractors Association
California Official Court Reporters Association
California Teamsters Public Affairs Council
AB 26
Page 26
Civil Justice Association of California
Coalition for Humane Immigrant Rights of Los Angeles
Colombo Americans in Action
Colombian Alliance in the United States of America
Common Counsel Foundation
Council of Mexican Federations
County of Santa Clara, Board of Supervisors
Dioceses of San Bernardino
Engineers and Scientists of California
Engineering Contractors Association
Flasher Barricade Association
Hispanic Association of Colleges and Universities
Immigrant Legal Resource Center
International Longshore and Warehouse Union
Japanese American Citizens League
Los Angeles County District Attorney's Office
Los Angeles County Sheriff Lee Baca
Marin Builders Association
Mexican American Legal Defense and Educational Fund (MALDEF)
National Association of Social Workers (NASW)
Professional and Technical Engineers, Local 21
San Francisco Japanese American Citizens League
Service Employees International Union (SEIU)
Services, Immigrant Rights and Education Network (SIREN)
UNITE HERE
United Food and Commercial Workers-Western States Conference
Utility Workers Union of America, Local 132
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334