An Open Letter To Georgia House Speaker David Ralston On HB 87
by Charles Kuck
Dear Speaker Ralston:
I understand that the Georgia Legislature believes it must do “something” on immigration in this session. But “something” need not be legislation that destroys Georgia’s image as a welcoming state, that impedes our state’s ability to attract foreign investment, increases the burden on local governments, and which will certainly deal a severe blow to international tourism. In fact, even in light of recent changes to this bill by the sponsors, the bill still will result in local and likely state tax increases on every resident of Georgia. It creates increased government regulation, still creates unfunded mandates for every local government, creates unnecessary crimes with extraordinary punishments, and results in little, if any real change on the issue of illegal immigration.
HB 87 is premised on the oft stated notion that the “Federal government is doing nothing on immigration.” This statement is false. The federal government is doing more than it has EVER done in enforcing the laws on undocumented immigration. The Obama Administration is spending literally billions of taxpayer dollars building fences, hiring border patrol agents, detaining undocumented immigrants and actually deported almost 400,000 people last year—a record. The Obama administration has extended Secure Communities to virtually every part of Georgia, with plans to have Secure Communities in place in every Georgia county within the next 18 months. The Obama administration is rapidly expanding its employer sanctions program, with dozens of employers under investigation in Georgia right now over their immigration related hiring practices. How is this “doing nothing?” Frankly, saying that the Federal government is doing nothing on illegal immigration is an insult to the men and women serving our country working at Immigration and Customs Enforcements (ICE). HB 87 also DOES NOT create any greater degree of enforcement than already exists under current state and federal law. By September 30, 2012, everyone arrested today in Georgia will be run through the Secure Communities program, and if they are unlawfully present in the United States they will be held for ICE (Immigration and Customs Enforcement) to pick up within 48 hours. SAVE is already used by every state and local government agency to screen for benefits. E-Verify is already used by every county and virtually every local government in Georgia. All of these were mandated previously under SB 529. And all of these laws have been followed. So, if this bill does NOT reform immigration, does NOT effectively increase enforcement, and does NOT make Georgia safer, why is the legislature considering it without considering the details and impact of HB 87
The Impact of HB 87The apparent principle purpose of HB 87 is to make life so miserable for undocumented immigrants that they will leave Georgia. You can take nothing no other meaning from this bill. It is estimated that 450,000 people living in Georgia do not possess documents to prove that have legal status to be in the United States. Many of these people are husbands, wives, fathers, mothers, sons and daughters of U.S. citizens. Even having that relationship entitles someone in the United States without papers to no immigration benefits. If only one-half of them were married and had one child, that amounts to more than one million people. What if one million people left Georgia today? What would that do to our state’s economy, tax base, and society? While most illegal immigrants live and work under the radar in Georgia, they have created an indelible economic footprint here, according to a number of experts:
Generally speaking, there are parts of HB 87 that are constitutional and which no court, state or federal will stop from implementation. There are also still at least two provisions of HB 87 which will never be enforced, and which will be struck down as unconstitutional before they go into effect, for the same reasons that similar provisions in the Arizona bill were struck down—Federal Preemption and Constitutional violations.
TITLE IIThe recent substitute to the bill not only changed the section numbers, but added “Titles” to the sections of the bill. Title II of the bill is “Private Cause of Action for the Enforcement of Provisions to Prevent Illegal Immigration.” I have some bad news for the sponsor. Nothing in Title II prevents illegal immigration! “You can fool some of the people all of the time . . . . . .”
Section 2—Private Lawsuits Against Local GovernmentsSection 2 of HB 87 permits any legal resident of the state to sue any county, city, town or village which does not enroll in and USE E-verify for all of its new employees. E-Verify is the voluntary federal employment verification system with a 96% accuracy rate. Under current Georgia law every local government is required to be enrolled in and use E-Verify. I believe that now, every Georgia County is enrolled, and virtually every local government. What this section does is open up the courts to private individuals, over 21, to sue any county, city, town or village, which is not using E-Verify, or which the person suspects is not using E-Verify. If the litigant is successful, they are able to recover all their attorneys’ fees, and the polity will have to pay the local law enforcement folks a fine to be used to train its officers in immigration law enforcement. The sponsor added a provision in the substitute bill the requires potential litigants to give the local government 30 days’ notice of the purported violation occurring within the previous six months, and then give the local government 30 days to correct the problem and get back to the litigant. BUT, the litigant can still sue. The local government can then hire attorneys to file a stay of discovery and a motion to dismiss. This additional notice was supposedly added to protect local government from frivolous lawsuits. It fails to do so. The first major issue with Section 2 (and similar provisions in Section 4 and 5), is the odd provision that the person suing must be 21. That violates current state law, and will be struck down immediately by any court. The second obvious issue with this provision is that a group of anti-immigration activists will begin suing every polity in the state. The lawyers can take these cases on contingency, because when successful, they are going to get paid by the polity. Does this sound like a recipe for a fiscal nightmare for local governments? The thought that the notice requirements will stop counties from expending valuable resources in court defending itself is a fallacy. They will still have to hire attorneys to defend themselves, and only a select few of the largest counties have full time attorneys on staff to handle such lawsuits. The REAL purpose of this section is to scare local governments into enrolling in and using E-Verify, under the threat of litigation, thus making each polity have an employee identified under E-Verify as an administrator, receiving training and spending our tax dollars to do something the county is already doing as part of the Form I-9 verification process. Finally, the third major issue with Section 2 is that this law is also being pursued without there being ANY evidence that any county, city, town or village in Georgia has hired someone who is undocumented, or is not NOW currently enrolled in E-Verify! Not a single fact has been produced by the committee in any public hearing justifying this section.
Section 3 – The Attorney General Can Bring Actions Against Local Government for violations of E-Verify RuleFrankly, this section is solid. I do not know of anyone who would oppose the Attorney General doing the job he is elected to do, making sure Georgia’s laws are obeyed. By keeping Section 2 in this bill, when Section 3 is there, is like saying we do not trust the Attorney General to do his job. Delete Section 2 from this bill, and leave Section 3 in. You solve the problems inherent in Section 2, and still accomplish the purpose.
Section 4 – So-Called “Sanctuary Cities” and Private LawsuitsSimilar to Section 2, Section 4 of HB 87 allows private lawsuits against any local government for violation of Georgia’s already existing anti-sanctuary law. Obviously, all of the problems associated with allowing private rights of action remain true again in Section 4. But, there are additional facts (or non-facts) to consider. First, there is no local government in Georgia with such a sanctuary policy. Second, there was no evidence presented by or to the committee in public hearings that there is such a policy anywhere. Simply put, there is NO factual justification for the creation of a private right of action against local governments. If you believe it is so important to have some enforcement mechanism in place, why not replicate Section 4 here, and give the Attorney General the authority to enforce violations? If you allow this continued private right of action, this will result in taxpayer dollars being spent on unnecessary litigation. That, by necessity, will result in increased taxes or reduced services.
Section 5 —SAVE Usage and Private LawsuitsSection 5 of HB 87 again creates the threat of litigation to any local government in Georgia that does not use the USCIS-run SAVE system to verify immigration status of U.S. citizens prior to giving any state or local services. SAVE is an inherently unreliable database which causes delays of more than 30 days in verification for more than 10% of the users of this system, depriving folks of entitled services, driver’s licenses, and business permits. That is bad enough, but you also have to understand, that there was NO evidence presented at the committee hearings by anyone of actual use of state services by undocumented immigrants. There was plenty of innuendo, but no facts. You and I both know that we are all entitled to our own opinions, but not our own facts. Since 1997, it has been illegal in Georgia (and the United States) for anyone who is not a U.S. permanent resident or U.S. citizen to receive any public benefit (this does not include federal mandated rights, such as emergency medical care or K-12 education). Without repeating everything that was said previously, this means your taxes are going up, or your services are going down. And, note that there is no down side to being wrong about the facts when bringing these lawsuits. This is NOT a loser pays statute. The plaintiff here can just sue and sue and sue with impunity.
Section 6—The Attorney General Can Force Compliance with SAVEFrankly, this section, which is similar to Section 3, is likewise good. The Attorney General should have to power to ensure that local governments are complying with state law and mandates. By keeping Section 5 in this bill, when Section 6 is there, is like saying we do not trust the Attorney General to do his job. Delete Section 5 from this bill, and leave Section 6 in. You solve the problems inherent in Section 5, and still accomplish the purpose. That completes Title II of the HB 87. You can shorten this bill by three sections, authorize the Attorney General to enforce these mandates, and still accomplish the purpose of the bill. Why would you do it any other way?
TITLE IIITitle III of the bill is entitled “CRIMINAL OFFENSES.” Title III contains several new crimes, with flawed definitions, which will make criminals out of law abiding citizens, will criminalize the efforts of Churches to reach out to minority communities, and could very well result in filling our state prisons with people who simply want to feed their families. Is any of this good public policy and do any of these laws really have any effect on undocumented immigration?
Sections 7, 8 and 9 – Seeking Employment With Untrue InformationSection 7 creates the crime of “Aggravated Identity Fraud” by making it illegal to use fake documents, even of an invented person, to obtain employment in Georgia. There is already a federal crime in place for using fraudulent information to complete a Form I-9. But the law is specific, detailed, and easy to understand. There are also, obviously, laws already on the books prohibiting and criminalizing identify theft. So, the only real change with this law is that of making a private contract (employment) illegal, if the person does not use their real name. This new crime does NOT require the use of any fraudulent documents, only information. Potentially, this law is written so broadly, that it will criminalize married women using their maiden names, criminalize people using their middle, but not first names, etc., in order to secure employment. By criminalizing employment the state legislature takes a bold step into a new territory. Further, since this is a criminal statute, it can only apply prospectively, and thus will only impact future hires with companies. It does nothing to effect folks who are already employed using made up identities. I also question how the State will find out about the violations of this crime. Is the state expecting employers to notify the county attorney when they suspect someone is using a false identity? Is the county attorney prepared to investigate and prosecute these cases? How much will this cost? Section 8 makes this new crime created in Section a FELONY, punishable by at least one year and as much as 15 years in state prison, with a fine of $250,000! Think about it. Are we so wealthy as a state that we can afford to potentially jail 450,000 people for working with fake documents? Obviously, the sponsor believes there will be a deterrent effect as a result of criminalizing this behavior. But think about it—use fake documents to get a job to feed my family, or don’t feed my kids? Which would you do? I do believe that anyone caught stealing someone’s identity needs to be punished, but criminalizing employment? This is not good public policy. Section 9 of HB 87 includes this new crime within the exceptions provision of OCGA 16-9-128, which provide good faith exceptions, as an affirmative defense to the crime, including the “good faith use of identifying information with the permission of the affected person.” Does that mean that if I have someone’s permission to use their identity I cannot be convicted under this statute? The provision seems out of step with the actual intent of the statute and nonsensical when compared to the statutory structure into which this new crime is created.
The second part Section 10 created the crime of “harboring.” To “harbor” someone is to engage in “any conduct that tends to substantially help an illegal alien to remain in the United States in violation of federal law.” Once again, there is no definition of “substantially helps,” which likely makes this new code section constitutionally defective. This law is so broad that it could EASILY be interpreted to mean that anyone renting property to someone who is undocumented goes to jail and pays a large fine. It includes anyone who helps a fellow church member out with a meal while failing to turn their blinker on while bringing it to that person’s house. And if I give advice to a client, I am could also be charged with harboring. While, I have no doubt this provision will be struck down by the courts, the better question to ask is, does this crime discourage behavior, or does it simply criminalize Good Samaritans? There is also not provision in this section to allow for the actual knowledge that the person is undocumented. Of concern to me as immigration attorney is the provision in the harboring sections that exempts only three classes of people from its criminal effects. First, it exempts anyone providing services to infants, children, or victims of crimes. I do not believe that this exemption is anywhere broad enough to protect the people running battered woman’s shelters in Georgia. Who is a victim of a crime? Does a crime have to be reported? Second, it exempts a person providing emergency medical services. That means anyone providing any other type of medical services is NOT protected. Doctors, nurses, therapists, etc., are all subject to criminal charges! And, third, the exemption for criminal defense attorneys. There is no exception for immigration attorneys, or attorneys practicing workers compensation, accident law, etc. That means people who are undocumented who come to an attorney seeking help, even help to become documented under the law, are putting their attorneys at risk of arrest! Obviously, this provision is in direct violation of a person’s rights in the United States, regardless of immigration status, and will be struck down. But, this provision is evidence of the lack of foresight and consideration that went into drafting this bill. Finally Section 10 of HB 87 creates a third crime, that of “inducing” a person who is undocumented, to enter Georgia. This means that anyone helping a relative or a family member move to Georgia can be prosecuted. For example, a U.S. citizen is married a lawful permanent resident. That resident has a brother who is undocumented. The U.S. Citizen invites the brother to live with them in Georgia for a short time. That U.S. citizen is going to jail. This provision does NOT criminalize human traffickers. Georgia already has provisions for that. This section criminalizes families. That is something we should never do. In summary, Section 10, when challenged, will be at least partially unconstitutional. It will result in housing discrimination. It will result in series of prosecutions of lawyers. It will result in profiling and racial discrimination. It will result in churches and their leaders brought before the criminal courts. It will result in lawyers being prosecuted. The legislature here is directly telling Georgia businesses that they not only must do the already mandated Forms I-9 for each short or long term employee, but also they cannot necessarily believe the documents presented. Do you not believe that a Georgia law enforcement officer or prosecutor will not say, “how could you have believed that THESE documents were real?” Section 10 will be very bad for business in Georgia. It will be very bad for property owners in Georgia. And it will be very bad for anyone who knows or is related to an undocumented immigrant. Finally, there appears to be NO exemption for attorneys, other than criminal defense attorneys, such that someone who consults an attorney about fixing their immigration status may cause that attorney to be subject to fine or imprisonment for harboring!
TITLE IVTitle IV of HB 87 is entitled “Law Enforcement Officers and Enforcement of Immigration Law.” This first Section in this title remains preempted by Federal law and is clearly unconstitutional. The other provisions in Title IV are effectively fluff, and do nothing to change the laws of Georgia as they impact illegal immigration. There is no legitimate reason to have any of the section become law.
Section 11—Unconstitutional Police Stops and Reason to BelieveSection 11 deals specifically with the provision of the Arizona law that the Federal Judge found the most problematic—empowering law enforcement to investigate the immigration status of a person who they believe is undocumented. The law tries to change the language of the Arizona statute by saying the law enforcement officer must have stopped the “criminal suspect” and have “probable cause” to believe the person committed the crime before giving them carte blanche to then seek to verify the suspect’s immigration status if the suspect cannot produce one of the documents listed in the OCGA 50-36-2, or a driver’s license or state id card, or proof of legal status (of which there are dozens of varieties), or federally issued id documents, or “other information” to independently identify the suspect. The sponsor of the bill maintains that by taking out “reasonable cause” to believe a person is undocumented that he has cured the constitutional defect in this legislation. The contrary, he has made the law even more unconstitutional, because he has removed what could have been a basis for determining legitimate immigration inquiries, and turned it into a completely arbitrary process. And, while he has also exempted individual police officer from liability, he has not exempted county or local governments, who will be the subject of profiling lawsuits for the actions of their officers under this law. I would not want to be a police officer who has to enforce this law, because he either has to ask EVERY DRIVER he stops about their immigration status, regardless of what status the person “appears” to have, OR, he asks none of them. Any action in between will be the subject of a lawsuit. More importantly, this particular part of the Arizona law was struck down because it was PREEMPTED by federal law, in that it impermissibly burdened the federal immigration authorities, and thus could not be enforced. Nothing about this version of the law changes that analysis, and by passing this legislation, the Legislature would be setting the state up for a lawsuit to defend. A lawsuit it will lose. Further, this section EXPANDS the definition of criminal related stops to now include “traffic offenses” So, if you thought speeding was a simple traffic violation, think again. It is now a criminal offense in Georgia. And, what about passengers in vehicles, or other occupants of a house, or other people at the business? This provision has long reaching and very severe implications for anyone who is a friend of the Constitution.
Section 12--287(g) EverywhereSection 12 of HB 87 makes it mandatory for every state agency to enroll in the federal government’s 287(g) program. In case you do not remember SB 529, enrolling in 287(g) is already a state mandate, as permitted by the federal government. Unfortunately, the federal 287(g) program places a number of restrictions on the entering law enforcement agency, including staffing, jail conditions and training that most applicants cannot readily meet. And which costs a counties a great deal of money to meet. Further, the federal government is only very slowly adding 287(g) agencies, instead focusing its efforts on expanding its Secure Communities initiative. The practical difference between the two programs is that 287(g) programs trains local law enforcement in immigration enforcement issues and effectively deputizes the officers to act in place of ICE in the context of immigration holds and bonds, while Secure Communities allows for the local law enforcement officials to verify immigration status, and then hold individuals subject to removal for 48 hours for ICE to pick, without training or deputizing them. What Section 12 does, however, is once again increase the COST to the local government, without analyzing whether such a program is either necessary, effective, or, frankly, affordable. In reality, other than increasing costs, the section does nothing to change the current state of the law.
Section 13—Peace Office Immigration TrainingSection 13 of HB 87, requires the State Corrections Commissioner to send at least 10 “peace officers” to be trained each year under 287(g), to be funded by the Homeland Security Appropriation Act, or other source of federal funding. This section is only effective if there is federal money. This appears to be a reverse unfunded mandate directed to the feds. The provision is meaningless, and can best be described as “fluff.”
Sections 14 and 15—Enroll in Secure Communities Or ElseSimilarly, Section 14 of HB 87 requires that the state provide incentives to local communities to enroll in Secure Communities, something that all 159 counties in Georgia will be enrolled in by September 2012, “subject to available funding.” Since there is NO AVAILABLE FUNDING, this section is completely meaningless! Section 15 of HB 87 requires that anyone detained in any state facility charged with any criminal offense, regardless of how long, be checked for immigration status. The provision is pure fluff in light of Secure Communities expansion. Again, there is no reason for these changes, as they make no effective change to current state law.
Section 16—Bribing Localities to Enroll in 287(g)Section 13 of HB 87 states that if a county can show they are making efforts to enroll in 287(g), the state will add 10% to the rate of reimbursement for the detention of state prisoners in county facilities. Well, this money is not growing on trees. As noted earlier, there are certain standard levels of detention and staffing that an agency will need to show to be eligible for 287(g) enrollment. To take advantage of this reimbursement increase, the counties will have to spend serious money to get in compliance with federal standards. There is no Fiscal Note attached to HB 87, but clearly, there is going to have to be a tax increase, or service reduction somewhere to pay for this. Or, the provision is completely ineffective, and thus has no reason to be passed into law!
Section 17—Business Killer—Mandatory E-Verify for All BusinessesSection 17 of HB 87 is the real killer provisions for businesses and local governments in Georgia. This section requires that a business, in order to obtain any necessary occupational tax certificate (which all Georgia business must have to do business), must present evidence of E-Verify enrollment. The federal voluntary program of E-Verify is going to be mandatory in Georgia for all employers of more than 5 people by July 1, 2012. The question is, will businesses comply? The compliance scheme cooked up by the bill’s sponsor is to make the local governments the compliance agents, without assisting them financially in the compliance efforts. Businesses will have to complete compliance affidavits each year saying they intend to use E-Verify. Of course, there is nothing that stops the employer from signing the affidavit, withdrawing on 30 days’ notice from E-Verify, and then reenrolling in E-Verify the following year to obtain the business license. This discriminatory law also puts employers on an uneven playing field if they have more than 5 employees, or if all their employees are “independent contractors.” In fact, this provision is such a gigantic loophole that only those employers who would have voluntarily complied with E-Verify anyway, will actually be enrolling in it under this law. Keep in mind that this same law became mandatory in Arizona more than four years ago, and to date only 35% of Arizona employers are enrolled. The reason is that that there was no effective enforcement of the provision. Georgia is now using local governments as the enforcers of this law, without providing them the means, funds, or training to do so. There is also a farcical provision in Section 17 that says that the State Department of Audits and Accounts will annually conduct an audit of no fewer than 20 percent of such reporting agencies, “SUBJECT TO FUNDING.” So, knowing that this bill provides no funding for this, and that there is Fiscal Note to make us aware of how much it would cost to do this, this provision is without merit. As an alternative, why not have E-Verify as the goal for all Georgia employers by offering an incentive to enroll in E-Verify. You can offer preferential placement for government benefits, perhaps a lower one year tax rate, or some other type benefit. I would guarantee you would have greater compliance than the stick this section tries to yield.
Sections 18 and 19—Photo Id’s Now Needed for Everything!Section 18 of HB 87 requires that anyone seeking a public benefit present a secure and verifiable document used by the federal government or a state government, with a photograph, showing they are a US citizen, or a qualified alien. Section 19 is known as the “Secure and Verifiable Identity Document Act.” Section 19 basically wants to eliminate the use of foreign ID documents for state benefits. What the sponsors of this bill never produced was evidence that such foreign id documents are in fact used for state benefit purposes! As of today, no state agency accepts any foreign id document, other than a foreign passport with evidence of lawful status, for any state benefit. The problems with this provision are numerous, and start from the fact that a minor has no photo id to get a benefit, to the fact that someone with a “valid” nonimmigrant status could actually be out of status for a myriad of reasons, and still qualify under this statute. The real purpose of this section is to exclude the use of the “Matricula Consular,” a document sometimes issued by Latin American governments as a photo ID. If that is the purpose of this act, why not just saw so, and not make a crime punishing only government workers who accidently accept such a document for identification purposes? The rest of HB 87 deals with severability and enforceability, which are important since the bill as written has several provisions that will be unenforceable! Mr. Speaker, the reality of this bill is hard to ignore. It is going to cause taxes to go up, services to go down, increase regulation, and hurt our economy and image, all without any evidence that any provision of this law will actually solve a problem in Georgia. I strongly urge to pull HB 87 from consideration. This bill is not the message that Georgia needs to be sending.
Very truly yours,
Charles H. Kuck
Charles Kuck is the Managing Partner of Kuck Immigration Partners LLC-The Immigration Law Firm, and oversees its nationwide immigration practice. His practice focuses on U.S. Immigration and Nationality Law and international migration matters. Mr. Kuck assists employers and employees with business and professional visas, labor certifications, immigrant visas, consular representation, and citizenship matters. Mr. Kuck also maintains an active Federal Court practice focusing on immigration issues.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.