First Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 11-0030.01 Michael Dohr HOUSE BILL 11-1107 HOUSE SPONSORSHIP Baumgardner, Balmer, Barker, Coram, Holbert, Joshi, Scott, Acree, Brown, Conti, Murray SENATE SPONSORSHIP Harvey, Grantham, Renfroe, Lambert, Scheffel, Cadman, Kopp House Committees Senate Committees Agriculture, Livestock, & Natural Resources A BILL FOR AN ACT Concerning enforcement of illegal immigration violations. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill makes changes to the employment verification process and the associated fines. The bill directs state and local officials and agencies (officials and agencies) to fully comply with and assist in the enforcement of federal immigration laws. A law enforcement official and agency must make a reasonable attempt to determine the immigration status of a person during any legitimate contact if reasonable suspicion exists that the person is an unlawful alien, unless the attempt would hinder an investigation. A law enforcement official or agency may not solely consider race, color, or national origin in determining and verifying immigration status, except to the extent permitted by the United States or state constitution. The bill creates the immigration enforcement mission fund to consist of civil penalties paid for certain violations of the bill. The department of public safety may use the moneys in the fund to offset costs of immigration enforcement and to reimburse local governments for costs of county jails. Officials and agencies may not: Restrict sending, receiving, or maintaining immigration status information or exchanging the information with other governmental entities for specified purposes; or Adopt policies that limit immigration enforcement. The bill creates the following crimes related to unlawful immigration and outlines penalties for the offenses: Willfully failing to complete or carry an alien registration document, but the offense does not apply to a person who maintains authorization from the federal government to remain in the United States; Stopping and blocking traffic to hire and pick up passengers for work at a different location or entering a vehicle for the purpose of being transported to work at a different location; Knowingly applying for, soliciting, or performing work in Colorado if the person committing the action is an unlawful alien; If a person knows or recklessly disregards that an alien has come to, entered, or remains in the United States in violation of law: 1) transporting or moving the alien in Colorado, in furtherance of the alien's unlawful presence, in a means of transportation; or 2) concealing, harboring, or shielding the alien from detection in any place in Colorado; and If a person has committed another offense, encouraging or inducing an alien to enter the state when the actor knows or recklessly disregards the fact that the alien's entrance will be in violation of law. A law enforcement official or agency must impound or immobilize a person's vehicle if it is used to unlawfully transport, move, conceal, harbor, or shield an unlawful alien, subject to exemptions for child protective services workers and emergency responders. A law enforcement officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed an offense that makes the person removable from the United States. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly finds that federal law: (a) Prohibits an unauthorized alien from entering the United States illegally (8 U.S.C. secs. 1181, 1321, and 1323); (b) Prohibits the employment of unauthorized aliens (8 U.S.C. sec. 1324a); (c) Prohibits certain aliens from receiving public benefits (8 U.S.C. secs. 1611, 1621, and 1623); and (d) Gives the federal government the authority to remove unauthorized aliens who are found illegally in the United States (8 U.S.C. secs. 1226, 1227, and 1231). (2) In addition to federal law prohibitions, the general assembly finds that Colorado law includes the following provisions: (a) A state agency or political subdivision of the state is prohibited from entering into or renewing a public contract for services with a contractor that knowingly employs or contracts with an illegal alien to perform work under the contract (Article 17.5 of title 8, Colorado Revised Statutes); (b) Under certain provisions, a person must be a United States citizen to qualify for in-state tuition at a Colorado institution of higher education (Section 23-7-110, Colorado Revised Statutes); (c) A licensing authority must deny certain professional licenses upon the determination that the applicant is unlawfully present in the United States (Section 24-34-107, Colorado Revised Statutes); (d) A person seeking certain public benefits must present proof of lawful presence in the United States (Article 76.5 of title 24, Colorado Revised Statutes); and (e) A peace officer who arrests a person who is believed to be illegally present in the United States must report that person to the federal immigration and customs enforcement office (Article 29 of title 29, Colorado Revised Statutes). (3) The general assembly also finds that: (a) Governor Ritter signed a memorandum of agreement with the United States department of homeland security's immigration and customs enforcement agency to participate in the secure communities initiative, which will assist local law enforcement in its efforts to combat illegal immigration; (b) Although federal law prohibits illegally present persons in the United States and their employment, insufficient resources exist at the federal, state, and local levels to address the problem; (c) By working to reduce the number of illegal immigrants in Colorado, there will be more jobs for citizens and legally present immigrants; and (d) Uniform, fair, and equitable enforcement of federal and state immigration laws will benefit all citizens of Colorado and help revitalize the Colorado economy and offer increased job opportunities for citizens and legally present immigrants. (4) Therefore, the general assembly declares that Colorado must bolster its laws regarding the presence of illegal aliens in the state in order to combat the problem of illegal immigration in the United States. SECTION 2. 8-2-122 (3) and (4), Colorado Revised Statutes, are amended to read: 8-2-122. Employment verification requirements - audits - fine for fraudulent documents - cash fund created - definitions. (3) Upon the request of the director, an employer shall submit documentation to the director that demonstrates that the employer is in compliance with the employment verification requirements specified in 8 U.S.C. sec. 1324a (b) and documentation that the employer has complied with the requirements of subsection (2) of this section within ten days after the request. The director or the director's designee may conduct random audits of employers in Colorado in order to obtain the documentation. When the director has reason to believe that an employer has not complied with the employment verification and examination requirements, the director shall request the employer to submit the documentation. (4) (a) An employer who with reckless disregard, fails to submit the documentation required by this section, or who, with reckless disregard, submits false or fraudulent documentation to comply with the provisions of subsection (2) or (3) of this section shall be subject to a fine of not more than five thousand dollars for the first offense and not more than twenty-five thousand dollars for the second and any subsequent offense five hundred dollars per employee per day that the employee worked for the employer; except that an employer who makes a good faith effort to comply with subsections (2) and (3) of this section within the time frames specified in those subsections shall be immune from a fine pursuant to this section. (b) The moneys collected pursuant to this subsection (4) shall be deposited in the employment verification cash fund, which is hereby created in the state treasury. The moneys, including interest earned, in the fund shall be appropriated to the department of labor and employment for the purpose of implementing, administering, and enforcing this section. The moneys in the fund shall remain in the fund and not revert to the general fund or any other fund at the end of any fiscal year. SECTION 3. Article 2.5 of title 16, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PART to read: PART 3 COOPERATION AND ASSISTANCE IN ENFORCEMENT OF IMMIGRATION LAWS 16-2.5-301. Cooperation and assistance in enforcement of immigration laws - indemnification - fund. (1) An official or agency of this state or of a county, city, city and county, town, or other political subdivision of this state may not limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law. (2) (a) When practicable, a law enforcement official or agency of this state or of a county, city, city and county, town, or other political subdivision of this state shall make a reasonable attempt to determine the immigration status of a person with whom the official or agency has made lawful contact if the official or agency has a reasonable suspicion to believe that the person contacted is unlawfully present in the United States and if the determination would not hinder or obstruct an investigation. The official or agency shall make such immigration determination, which shall be verified with the federal government pursuant to 8 U.S.C. sec. 1373(c), before the person is released. (b) A law enforcement official or agency of this state may not consider solely race, color, or national origin in implementing the requirements of this subsection (2), except to the extent permitted by the United States or Colorado constitution. (c) A person is presumed to be lawfully present in the United States if the person provides to the law enforcement official or agency any of the following: (I) A valid Colorado driver's license; (II) A valid Colorado identification card; (III) A valid tribal enrollment card or other form of tribal identification; or (IV) Any valid United States federal-, state-, or local-government-issued identification, if the issuing entity requires proof of legal presence in the United States as a condition of issuance. (3) If a person who is unlawfully present in the United States is convicted of a violation of state or local law, upon discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the imprisoning authority or court shall immediately notify the United States immigration and customs enforcement or the United States customs and border protection of the illegally immigrant's release. (4) Notwithstanding any other provision of law to the contrary, a law enforcement agency or law enforcement officer may securely transport a person whom the agency has verified is unlawfully present in the United States and who is in the agency's custody to a federal facility in this state or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization before securely transporting a person who is unlawfully present in the United States to a point of transfer that is outside of this state. (5) Except as provided in federal law, officials or agencies of this state or of counties, cities, city and counties, towns, and other political subdivisions of this state may not restrict sending, receiving, or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other federal, state, or local governmental entity for the following official purposes: (a) Determining eligibility for any public benefit, service, or license provided by any federal law or any law of this state or its political subdivisions; (b) Verifying any claim of residence or domicile if determination of residence or domicile is required under the any federal law or any law of this state or its political subdivisions or a judicial order issued pursuant to a civil or criminal proceeding in this state; (c) Determining whether the person is in compliance with the federal registration laws prescribed by Title II, chapter 7 of the federal "Immigration and Nationality Act", 8 U.S.C. sec. 1481(a)(5), if the person is an illegally present; or (d) Pursuant to 8 U.S.C. sec. 1373 and 8 U.S.C. sec. 1644. (6) This section does not implement, authorize, or establish, and shall not be construed to implement, authorize, or establish, the federal "Real ID Act of 2005", Pub.L. 109-13, including the use of a radio frequency identification chip. (7) This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons, and respecting the privileges and immunities of United States citizens. (8) All moneys collected pursuant to section 18-4-504.3 (5), C.R.S., shall be transmitted to the state treasurer, who shall credit the same to the immigration enforcement mission fund, which fund is hereby created and referred to in this section as the "fund". The moneys in the fund are continuously appropriated to the department of public safety for the direct and indirect costs associated with implementing this immigration enforcement and to reimburse local governments for county jail costs relating to unlawful immigration. Any moneys in the fund not expended for the purpose of this section may be invested by the state treasurer as provided by law. All interest and income derived from the investment and deposit of moneys in the fund shall be credited to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year shall remain in the fund and shall not be credited or transferred to the general fund or another fund. SECTION 4. Part 5 of article 4 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 18-4-504.3. Willful failure to complete or carry an alien registration document - assessment - exception - authenticated records - classification. (1) In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person violates 8 U.S.C. sec. 1304(e) or 8 U.S.C. sec. 1306(a). (2) In the enforcement of this section, person's immigration status may be determined by: (a) A law enforcement officer who is authorized by the federal government to verify or ascertain an person's immigration status; or (b) The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 U.S.C. sec. 1373(c). (3) A violation of this section is a class 1 misdemeanor; except that a violation of this section is: (a) A class 3 felony if the person violates this section while in possession of any of the following: (I) A controlled substance as defined in section 18-18-102 (5); (II) Immediate precursors that are used in the manufacturing of methamphetamine in violation of section 18-18-412.5; (III) A deadly weapon or a dangerous or illegal weapon as defined in section 18-12-102 (1) and (2); (IV) Property that is used for the purpose of committing an act of anarchy or sedition in violation of part 2 of article 11 of this title; (b) A class 4 felony if the person either: (I) Is convicted of a second or subsequent violation of this section; or (II) Within five years before the violation, has been removed from the United States pursuant to 8 U.S.C. sec. 1229(a) or has accepted a voluntary removal from the United States pursuant to 8 U.S.C. sec. 1229(c). (4) A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, commutation of sentence, or release from confinement on any basis until the sentence imposed by the court has been served or the person is eligible for release. (5) (a) In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs and an additional assessment in the following amounts: (I) For a first violation, a minimum of five hundred dollars; and (II) For a second or subsequent violation, a minimum of one thousand dollars. (b) A court shall collect the assessments prescribed in this subsection (5) and remit the assessments to the state treasurer, who shall establish a special subaccount for the moneys in the immigration enforcement mission fund. Moneys in the special subaccount are subject to annual appropriation by the general assembly for distribution for gang and immigration enforcement and for county jail reimbursement costs relating to unlawful immigration. (6) This section does not apply to a person who maintains authorization from the federal government to remain in the United States. (7) Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record. SECTION 5. 18-13-128, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 18-13-128. Smuggling of humans. (5) Notwithstanding any other provision of law to the contrary, in the enforcement of this section, a peace officer may 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. SECTION 6. Part 1 of article 9 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SECTIONS to read: 18-9-107.5. Unlawful stopping to hire and pick up passengers for work - unlawful application, solicitation, or employment - classification - definitions. (1) An occupant of a motor vehicle that is stopped on a street, roadway, or highway shall not attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. (2) A person shall not enter a motor vehicle that is stopped on a street, roadway, or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. (3) An unauthorized person who is unlawfully present in the United States shall not knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in this state. (4) A violation of this section is a class 1 misdemeanor. (5) For the purposes of this section: (a) "Solicit" means verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed. (b) "Unauthorized person" means an person who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. sec. 1324a(h)(3). 18-9-107.7. Unlawful transporting, moving, concealing, harboring, or shielding of unlawful persons - vehicle impoundment - exception - classification. (1) A person shall not: (a) Transport or move or attempt to transport or move an unlawful person in this state, in furtherance of the unlawful presence of the unlawful person in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the unlawful person has come to, has entered, or remains in the United States in violation of law; (b) Conceal, harbor, or shield or attempt to conceal, harbor, or shield an unlawful person from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the unlawful person has come to, has entered, or remains in the United States in violation of law; or (c) Encourage or induce an unlawful person to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering, or residing in this state is or will be in violation of law. (2) A person who violates this section is guilty of a class 1 misdemeanor and is subject to a fine of at least one thousand dollars; except that a violation of this section that involves ten or more unauthorized persons is a class 6 felony and the person is subject to a fine of at least one thousand dollars for each unauthorized person who is involved. (3) A means of transportation that is used in the commission of a violation of this section is subject to mandatory vehicle immobilization or impoundment. (4) This section does not apply to a child protective services worker acting in the worker's official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant, or an emergency medical technician and who is transporting or moving an unauthorized person in this state. SECTION 7. 16-3-102 (1) (c), Colorado Revised Statutes, is amended, and the said 16-3-102 (1) is further amended BY THE ADDITION OF A NEW PARAGRAPH, to read: 16-3-102. Arrest by peace officer. (1) A peace officer may arrest a person when: (c) He or she has probable cause to believe that an offense was committed and has probable cause to believe that the offense was committed by the person to be arrested; or (d) The person to be arrested has committed any public offense that makes the person removable from the United States. SECTION 8. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.