First Extraordinary Session Sixty-fifth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 06B-2062.02 Jerry Barry HOUSE BILL 06S-1011 HOUSE SPONSORSHIP Penry, Harvey, Schultheis, and May M. SENATE SPONSORSHIP Mitchell, House Committees Senate Committees State, Veterans, & Military Affairs A BILL FOR AN ACT Concerning measures to discourage illegal immigration. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Section 1. Requires employers within Colorado to apply to participate in the federal basic employment verification pilot program ("program") by specified dates based upon the number of employees. Requires each employer, at the request of the department of labor and employment, to submit records concerning the employer's application to and participation in the program. Establishes penalties for failing to submit records or submitting false records. Sections 2 and 3. Establishes that a defendant's status as an illegal alien is an extraordinary aggravating circumstance for purposes of felony sentencing, but the possibility that a defendant may be deported is not a mitigating circumstance. Section 4. Directs the chief of the state patrol to negotiate a memorandum of understanding with the federal government for the training of peace officers to enforce federal immigration and customs laws. Section 5. Whenever a person is incarcerated in a county jail for a felony or an alcohol- or drug-related driving offense, requires the sheriff or designee to determine the citizenship or immigration status of the person. If the person is determined not to be lawfully present in the United States, requires the sheriff or designee to notify the federal department of homeland security. Section 6. Directs the department of regulatory agencies to prepare an analysis and evaluation of the regulation of immigration assistance services providers who are not licensed to practice law in Colorado. Section 7. If the voters approve a restriction on the provision of state and local public services, establishes requirements for state agencies and political subdivisions to enforce the restriction. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Part 1 of article 2 of title 8, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 8-2-122. Employee's work eligibility status - legislative declaration - definitions - federal basic employment verification pilot program - department of labor and employment - duties. (1) The general assembly hereby finds and determines that ensuring that Colorado employers employ only persons eligible to work within Colorado is an issue of statewide concern. The general assembly further finds that it is in the best interest of the state for all employers to verify the social security numbers and work eligibility status of prospective employees. Therefore, it is important that every employer in the state of Colorado participate in the extended federal basic employment verification pilot program for the purpose of verifying the work eligibility status of future employees. Further, it is important that each employer continue to apply to participate in the program until accepted. (2) As used in this section: (a) "Employer" means a person transacting business in Colorado who, at any time, employs another person to perform services of any nature and who has control of the payment of wages for such services or is the officer, agent, or employee of the person having control of the payment of wages; except that "employer" does not include the federal government, the state of Colorado, another state, or a political subdivision of Colorado or another state. (b) "Program" means the federal basic employment verification pilot program created pursuant to 8 U.S.C. sec. 1324a, as expanded to include all fifty states in the "Basic Pilot Program Extension and Expansion Act of 2003", P.L. No. 108-156. (3) (a) Each employer in the state of Colorado shall apply to participate in the program for the purpose of verifying the work eligibility status of each of the employer's employees by the following dates: (I) An employer with two hundred or more employees shall apply to participate in the program no later than January 1, 2007; (II) An employer with at least fifty employees but fewer than two hundred employees shall apply to participate in the program no later than January 1, 2008; and (III) An employer with fewer than fifty employees shall apply to participate in the program no later than January 1, 2009. (b) An employer shall submit an application to participate in the program each month until the employer is accepted into the program. An employer that is accepted into the program shall participate in the program to verify the employment status of each new employee within three days after the employee is hired. An employer shall retain records that show that the employer has applied to the program and, if accepted, show that the employer is an active participant in the program. (c) An employer that fails to apply for participation in the program pursuant to paragraph (a) of this subsection (3) shall be subject to a fine of not more than one thousand dollars for each thirty-day period for which an application for participation in the program has not been submitted to the federal department of homeland security. (d) Upon request of the director of the division of labor within the department of labor and employment, an employer shall submit the records required to be retained pursuant to paragraph (b) of this subsection (3). Upon receipt of a valid complaint that an employer has not complied with the requirements of this section, the director shall request the submission of the records. The director shall levy a fine against an employer pursuant to the following schedule for each calendar month the employer fails to submit the records or if the employer submits false or fraudulent records to the division of labor indicating that the employer has applied to participate in the program: Number of employees 1st offense 2nd offense 3rd offense 1-49 $1,000 $ 5,000 $10,000 50-99 $2,500 $ 7,500 $15,000 100 or more $5,000 $15,000 $20,000 (4) The employer shall immediately terminate the employment of an employee upon receipt of a final notice of nonconfirmation of work eligibility concerning the employee. (5) The department of labor and employment shall notify each employer of the requirements of this section and how to comply and shall make the information available on the department's website. SECTION 2. 18-1.3-401 (8) (a), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBPARAGRAPH to read: 18-1.3-401. Felonies classified - presumptive penalties. (8) (a) The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony: (VII) At the time of the commission of the felony, the defendant was not legally present in the United States. SECTION 3. 18-1.3-401, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 18-1.3-401. Felonies classified - presumptive penalties. (6.5) Notwithstanding the provisions of subsection (6) of this section, the court, in sentencing a defendant, shall not identify as a mitigating circumstance the possibility that the defendant may face deportation based upon the defendant's status as an alien. SECTION 4. Part 2 of article 33.5 of title 24, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 24-33.5-228. Memorandum of understanding - enforcement of federal immigration and customs law. (1) The chief is authorized and directed to negotiate the terms of a memorandum of understanding between the state and the federal department of justice or the federal department of homeland security concerning the enforcement of federal immigration and customs laws, detention and removal, and investigation in the state. The memorandum of understanding shall be signed on behalf of the state by the chief and the governor or as otherwise required by the appropriate federal department. (2) The chief shall designate appropriate peace officers to be trained pursuant to the memorandum of understanding executed pursuant to subsection (1) of this section. It is the intent of the general assembly that the training shall be funded pursuant to the federal "Department of Homeland Security Appropriations Act, 2006", P.L. No. 109-90, or any other source of federal funding. (3) A peace officer certified as trained in accordance with the memorandum of understanding executed pursuant to subsection (1) of this section is authorized to enforce federal immigration and customs laws while acting within the scope of his or her authorized duties. SECTION 5. Part 1 of article 26 of title 17, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 17-26-137. Lawful presence - inquiry - notification. (1) Whenever a person charged with a felony or with a violation of section 42-4-1701, C.R.S., is confined for any period in a jail, the sheriff, or the sheriff's designee, shall make a reasonable effort to determine the nationality of the person. If the person is a foreign national, the sheriff, or the sheriff's designee, shall make a reasonable effort to verify that the person has been lawfully admitted to the United States and, if lawfully admitted, that such lawful status has not expired. If verification of lawful status cannot be made from the documents in the possession of the person, verification shall be made within forty-eight hours after the start of the detention through a query to the law enforcement support center of the federal department of homeland security. If the person is determined not to be lawfully present in the United States, the sheriff, or the sheriff's designee, shall notify the federal department of homeland security. (2) Nothing in this section shall be construed to deny a person the right to bail or prohibit a person from being released from confinement when the person is otherwise eligible for release. SECTION 6. Part 1 of article 34 of title 24, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 24-34-104.2. Review of immigration assistance service - repeal. (1) Notwithstanding the provisions of section 24-34-104.1, on or before January 1, 2007, the department of regulatory agencies shall conduct an analysis and evaluation of the regulation of the immigration assistance services provided by persons not licensed to practice law in the state. The analysis and evaluation shall be based upon the criteria listed in section 24-34-104.1 (4) (b). (2) This section is repealed, effective July 1, 2007. SECTION 7. Title 24, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW ARTICLE to read: ARTICLE 76.5 Verification of Eligibility for Public Benefits 24-76.5-101. Verification of eligibility for public benefits. (1) To verify an applicant's lawful presence in the United States, an agency or a political subdivision that provides state or local public benefits, as defined in 8 U.S.C. sec. 1621, or federal public benefits, as defined in 8 U.S.C. sec. 1611, shall require each applicant eighteen years of age or older to affirm by affidavit that he or she is: (a) A United States citizen or legal permanent resident; or (b) A qualified alien or nonimmigrant under the federal "Immigration and Nationality Act", 8 U.S.C. sec. 1101 et seq., lawfully present in the United States. (2) For an applicant who has executed an affidavit affirming that he or she is an alien lawfully present in the United States, eligibility for benefits shall be verified through the systematic alien verification of entitlement program, referred to in this section as the "SAVE program", operated by the federal department of homeland security or a successor program designated by the federal department of homeland security. Until such eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this section. (3) A person who knowingly and willfully makes a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to subsection (1) of this section shall be guilty of a violation of section 18-8-503, C.R.S. (4) Agencies or political subdivisions of this state may adopt variations to the requirements of this section to improve efficiency or reduce delay in the verification process or to provide for adjudication of unique individual circumstances where the verification procedures in this section would impose unusual hardship on a legal resident of Colorado. (5) It shall be unlawful for an agency or a political subdivision of this state to provide state or local public benefits, as defined in 8 U.S.C. sec. 1621, or federal public benefits, as defined in 8 U.S.C. sec. 1611, in violation of this section. Each state agency or department that administers a program of state or local public benefits shall provide an annual report to the state, veterans, and military affairs committees of the senate and house of representatives, or any successor committees, with respect to its compliance with this section. (6) All errors and significant delays by the SAVE program shall be reported to the federal department of homeland security and to the secretary of state, both to monitor the SAVE program and its verification application errors and significant delays and report yearly on such errors and delays, to ensure that the application of the SAVE program does not wrongfully deny benefits to legal residents of Colorado. SECTION 8. Effective date. (1) This act shall take effect July 1, 2007; except that: (a) This section and sections 6 and 9 of this act shall take effect upon passage; and (b) Section 7 of this act shall take effect upon proclamation by the Governor of the vote following a statewide general election at which the voters approve a ballot measure that restricts state and local governments to providing public benefits only to persons lawfully present in the United States. SECTION 9. 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.