The Georgia Immigration Enforcement Review Board
by Charles Kuck
Section 20, of Georgia's HB 87, created the "Immigration Enforcement Review Board" (IERB) The creation of the IERB was a surprise addition to HB 87 in its last substitution in the House, and never had a public hearing. There is no legislative history about the IERB's purpose, although it is now clear from Rep. Matt Ramsey's statements to the press that it was the Association of City and County Governments (ACCG) that pushed for the IERB, in lieu of the even crazier idea of letting private citizens sue state officials.
The PURPOSE of the IERB
The primary purpose of the IERB, which is now filled by seven white men with virtually no experience in immigration law and is attached to the Department of Audits and Accounting, is to:
(2) take such remedial action deemed appropriate in response to complaints filed with the Board, including holding hearings and considering evidence;
(3) make and adopt rules and regulation consistent with the provisions of this Code section; and
(4) subpoena relevant documents and witnesses and to place witnesses under oath for the provision of testimony in matters before the board.
All of these duties are appropriately vague considering the actual authority of the Board. Here is what the Board has authority to do:
Investigate and review any complaint with respect to all action of a public agency or employee alleged to have violated or failed to properly enforce the provisions of Code Section 13-10-91 (State E-Verify usage), 36-80-23 (Sanctuary Policies), or 50-36-1 (Public Benefits) with which such public agency or employee was required to comply.
Who can FILE Complaints with the IERB
Only registered voters can bring complaints to the IERB. This little nugget may violate not only the due process clause of the state constitution, and possibly the Voting Rights Act, but all the federal Constitution's right of citizens (not just registered voters) to seek redress and petition the government. This provision has NOT been challenged in Court, but certainly will be at some point in the future.
What Can The IERB DO and to WHOM Can it DO IT?
What is remarkable with the IERB can ONLY deal with the three limited areas of Georgia law (state entity use of E-Verfiy, state entity sanctuary policies, and state entity use of the SAVE system) as it pertains to public employees. No private employers, employees, or individuals are subject to investigation by the IERB.
Further, and more problematic, the IERB does NOT have to act as a Board. One member can carry out ALL of its duties AND impose sanctions!! The sanctions that the IERB can levy include revocation of qualified local government status, loss of state appropriated funds, or a monetary fine of up to $5,000. The standard of proof used for a "conviction" by this Board is a preponderance of the evidence. The Attorney General is the club used by this Board to enforce its decisions and sanctions in Court, should the employee not comply.
What the IERB is NOT
The IERB is NOT a witch hunting panel of anti-immigrants going after private citizens and businesses who violate HB 87. So, regular folks (e.g., non-goverment employees) have not need to fear (yet). BUT, if you are a government employee--watch out!
What the IERB IS
The IERB is a RADICAL privatization of government power, and the constitutionality of this provision is suspect. After all we are talking about giving to a Board of private citizens the power to take away the "city" status of a municipality. Frankly, it is insane that this provision is in this anti-immigration bill. It has nothing to do with immigration, and everything to do with pleasing a particular constituency. Ultimately, the courts will decide the constitutionality of this Section.
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.