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ARIZONA HOUSE OF REPRESENTATIVESFifty-sixth Legislature Second Regular Session |
House: JUD DP 6-3-0-0 |
HB 2821: state crime; illegal border crossings.
Sponsor: Representative Montenegro, LD 29
Caucus & COW
Overview
An emergency measure that establishes state criminal liability for a range of conduct relating to unlawful immigration, including illegal entry and reentry into Arizona from a foreign nation and refusal to comply with an order to return to a foreign nation. Creates various enforcement mechanisms of these provisions as well as civil immunity and indemnification for certain persons who enforce them as part of their official duties.
History
8 U.S.C. chapter 12 contains numerous federal statutes relating to aliens, immigration and nationality in the U.S. For purposes of this chapter, alien means any person not a citizen or national of the U.S. (8 U.S.C. § 1101(a)(3)). It is a federal crime for an alien to do any of the following:
1) enter or attempt to enter the U.S. at any time or place other than as designated by immigration officers;
2) elude examination or inspection by immigration officers; or
3) attempt to enter or obtain entry to the U.S. by a willfully false or misleading representation or the willful concealment of a material fact.
Under this provision, a first-time offense carries a maximum prison term for 6 months and/or a fine, and a subsequent offense carries a maximum prison term of 2 years and/or a fine (8 U.S.C. § 1325(a)).
Any alien who is physically present in the U.S. or who arrives in the U.S. may apply for asylum. In order to receive asylum status, the applicant must show that they are a refugee as defined in 8 U.S.C. § 1101(a)(42)(A) and, in order to show refugee status, the applicant must establish that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for persecuting the applicant (8 U.S.C. § 1158).
Federal immigration officers or judges are required to order the removal of certain aliens, subject to a certain review process, if they suspect that an arriving alien may be inadmissible for certain reasons, including for certain terrorist activities enumerated in 8 U.S.C. § 1182(a)(3)(B) (8 U.S.C. § 1225(c)). 8 U.S.C. chapter 12, subchapter V also provides for certain alien terrorist removal procedures.
Finally, under certain circumstances enumerated in federal statute, the U.S. Attorney General is authorized to remove an alien who has been sentenced to a term of imprisonment before the alien has competed the sentence in accordance with applicable procedures (8 U.S.C. § 1231(a)(4)(B)).
The Deferred Action for Childhood Arrivals (DACA) program allows qualified individuals without lawful immigration status to defer removal of the individual from the U.S. Deferred action remains in effect for a period of two years, subject to renewal, and provides recipients with employment authorization. On July 16, 2021, the U.S. District Court for the Southern District of Texas issued a vacatur and a permanent injunction against the continued operation of the program, thereby enjoining the U.S. Department of Homeland Security from granting DACA status for new applicants (U.S. Department of Homeland Security).
Provisions
1. Adds article 35 to A.R.S. title 13, chapter 38, relating to illegal entry into Arizona, containing several sections of statute outlined more specifically below. (Sec. 3)
Illegal Entry from a Foreign Nation
2. Establishes illegal entry from a foreign nation as a criminal offense involving a person who is an alien entering or attempting to enter Arizona directly from a foreign nation at any location other than a lawful port of entry. (Sec. 3)
3. Classifies this offense as a class 1 misdemeanor, unless the defendant has been previously convicted of the offense, in which case it becomes a class 6 felony. (Sec. 3)
4. Provides for an affirmative defense for a violation of this new offense if any of the following applies:
a) the federal government has granted the defendant lawful presence in the U.S. or asylum under 8 U.S.C. § 1158.
b) the defendant's conduct does not constitute a violation of 8 U.S.C. § 1325(a).
c) the defendant was approved for benefits under the DACA program between June 15, 2012 and July 16, 2021. (Sec. 3).
5. Notwithstanding this affirmative defense, specifies that the following federal programs do not provide an affirmative defense in a prosecution for this new offense:
a) the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
b) any program not enacted by the U.S. Congress that is a successor to or materially similar to the DAPA program or the DACA program. (Sec. 3)
Illegal Reentry by Certain Aliens
6. Establishes illegal reentry by certain aliens as a criminal offense involving a person who is an alien who enters, attempts to enter or is found at any time in Arizona if either of the following applies:
a) the person has been denied admission to or excluded, deported or removed from the U.S.; or
b) the person has departed from the U.S. while an order of exclusion, deportation or removal is outstanding (Sec. 3)
7. Classifies this offense as a class 1 misdemeanor, exception that the offense becomes a class 3 felony if any of the following applies:
a) the defendant's removal was subsequent to a conviction for commission of two or more misdemeanors involving drugs or crimes against a person or both;
b) the defendant was excluded pursuant to 8 U.S.C. § 1225(c) because the defendant was excludable under 8 U.S.C. § 1182(a)(3)(B);
c) the defendant was removed pursuant to 8 U.S.C. chapter 12, subchapter V;
d) the defendant was removed pursuant to 8 U.S.C. § 1231(a)(4)(B). (Sec. 3)
8. Notwithstanding the above classifications, makes this offense a class 2 felony if the defendant was removed subsequent to a conviction for the commission of a felony. (Sec. 3)
Order to Return to Foreign Nation
9. Establishes a process for a judge or magistrate to issue an order to return to a foreign nation in certain circumstances for a person who is arrested for illegal entry from a foreign nation or illegal reentry by certain aliens, which must discharge the person and require the person to return to the foreign nation from which the person entered or attempted to enter and may be issued if all of the following apply:
a) the person agrees to the order;
b) the person has not previously been convicted of an offense under this new article or previously obtained a discharge under an order to return to a foreign nation;
c) the person is not charged with another class 1 misdemeanor or any felony offense; and
d) before the issuance of the order, the arresting law enforcement agency does all of the following:
i) collects all identifying formation of the person, which must include taking fingerprints from the person and using other applicable photographic and biometric measures to identify the person; and
ii) cross-reference the collect 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 (Sec. 3)
10. Additionally, after conviction for an offense under this new article, requires the judges to enter an order that requires the person to return to the foreign nation from which the person entered or attempted to enter, which takes effect on competition of the person's prison term. (Sec. 3).
11. Requires an order to return to a foreign nation to include both of the following:
a) the manner of transportation of the person to a port of entry; and
b) the law enforcement officer or state agency that is responsible for monitoring compliance with the order. (Sec. 3)
12. Directs orders to return to a foreign nation to be filed with either the county clerk of the county in which the person was arrested or the clerk of the court excising jurisdiction in the case, depending upon what stage in the criminal case the order was issued. (Sec. 3)
13. No later than seven days after an order to return to a foreign nation is issued, requires the law enforcement officer or state agency that is required to monitor compliance with the order to report the issuance of the order to the Department of Public Safety (DPS) for inclusion in the Central State Repository under A.R.S. § 41-1750. (Sec. 3)
14. Establishes refusal to comply with an order to return to a foreign nation as a criminal offense involving a person who is an alien meeting all of the following circumstances:
a) the person is charged with or convicted of an offense under this new article;
b) a magistrate or judge, as applicable, issues an order to return to a foreign nation; and
c) the person refuses to comply with the order. (Sec. 3)
15. Classifies this offense as a class 2 felony. (Sec. 3).
Civil Immunity and Indemnification
16. Adds two new sections to A.R.S. title 12, chapter 7, article 2 that make a Arizona state or local government official, employee or contractor immune from civil liability for damages arising from a cause of action under Arizona law resulting from an action taken by the person to enforce the new article being added to A.R.S. title 13, chapter 38 (described above) during the course and scope of the person's office, employment or contractual performance for or service on behalf of the Arizona state or local government. (Sec. 1)
17. Requires a local government to indemnify a local government official, employee or contractor for damages arising from a cause of action under federal law resulting from an action taken by the person to enforce the new article being added to A.R.S. title 13, chapter 38 (described above) during the course and scope of the person's office, employment or contractual performance for or service on behalf of the local government in an amount no greater than:
a) $100,000 to any one person or $300,000 for any single occurrence in the case of personal injury or death; or
b) $10,000 for a single occurrence of property damage. (Sec. 1)
18. Requires the state of Arizona to indemnify an Arizona state official, employee or contractor for damages arising from a cause of action under feral law resulting from an action taken by the person to enforce the new article being added to A.R.S. title 13, chapter 38 during the course and scope of the person's office, employment or contractual performance for or service on behalf of the state of Arizona, and states that, notwithstanding any other law, an indemnification payment made under this provision is not subject to an indemnification limit under Arizona law. (Sec. 1)
19. Specifies that, for both state and local government officials, employees or contractors, the above immunity and indemnification provisions do not apply if the court or a jury determines that the person acted in bad faith, with conscious indifference or with recklessness. (Sec. 1)
20. Requires the Arizona state government or a local government to indemnify their respective officials, employees or contractors for reasonable attorney feeds incurred in defense of a criminal prosecution against the person for an action taken by the person to enforce the new article that is being added to A.R.S. title 13, chapter 38 during the course and scope of the person's office, employment or contractual performance for or service on behalf of the local government. (Sec. 1)
21. States that neither of these two new sections concerning civil immunity and indemnification for Arizona state and local government officials, employees or contractors waive any statutory limits on damages under Arizona law. (Sec. 1)
22. Adds an additional section to A.R.S. title 12, chapter 7, article 2 requiring that, for a civil action that is brough against a person who may be entitled to immunity or indemnification under the other two new section described above, an appeal must be taken directly to the Arizona Supreme Court. (Sec. 1)
23. Specifies that the three new sections to A.R.S. title 12, chapter 7, article 2 described above do not affect a defense, immunity or jurisdictional bar available to the state of Arizona or a local government or an official, employee or contractor of the state of Arizona or a local government. (Sec. 1)
Miscellaneous
24. Makes a defendant who is convicted of an offense under the new article that is being A.R.S. title 13, chapter 38 ineligible for community supervision and prohibits a court from abating the prosecution of an offense under the new article on the basis that a federal determination regarding the defendant's immigration status is pending or will be initiations. (Sec. 2, 3)
25. For purposes of the new article that is being added to A.R.S. title 13, chapter 38, defines terms as follows:
a) alien means a person who is not a citizen or national of the U.S. as described in 8 U.S.C. § 1101;
b) port of entry means a port of entry in the U.S. as described in 19 C.F.R. part 101.1.
26. For purposes of the Central State Repository, requires DPS to procure certain information for persons who have been charged with, arrested for, convicted of or summoned to court as a criminal defendant for illegal entry from a foreign nation or illegal reentry by certain aliens and from whom an order to return to a foreign nation was issued. (Sec. 6).
27. Makes conforming changes. (Sec. 4, 5).
28.
Contains an
emergency clause. (Sec. 7)
29.
30.
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32. HB 2821
33. Initials JL Page 0 Caucus & COW
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