Senate Fact Sheet

ARIZONA STATE SENATE

Fifty-Sixth Legislature, Second Regular Session

AMENDED

FACT SHEET FOR H.C.R. 2060

lawful presence; e-verify program; penalties

(NOW: border; benefits; fentanyl; illegal entry)

Purpose

Subject to voter approval, statutorily makes it unlawful for a person who is an unlawful immigrant to enter Arizona from a foreign nation at any location other than a lawful port of entry. Outlines requirements for the issuance of an order to return to a foreign nation, civil immunity and enforceability of unlawful immigration laws. Prohibits natural persons from submitting false documents when applying for public benefits or employment.

Background

Statute requires any natural person who applies for a state or local public benefit, or any federal public benefit that requires participants to be citizens or legal residents of the United States or otherwise lawfully present in the United States, to submit at least one of the following documents demonstrating lawful presence in the United States: 1) an Arizona driver license issued after 1996 or an Arizona nonoperating identification license; 2) a birth certificate or delayed birth certificate issued in any state, territory or possession of the United States; 3) a U.S. certificate of birth abroad; 4) a U.S. passport; 5) a foreign passport with a U.S. visa; 6) an I-94 form with a photograph; 7) a U.S. citizenship and immigration services employment authorization document or refugee travel document; 8) a U.S. certificate of naturalization; 9) a U.S. certificate of citizenship; 10) a tribal certificate of Indian blood; or 11) a tribal or Bureau of Indian Affairs affidavit of birth. Any person applying for such benefits must sign a sworn affidavit stating under penalty of perjury that the documents presented are true, and failure to report discovered violations of federal immigration law by an employee of the state is a class 2 misdemeanor (A.R.S. §§ 1-501 and 1-502).

E-Verify is a web-based system through which employers create cases based on information taken from an employee's Form I-9, which is then electronically compared to information available to the U.S. Department of Homeland Security and the Social Security Administration. Similarly, the Systematic Alien Verification for Entitlements (SAVE) Program is an online service that allows federal, state and local benefit-granting agencies to verify a benefit applicant's immigration status or citizenship and is administered by the U.S. Department of Homeland Security. After hiring an employee, every employer in Arizona must verify the employment eligibility of the employee through the E-Verify program and must keep a record of the certification for the duration of the employee's employment, or at least three years, whichever is longer. An employer must also be registered with and participate in the E-Verify program in order to receive an economic development incentive (A.R.S. § 23-214).

Any unlawful immigrant must be fined and imprisoned for not more than six months, or for not more than two years for a subsequent offense involving: 1) entering or attempting to enter the United States at any time or place other than as designated by immigration officers; 2) eluding examination or inspection by immigration officers; or 3) attempting to enter or obtain entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact (8 U.S.C. § 1325). Any unlawful immigrant who is physically present in the United States or who arrives in the United States, regardless of whether the unlawful immigrant enters through a designated port of arrival, and including an unlawful immigrant who is brought to the United States after having been interdicted in international or United States waters, may apply for asylum. In order to be granted asylum, the unlawful immigrant must demonstrate that they are a refugee as defined in federal statute, and that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for persecuting the applicant (8 U.S.C. § 1158).

The federal Deferred Action for Childhood Arrivals (DACA) program allows qualified individuals without lawful immigration status to defer removal of the individual from the United States. Deferred action remains in effect for a period of two years, subject to renewal, and provides recipients with employment authorization. On July 16, 2021, the U.S. District Court for the Southern District of Texas issued a vacatur and a permanent injunction against the continued operation of the program, thereby enjoining the U.S. Department of Homeland Security from granting DACA status for new applicants (U.S. Department of Homeland Security).

A person is guilty of a class 2 felony if they knowingly transport a narcotic drug for sale. A class 2 felony for a non-dangerous offense carries a minimum sentence of 4 years, a presumptive sentence of 5 years and a maximum sentence of 10 years. A class 2 felony for a non-dangerous, repetitive offense carries a minimum sentence of 6 years, presumptive sentence of 9.25 years and a maximum sentence of 18.5 years (A.R.S. §§ 13-702; 13-703 and 13-3408).

According to a Joint Legislative Budget Committee fiscal note issued for H.B. 2748, a bill with similar provisions to those contained in H.C.R. 2060, as amended, there may be a number of different fiscal impacts to state and local revenues if H.C.R. 2060 is approved by the voters, the magnitude of which cannot be determined in advance (JLBC).

Provisions

Illegal Entry

1.   Makes it unlawful for a person who is an unlawful immigrant to enter or attempt to enter Arizona directly from a foreign nation at any location other than a lawful port of entry.

2.   Outlines the following as affirmative defenses to illegal entry:

a)   the federal government has granted the defendant lawful presence in the United States or asylum under federal law; and

b)   the defendant's conduct does not constitute a violation of improper entry by an alien under federal law.

3.   Prohibits the arrest of a person for a violation of illegal entry without probable cause.

4.   States that probable cause for an illegal entry arrest is established by any of the following:

a)   a law enforcement officer who witnesses the violation;

b)   a technological recording of the violation; or

c)   any other constitutionally sufficient indicia of probable cause.

5.   Stipulates that provisions relating to illegal entry may only be enforced prospectively, do not apply retroactively, and must not be construed to apply to the conduct of any person who entered Arizona unlawfully from a foreign nation at any time before illegal entry provisions become enforceable.

6.   States that an unlawful immigrant lacks lawful presence if the unlawful immigrant was either:

a)   paroled pursuant to a programmatic grant of parole, including under any parole program not created under notice-and-comment rulemaking under which an unlawful immigrant would be entitled to parole and that has been applied to more than 100 unlawful immigrants during one calendar year; or

b)   required to be detained under the federal Immigration and Nationality Act but was not detained and instead was paroled into the United States.

7.   Classifies a violation of illegal entry as a class 1 misdemeanor, except that a violation is a class 6 felony if the person has previously been convicted of illegal entry.

8.   Stipulates that a person convicted of illegal entry is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served a term of incarceration as determined by the court.

Order to Return to a Foreign Nation

9.   Allows a court, at any time before a person is convicted of or adjudicated for an illegal entry violation, to dismiss the charge pending against the person and issue an order to return to a foreign nation.

10.  Stipulates that an order to return to a foreign nation discharges the person and requires the person to return to the foreign nation from which the person entered or attempted to enter the United States or the person's nation of origin.

11.  Allows an order to return to a foreign nation to be issued if:

a)   the person agrees to the order;

b)   the person has not previously been convicted of an illegal entry offense or previously obtained a discharge under an order;

c)   the person is not charged with another class 1 misdemeanor or any felony offense; and

d)   before issuance of the order, the arresting law enforcement agency has collected all identifying information of the person, including fingerprints and other applicable photographic and biometric identifiers, and all relevant federal, state and local criminal databases have been cross-referenced to determine if the person is a threat to national security.

12.  Requires a judge, on a person's conviction of an illegal entry offense, to enter an order that requires the person to return to the foreign nation from which the person entered or attempted to enter the United States or the person's nation of origin.

13.  States that an order issued after an illegal entry conviction takes effect on completion of the person's term of incarceration or imprisonment.

14.  Requires an order to include an authorization that allows a state or local law enforcement agency to transport the person to a port of entry or any other point of transfer into federal custody.

15.  States that a person commits refusal to comply with an order to return to a foreign nation if:

a)   the person is charged with or convicted of an illegal entry offense;

b)   an applicable court has issued an order to return to the foreign nation from which the person entered or attempted to enter the United States or the person's nation of origin; and

c)   the person refuses to comply with the order.

16.  Classifies a violation of refusal to comply with an order to return to a foreign nation as a class 4 felony.

17.  Requires the Director of the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR), notwithstanding any other law, to accept persons arrested for or convicted of an illegal entry offense at any state facility that has available capacity, if the county or local law enforcement agency does not have the capacity to incarcerate the person.

Enforcement of Illegal Entry

18.  Prohibits the enforcement of provisions relating to illegal entry in any manner until any part of Section 2 of S.B. 4, 88th Legislature, 4th Called Session (2023) of the State of Texas, or any other law of any other state similar thereto, has been in effect for a period of 60 consecutive days at any time on or after the effective date of the Secure the Border Act.

Civil Immunity

19.  Immunizes a state or local government entity, official, employee or contractor from civil liability for damages arising from a cause of action under the laws of Arizona resulting from action taken by the entity, official, employee or contractor to enforce laws related to illegal entry or orders to return to a foreign nation during the course and scope of the office, employment, or performance for or on behalf of Arizona or the local government.

20.  States that immunity provisions do not affect a defense, immunity or jurisdictional bar available to the state or a government official, or an official, employee or contractor of the state or local government.

Public Benefits and Employment Eligibility

21.  Prohibits, notwithstanding any other law and to the extent allowed by federal law, any natural person who is not lawfully present in the United States from knowingly applying for a federal, state or local public benefit by submitting a false document to any entity that administers the benefits.

22.  States that any natural person who violates the prohibition against submitting false public benefits documents is guilty of a class 1 misdemeanor, except a that person who has committed a previous offense is guilty of a class 6 felony.

23.  States that persons who commit false document violations are not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until they have served a term of incarceration as determined by the court.

24.  Requires an agency or political subdivision that administers public benefits, if a natural person who applies for public benefits is not a citizen or national of the United States, to use the SAVE Program maintained by the U.S. Citizenship and Immigration Services, or any designated successor program, to verify the validity of the applicant's eligibility for benefits.

25.  Stipulates that the requirement for public benefit administering agencies to utilize the SAVE Program as outlined does not relieve a natural person of any requirement to submit documentation that is required for any federal, state or local public benefit.

26.  Prohibits any natural person who is not lawfully present in the United States from knowingly submitting false information for documents to an employer to evade detection of employment eligibility under the E-Verify program.

27.  States that any natural person who violates the prohibition against submitting false employment eligibility documents is guilty of a class 6 felony.

Sale of Lethal Fentanyl

28.  Establishes that a person who is at least 18 years old commits the crime of sale of lethal fentanyl, if the person knowingly commits transporting a narcotic drug for sale, and if both of the following apply:

a)   the person knows that the drug being sold contains fentanyl; and

b)   the fentanyl causes the death of another person.

29.  States that the penalty for sale of lethal fentanyl is a class 2 felony, except that the presumptive, minimum and maximum sentences must be increased by five years.

30.  Establishes an affirmative defense to a charge of sale of lethal fentanyl if the fentanyl and its precursor chemicals were either manufactured in the United States or were lawfully imported into the United States.

Right to Intervene

31.  Provides the President of the Senate, the Speaker of the House of Representatives, the Minority Leader of the Senate or the Minority Leader of the House of Representatives with the ability to file a lawsuit or intervene in any action concerning the Secure the Border Act if the individual seeks to defend the constitutionality, validity or enforceability of the Secure the Border Act.

32.  Stipulates that any settlement of a lawsuit challenging the Secure the Border Act cannot be entered before service of a 21-day notice to the aforementioned entities, and that failure to comply with this requirement invalidates the settlement and constitutes an act of nonfeasance in public office.

Miscellaneous

33.  Defines alien as a person who is not a citizen or national of the United States as described in federal law.

34.  Defines port of entry as a port of entry in the United States as defined in federal regulation.

35.  Defines federal public benefit and state or local public benefit.

36.  Designates this legislation as the Secure the Border Act.

37.  Contains a severability clause.

38.  Contains a statement of legislative findings.

39.  Requires the Secretary of State to submit the proposition to the voters at the next general election.

40.  Becomes effective if approved by the voters and on proclamation of the Governor.

Amendments Adopted by Committee

1.   Adopted the strike-everything amendment.

2.   Stipulates that the requirement for public benefit administering agencies to utilize the SAVE Program as outlined does not relieve a person of any requirement to submit documentation that is required for any federal, state or local public benefit.

3.   Establishes an affirmative defense to a charge of sale of lethal fentanyl if the fentanyl and its precursor chemicals were either manufactured in the United States or were lawfully imported into the United States.

4.   Modifies criteria for establishing guilt for an offense involving sale of lethal fentanyl to state that the fentanyl must have caused the death of another person, rather than have been a substantial cause of the death of another person.

5.   Allows the ADCRR to accept convicted and unconvicted persons charged with or convicted of an illegal entry offense pursuant to an agreement with a county sheriff or local chief law enforcement officer if the county or local law enforcement agency does not have the capacity to incarcerate the person.

6.   Requires an order to return to a foreign nation to include an authorization that allows a state or local law enforcement agency to transport a person to a port of entry, rather than state the manner of the transportation.

7.   Modifies the criteria used to determine when provisions relating to illegal entry may become enforceable.

8.   Makes technical and conforming changes.

Amendments Adopted by Committee of the Whole

1.   Specifies that being a DACA recipient is not an affirmative defense to illegal entry if the program is cancelled or a federal court has issued a final order determining that the program is unlawful, and any appeals of the final order have been exhausted.

2.   States that an alien lacks lawful presence if the alien was either:

a)   paroled pursuant to a programmatic grant of parole, including under any parole program not created under notice-and-comment rulemaking under which an alien would be entitled to parole and that has been applied to more than 100 aliens during one calendar year; or

b)   required to be detained under the Immigration and Nationality Act but was not detained and instead was paroled into the United States.

3.   Removes the overturning or abrogation of S.B. 1070 as a possible enforceability trigger for the illegal entry provisions of the Secure the Border Act.

4.   Specifies that any other state law similar to Texas' S.B. 4 being in effect for 60 consecutive days may also trigger the enforceability of illegal entry provisions of the Secure the Border Act.

5.   Requires a person who is convicted of illegal entry to serve a term of incarceration as determined by the court, rather than serve at least 30 days of incarceration.

6.   Requires, rather than allows, the ADCRR to accept persons who are convicted, or arrested, for illegal entry offenses, and specifies that such persons can be held at any state facility that has available capacity.

7.   Reduces the penalty for a first offense of evading E-Verify requirements from a class 6 felony to a class 1 misdemeanor, and adds that anyone who commits a violation is not eligible for probation, pardon, commutation or suspension of sentence or release on any basis until the person has served the term of incarceration imposed by the court.

8.   Specifies that an order to return to a foreign nation may include an authorization that allows law enforcement to transport a person to any point of transfer into federal custody.

9.   Removes the requirement that an order to return to a foreign nation include the name of the law enforcement officer or state agency that is responsible for monitoring compliance with the order.

10.  Modifies provisions relating to the right to legal intervention.

11.  Updates the legislative statement of findings.

Amendments Adopted by Additional Committee of the Whole

1.   Removes language providing for an affirmative defense for DACA recipients entirely, including exceptions to the affirmative defense.

2.   Prohibits a person from being arrested for an illegal entry offense without probable cause.

3.   Outlines criteria for determining how probable cause is established for illegal entry offenses.

4.   Specifies that an order to return to a foreign nation can require a person to return to the nation from which the person entered the United States, or the person's nation of origin.

5.   Makes technical and conforming changes.