Second Regular Session H.C.R. 2060
COMMITTEE ON MILITARY AFFAIRS, PUBLIC SAFETY AND BORDER SECURITY
SENATE AMENDMENTS TO H.C.R. 2060
(Reference to House engrossed resolution)
Strike everything after the resolving clause and insert:
"1. Under the power of the referendum, as vested in the Legislature, the following measure, relating to responses to harms related to an unsecured border, is enacted to become valid as a law if approved by the voters and on proclamation of the Governor:
AN ACT
amending title 1, chapter 5, article 1, arizona revised statutes, by adding sections 1-503 and 1-504; amending title 13, chapter 34, arizona revised statutes, by adding section 13-3424; amending title 13, chapter 38, Arizona Revised Statutes, by adding article 35; amending title 23, chapter 2, article 2, arizona revised statutes, by adding section 23-215; amending section 41-1604, arizona revised statutes; relating to responses to harms related to an unsecured border.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Short title
This act may be cited as the "Secure the Border Act".
Sec. 2. Findings and declaration of purpose
A. The people of the State of Arizona find and declare as follows:
1. Due to weaknesses in immigration enforcement, a public safety crisis is occurring in Arizona, caused by transnational cartels engaging in rampant human trafficking and drug smuggling across this state's southern border.
2. From 2021 to 2023, United States Customs and Border Protection encountered nearly seven million immigrants illegally entering the United States through the southwest border. This number does not include an estimated two million "gotaways" who evaded encounters with border officials entirely.
3. From 2021 to 2023, United States Customs and Border Protection encountered two hundred eighty-two individuals on the terrorist watchlist illegally entering the southwest border between ports of entry. This is a 3033% increase over the prior three years when only nine such individuals were encountered.
4. From 2021 to 2023, the number of unaccompanied minors illegally crossing the southwest border skyrocketed to over four hundred thousand. Studies have shown that a majority of these children are victims of human trafficking.
5. From 2021 to 2023, the amount of fentanyl seized at the southwest border almost tripled, amounting to billions of doses of fentanyl. Illicit fentanyl, which is primarily produced in foreign nations and smuggled across the southwest border, is a synthetic opioid fifty times stronger than heroin. Even a single dose can be lethal. Synthetic opioids like fentanyl have now become the leading cause of overdose deaths in the United States. Transnational cartels fund their operations by trafficking this deadly drug across the southwest border.
6. In 2022, the Arizona Department of Health Services reported that illicit fentanyl is primarily responsible for an increasing number of overdose deaths in Arizona and that opioid overdose data demonstrates the continued urgency to address the drug overdose crisis in Arizona through comprehensive and collaborative approaches.
7. Many individuals who enter the United States unlawfully are enticed by smugglers with promises of economic incentives, including employment and taxpayer-funded benefits. Human smuggling is a gateway crime for additional offenses, including identity theft, document fraud and benefit fraud, harming Arizona taxpayers. Unchecked and unauthorized employment causes economic hardship to Arizona workers who may face unfair labor competition, wage suppression and reduced working conditions or opportunities.
8. A holistic approach is required to deter human trafficking and drug smuggling into Arizona by:
(a) Empowering law enforcement to protect the public.
(b) Reducing the incentives for illegal immigration.
(c) Punishing criminals who fuel the crisis at Arizona's southern border.
B. Based on these findings, the people of Arizona's purpose in adopting the Secure the Border Act includes protecting the public and responding to the harms related to an unsecured border by:
1. Empowering law enforcement to protect the public by arresting aliens who fail to enter Arizona's southern border through official ports of entry.
2. Reducing the incentive for illegal immigration by creating criminal offenses for a person to knowingly present false documents to obtain public benefits or to evade workplace eligibility detection through the e-verify program.
3. Strengthening Arizona's laws that require documentation of a person's lawful presence in the United States in order to receive public benefits by requiring agencies and political subdivisions of this state to use the systematic alien verification for entitlements program to verify benefit eligibility and validity of documents for people who are not citizens or nationals of the United States.
4. Increasing punishments for criminals who fuel the crisis at the southern border by selling fentanyl that causes the death of another person.
Sec. 3. Title 1, chapter 5, article 1, Arizona Revised Statutes, is amended by adding sections 1-503 and 1-504, to read:
1-503. Federal, state and local public benefits; false documents; violation; classification; definitions
A. Notwithstanding any other state law and to the extent allowed by federal law, any natural person who is not lawfully present in the united states shall not knowingly apply for a federal public benefit or a state or local public benefit by submitting a false document to any entity that administers the federal public benefit or the state or local public benefit.
B. any natural person who violates subsection A of this section is guilty of a class 6 felony.
C. For the purposes of this section:
1. "federal public benefit" has the same meaning prescribed in section 1-501.
2. "state or local public benefit" has the same meaning prescribed in section 1-502.
1-504. Document verification; applicants for public benefits; definitions
A. if a person who applies for any federal public benefit pursuant to section 1-501 or any state or local public benefit pursuant to section 1-502 is not a citizen or national of the United States, the agency or political subdivision of this state that administers the public benefit shall use the systematic alien verification for entitlements program that is maintained by the United States Citizenship and immigration services, or any successor program that is designated by the United States department of homeland security, in order to verify the validity of the documents provided by the applicant and to verify the applicant's eligibility for benefits.
B. This section does not relieve a person of any requirement to submit documentation that is required for any federal public benefit pursuant to section 1-501 or any state or local public benefit pursuant to section 1-502.
C. For the purposes of this section:
1. "Federal public benefit" has the same meaning prescribed in section 1-501.
2. "State or local public benefit" has the same meaning as prescribed in section 1-502.
Sec. 4. Title 13, chapter 34, Arizona Revised Statutes, is amended by adding section 13-3424, to read:
13-3424. Sale of lethal fentanyl; affirmative defense; classification
A. a person who is at least eighteen years of age commits sale of lethal fentanyl if the person knowingly sells fentanyl in violation of section 13-3408, subsection A, paragraph 7 and both of the following apply:
1. The person knows that the drug being sold contains fentanyl.
2. the fentanyl causes the death of another person.
B. It is an affirmative defense to a charge brought under this section that the fentanyl and its precursor chemicals were either manufactured in the United States or were lawfully imported into the United States.
C. Sale of lethal fentanyl is a class 2 felony, except that the presumptive, minimum and maximum sentences shall be increased by five years.
Sec. 5. Title 13, chapter 38, Arizona Revised Statutes, is amended by adding article 35, to read:
ARTICLE 35. ILLEGAL ENTRY INTO THIS STATE
13-4295. Definitions
IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. "ALIEN" MEANS A PERSON WHO IS NOT A CITIZEN OR NATIONAL OF THE UNITED STATES AS DESCRIBED IN 8 UNITED STATES CODE SECTION 1101.
2. "PORT OF ENTRY" MEANS A PORT OF ENTRY IN THE UNITED STATES AS DESCRIBED IN 19 CODE OF FEDERAL REGULATIONS section 101.1.
13-4295.01. Illegal entry from foreign nation; affirmative defense; classification
A. IT IS UNLAWFUL FOR A PERSON WHO IS AN ALIEN TO ENTER OR ATTEMPT TO ENTER THIS STATE DIRECTLY FROM A FOREIGN NATION AT ANY LOCATION OTHER THAN A LAWFUL PORT OF ENTRY.
B. IT IS AN AFFIRMATIVE DEFENSE TO A VIOLATION OF SUBSECTION A OF THIS SECTION IF ANY OF THE FOLLOWING APPLIES:
1. THE FEDERAL GOVERNMENT HAS GRANTED THE DEFENDANT LAWFUL PRESENCE IN THE UNITED STATES OR ASYLUM UNDER 8 UNITED STATES CODE SECTION 1158.
2. THE DEFENDANT'S CONDUCT DOES NOT CONSTITUTE A VIOLATION OF 8 UNITED STATES CODE SECTION 1325(a).
3. THE DEFENDANT WAS APPROVED FOR BENEFITS UNDER THE DEFERRED ACTION FOR CHILDHOOD ARRIVALS PROGRAM BETWEEN JUNE 15, 2012 AND JULY 16, 2021.
C. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT it IS A CLASS 6 FELONY IF THE person HAS BEEN PREVIOUSLY CONVICTED OF A VIOLATION OF THIS SECTION. the person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than thirty consecutive days of incarceration.
13-4295.02. Refusal to comply with order to return to a foreign nation; classification
A. A PERSON WHO IS AN ALIEN COMMITS REFUSAL TO COMPLY WITH AN ORDER TO RETURN TO A FOREIGN NATION IF ALL OF THE FOLLOWING OCCUR:
1. THE PERSON IS CHARGED WITH OR CONVICTED OF AN OFFENSE UNDER THIS ARTICLE.
2. A court, AS APPLICABLE, ISSUES AN ORDER PURSUANT TO SECTION 13-4295.03 FOR THE PERSON TO RETURN TO THE FOREIGN NATION FROM WHICH THE PERSON ENTERED OR ATTEMPTED TO ENTER the United States.
3. THE PERSON REFUSES TO COMPLY WITH THE ORDER.
B. A VIOLATION OF THIS SECTION IS A CLASS 4 FELONY.
13-4295.03. Order to return to foreign nation
A. At any time before a person is convicted of or adjudicated for a violation of SECTION 13-4295.01, a court MAY DISMISS THE CHARGE PENDING AGAINST THE PERSON AND ISSUE A WRITTEN ORDER IN ACCORDANCE WITH SUBSECTION B OF THIS SECTION.
B. A WRITTEN ORDER AUTHORIZED BY SUBSECTION A OF THIS SECTION SHALL DISCHARGE THE PERSON AND REQUIRE THE PERSON TO RETURN TO THE FOREIGN NATION FROM WHICH THE PERSON ENTERED OR ATTEMPTED TO ENTER the United STates AND MAY BE ISSUED IF ALL OF THE FOLLOWING APPLY:
1. THE PERSON AGREES TO THE ORDER.
2. THE PERSON HAS NOT PREVIOUSLY BEEN CONVICTED OF AN OFFENSE UNDER THIS ARTICLE OR PREVIOUSLY OBTAINED A DISCHARGE UNDER AN ORDER ISSUED PURSUANT TO THIS SECTION.
3. THE PERSON IS NOT CHARGED WITH ANOTHER CLASS 1 MISDEMEANOR OR ANY FELONY OFFENSE.
4. BEFORE THE ISSUANCE OF THE ORDER, THE ARRESTING LAW ENFORCEMENT AGENCY DOES both OF THE FOLLOWING:
(a) COLLECTS ALL IDENTIFYING INFORMATION OF THE PERSON, WHICH MUST INCLUDE TAKING FINGERPRINTS FROM THE PERSON AND USING OTHER APPLICABLE PHOTOGRAPHIC AND BIOMETRIC MEASURES TO IDENTIFY THE PERSON.
(b) CROSS-REFERENCEs THE COLLECTED INFORMATION WITH ALL RELEVANT LOCAL, STATE AND FEDERAL CRIMINAL DATABASES AND FEDERAL LISTS OR CLASSIFICATIONS THAT ARE USED TO IDENTIFY A PERSON AS A THREAT OR POTENTIAL THREAT TO NATIONAL SECURITY.
C. ON CONVICTION OF AN OFFENSE UNDER THIS ARTICLE, THE JUDGE SHALL 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. AN ORDER ISSUED UNDER THIS SUBSECTION TAKES EFFECT ON COMPLETION OF any TERM of incarceration or IMPRISONMENT.
D. AN ORDER THAT IS ISSUED UNDER THIS SECTION MUST INCLUDE BOTH OF THE FOLLOWING:
1. An authorization that allows a state or local law enforcement agency to transport THE PERSON TO A PORT OF ENTRY.
2. THE name of the LAW ENFORCEMENT OFFICER OR STATE AGENCY THAT IS RESPONSIBLE FOR MONITORING COMPLIANCE WITH THE ORDER.
13-4295.04. Enforcement of article
Notwithstanding any other law, this article may not be enforced in any manner until the first in time of either of the following:
1. Any part of section 2 of S.B. 4, 88th Leg., 4th Called Sess. (2023) that was enacted in the state of Texas has been in effect for a period of sixty consecutive days at any time on or after the effective date of this article.
2. Sixty days after the United States supreme court overrules or abrogates in whole or part the rulings in Arizona v. United States, 567 U.S. 387 (2012), that parts of laws 2010, chapters 113 and 211 were preempted by federal law.
13-4295.05. Civil immunity for state and local public entities, officials, employees and contractors; other laws not affected
a. a state or local government entity, official, employee or contractor is immune from liability for damages arising from a cause of action under the laws of this state resulting from an action taken by the state or local government entity, official, employee or contractor to enforce this article or an order issued pursuant to this article during the course and scope of the state or local government entity's official's, employee's or contractor's office, EMPLOYMENT or performance for or on behalf of this state or the local GOVERNMENT.
b. this section shall not affect a defense, immunity or jurisdictional bar available to this state or a local government or an official, employee or contractor of this state or a local government.
Sec. 6. Title 23, chapter 2, article 2, Arizona Revised Statutes, is amended by adding section 23-215, to read:
23-215. Employment eligibility; e-verify program; false documents; violation; classification
A. ANY NATURAL PERSON WHO IS NOT LAWFULLY PRESENT IN THE UNITED STATES SHALL NOT KNOWINGLY SUBMIT FALSE INFORMATION OR DOCUMENTS TO AN EMPLOYER TO EVADE DETECTION OF EMPLOYMENT ELIGIBILITY UNDER THE E-VERIFY PROGRAM.
B. ANY NATURAL PERSON WHO VIOLATES SUBSECTION A OF THIS SECTION IS GUILTY OF A CLASS 6 FELONY.
Sec. 7. Section 41-1604, Arizona Revised Statutes, is amended to read:
41-1604. Duties and powers of director
A. The director shall:
1. Be responsible for the overall operations and policies of the department.
2. Maintain and administer all institutions and programs within the department, including prisons, reception and diagnostic centers, conservation camps, community correctional centers and such other facilities and programs as may be required and established for the custody, control, correction, treatment and rehabilitation of all adult offenders who are committed to the department.
3. Be responsible for the administration and execution of all community supervision services, including those for adult offenders who are released in accordance with law.
4. Develop a program to provide uniform statewide community supervision field services in this state and employ parole or community supervision officers based on qualifications prescribed by the director, including physical, psychological and educational qualifications and practical experience.
5. Be responsible for the development of policies and programs that shall be recommended to the governor and the legislature for the purpose of improving the various adult correctional programs of this state.
6. Develop and establish a uniform statewide method of reporting statistics as related to this chapter.
7. Subject to chapter 4, article 4 of this title, employ deputy directors and other key personnel based on qualifications prescribed by the director that require education and practical experience.
8. Adopt rules pursuant to chapter 6 of this title for the development of incentives to encourage good behavior and the faithful performance of work by prisoners.
9. Adopt rules pursuant to chapter 6 of this title to limit inmate access to the internet through the use of a computer, computer system, network, computer service provider or remote computing service.
10. Cooperate with the Arizona Mexico commission in the governor's office and with researchers at universities in this state to collect data and conduct projects in the United States and Mexico on issues that are within the scope of the department's duties and that relate to quality of life, trade and economic development in this state in a manner that will help the Arizona Mexico commission to assess and enhance the economic competitiveness of this state and of the Arizona Mexico region.
B. The director may:
1. Adopt rules to implement the purposes of the department and the duties and powers of the director.
2. Take any administrative action to improve the efficiency of the department, including the following:
(a) Create new divisions or units or consolidate divisions or units.
(b) Subject to chapter 4, article 4 of this title, transfer employees between the various divisions and units of the department.
(c) Shift duties between divisions or units.
(d) Delegate to appropriate personnel the administrative functions, powers or duties that the director believes can be competently, efficiently and properly performed. The director shall not delegate the responsibilities in subsection A, paragraphs 1 and 5 of this section.
(e) Transfer adult inmates between adult institutions or adult facilities.
(f) Authorize work crews to perform acceptable tasks in any part of the state.
(g) Accept unconvicted persons pursuant to a court order for purposes of examination and treatment regarding competency to understand any stage of a criminal proceeding after indictment or information or their ability to assist in their own defense.
(h) Accept convicted yet unsentenced persons pursuant to a court order for purposes of conducting a mental health examination or a diagnostic evaluation.
(i) Subject to chapter 4, article 4 and, as applicable, article 5 of this title, appoint certain employees of the department to peace officer status for purposes of guarding, transporting or pursuing persons who are under the jurisdiction of the department and appoint certain employees of the department to peace officer status for purposes of investigating or arresting persons who commit or attempt to commit offenses directly relating to the operations of the department. Peace officers of the department shall not preempt the authority and jurisdiction of established agencies of this state and political subdivisions of this state. Such officers shall notify agencies of this state and political subdivisions of this state before conducting an investigation within the jurisdiction of the agency and before making an arrest within the jurisdiction of the agency and shall ask, except in an emergency, if the agency wishes to participate, perform the investigation or arrest the person to be arrested before proceeding. Personnel who are appointed as peace officers by the director shall have the minimum qualifications established for peace officers pursuant to section 41 1822. Personnel who are appointed by the director pursuant to this subdivision are not eligible to participate in the public safety personnel retirement system except as otherwise provided in title 38, chapter 5, article 4.
(j) Operate travel reduction programs that are subsidized by the department for employees who commute between work and home by vanpools, carpools and buses or in vehicles that are purchased or leased by the department.
(k) ACCEPT UNCONVICTED OR CONVICTED PERSONS WHO ARE CHARGED WITH OR CONVICTED OF AN OFFENSE INCLUDED IN TITLE 13 CHAPTER 38, ARTICLE 35 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.
3. Establish by rule a one-time fee for conducting background checks on any person who enters a department facility to visit a prisoner. A fee shall not be charged for a person who is under eighteen years of age. The director may adopt rules that waive all or part of the fee. The director shall deposit, pursuant to sections 35 146 and 35 147, any monies collected pursuant to this paragraph in the department of corrections building renewal fund established by section 41 797.
Sec. 8. Right to intervene; lawsuit
A. If any lawsuit is filed challenging any part of this act, 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 shall be allowed to intervene in the action so long as the individual is intervening to defend the constitutionality of the law.
B. Any settlement of a lawsuit challenging this act cannot be entered before service of a twenty-one-day notice to the president of the senate, speaker of the house of representatives, minority leader of the senate and minority leader of the house of representatives. The failure to comply with this subsection shall invalidate the settlement and constitutes a violation of section 38-443, Arizona Revised Statutes.
Sec. 9. Severability
If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article IV, part 1, section 1, Constitution of Arizona."
Amend title to conform