(TN) Lawmakers Drop Illegal Pay Bill

Nashville NewsChannel 5 ^ | April 12, 2008 | Staff Writer

[Tennessee Nana]

NASHVILLE, Tenn.- The state attorney general has shot down a bill by lawmakers surrounding the topic of illegal immigration.

Lawmakers wanted to pass a bill making it a crime for illegal immigrants to accept pay for work done in Tennessee.

Attorney General Bob Cooper discovered the proposal would go against a Federal ruling. They have ruled in the past regardless of immigration status, all workers are entitled to be paid for work they have performed. Local immigrant advocates believe this case backs up their point, that illegal immigrants are not committing a crime by working in this country.

"It may be in violation of immigration law, but that is not, it's civil laws that are not followed, but it is not a crime," said Yuri Cunza with the N.A.H.C.C.

The state lawmakers behind the bill have since dropped it after hearing the Attorney General's opinion.

[Tennessee Nana]

Speechless in Tennessee

[Tennessee Nana]

PING

[Man50D]

Attorney General Bob Cooper discovered the proposal would go against a Federal ruling. They have ruled in the past regardless of immigration status, all workers are entitled to be paid for work they have performed.

That conflicts with the law below.

Federal Immigration and Nationality Act

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) Recruitment and Employment of Illegal Aliens Encouraging and Harboring Illegal Aliens Enforcement RICO —Citizen Recourse Tax Crimes Comment

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) "Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

· assists an illegal alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or · encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or · knowingly assists illegal aliens due to personal convictions. ·

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work.

It is unlawful to hire any individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. "Day laborers" or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the illegal alien labor.

The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.

An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.

Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.

It is illegal for nonprofit or religious organizations to knowingly assist an employer to violate employment sanctions, regardless of claims that their convictions require them to assist illegal aliens. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.

Encouraging and Harboring Illegal Aliens

It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any illegal alien who is in the United States in violation of law. Harboring means any conduct that tends to substantially facilitate an alien to remain in the U.S. illegally. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.

An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.

The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the illegal alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.

Enforcement

A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.

State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.

RICO —Citizen Recourse

Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, and can include nonprofit associations.

Tax Crimes

Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In addition to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.

Comment:

A comment and a published quote by Robert Gaffney, Attorney and County Executive of Suffolk County, LI, NY:

The statutory foundation of United States immigration law has always been the jurisdiction of the federal government, Congress and the federal courts. The preeminent laws concerning the employment of illegal aliens are found in the Immigration and Nationality Act (8 U.S.C. §~ 1101-1503), as amended by the Immigration Reform and Control Act of 1986 CIRCA).

The law states it is a crime to assist an illegal alien who lacks employment authorization by referring him to an employer, or by acting as his or her employer, or as an agent for an employer. 8 U.S.C.S. § 1324a(a)(1)(A) (Lexis 1997). Furthermore, it is unlawful to hire an individual for employment without complying with the employment eligibility requirements for every person hired. 8 U.S.C.S. § 1324a(a)(l)(B) (Lexis 1997). Moreover, conduct tending substantially to facilitate illegal aliens remaining in the United States illegally, where there is knowledge or a reckless disregard of an illegal alien s unlawful status, is a crime, with escalating penalties, encompassed within the provisions of 1324. 8 U.S.C.S. § 1324(a)(l)(A)(iii) (Lexis 1997); United States v. Kim. 193 F-3d 567 (2d Cir. 1999), are considered employees for purposes of immigration law.

[AuntB]

There are so many people in this country, mostly children who need groups to defend them, but what do they do....defend criminals and illegal aliens instead. What a crock.

[Tennessee Nana]

There is a law about profitting from illegal activity that someone is ignoring...

[pissant]

Spineless in Tennessee

[KentTrappedInLiberalSeattle]

Ping.

[Myrddin]

It may not be illegal to pay them for work performed, but it is illegal to hire them. Nail the employer and there won't be more employment or payment due.

[Ouderkirk]

They are entitled to be paid for the work performed.

And, it is illegal to hire them...

Solution. Deport them with their pay, and fine the employers hundred’s of thousands of dollars per offense.

[Guenevere]

Until we get a President who will enforce the rule of law, nothing will change.

The illegals know Bush patently approves their being here....the authorities know this as well.

I have JUST decided, upon hearing that Alan Keyes will announce his Presidential run tomorrow from Hazelton, Pennsylvania (in honor of the mayor who defends rule of law)...

..that I will be willing to renounce the Republican membership I've held for over 30 years, and join the Constitution Party to support Keyes and support his main theme.....stopping illegal immigration.

[Wolfie]

Oh that’s classic. Make it a crime to accept pay. Anything to avoid going after the employer.

[muawiyah]

The statement: "The statutory foundation of United States immigration law has always been the jurisdiction of the federal government, Congress and the federal courts. is factually in error.

The Constitution itself in Section 8.4 regarding the powers of Congress that Congress has the power "To establish an uniform rule of naturalization,...."

That's a "uniform rule" to be adopted by the states, but, as a practical matter Congress has always gone ahead and passed laws concerning the matter.

Frequently this clause is cited as prohibiting the states from having their own rules regarding non-immigrant "illegal aliens". Pretty obvious it doesn't. Since the 14th amendment rules regarding "citizenship" have been federalized, although "naturalization" begins long before "citizenship" starts, so that process is still there for state use.

Section 9.1 governed bringing in more slaves after 1808 ~ but at that time the United States had been operating with strictly state jurisdiction for 33 years.

States are still free to establish their own rules of residency, although that has been eroded by the federales when federal money or the 14th amendment gets in the way.

Not paying workers forwork performed, however, that's something that violates MORALS and folks who think they should get away with working illegal aliens and then not paying them probably should be put on the rack for an hour or so.

Then we should punish them for having contracted with an illegal alien for the work.

[Myrddin]

Solution. Deport them with their pay, and fine the employers hundred’s of thousands of dollars per offense.

That's what I had in mind. Remove the incentive for both parties.

[Liz]

Amazing how well these invaders know US law.

They know exactly which laws they can break with complete impunity.

Or are they breaking every US law with complete impunity?

[Tennessee Nana]

More like “they (are) breaking every US law with complete impunity”

They dont care...

American laws were made to be broken by illegal aliens...

[RinaseaofDs]

You guys are almost dropping to the same level of government choplogic to which Washington State is so accustomed.

My condolences.

[Liz]

I guess Tennessee is another La Zona de Tolerancia that Kenny Bunk posted about the other day. More likely, pols are running scared and here's why:

There seems to be a virtual world out there, the population of which is increasing by leaps and bounds. Perhaps it started with the mythical families of enthusiastic voters, living at mythical addresses (one such world created for Loretta Sanchez in her fraudulent campaign against Cong Bob Dornan)..........

Join me now, amigos, for a tour of post office boxes in our border region: La Zona de Tolerancia Where anything goes and whither goeth many many SS checks, sometimes many to the same mailbox. Our amigos y vecinos del sur invented the virtual person ages ago when they discovered that one Mexican in Mexico could easily be three or four people in the nearby US territory of Aztlán.

Manuel Rodriguez y Gomez soon discovered that he was listed alphabetically under G for Gomez. So the next time, he simply becomes Manuel Rodriguez, But few gringo flak catchers knew that he could be Manuel Gomez-Rodriguez, or Manuel R. Gomez. María Hernández, his encantadora esposa, is actually María Hernández de Rodriguez, Maria Rodriguez, María Rodriguez-Gomez, etc. ad nauseam, depending upon the head of the unit's imaginaciòn and the incompetence of the issuing agencies. Soon, como la noche sigue la tarde, came drivers licenses in each name, all kinds of multiple goodie plastic ID's for health care, food stamps, and the entire panoply of CA welfare services. Not to mention green cards and SS IDs.

You see gringos, in the old-fashioned Spanish culture, one's name is a matter that permits of much personal interpretation. Besides, there are just not that many surnames in Spanish to begin with. A simple phone book check in Yourtown USA should prove that to your satisfaction. Look up José Sánchez. Then 18 pages later .....

Thus, it seemed so natural to Loretta Sanchez. She gave each contrived persona a contrived family ... and hey, they had to live somewhere ... and vote for someone ... so they voted for Loretta Sanchez (who fraudulently won the Cong seat of Bob Dornan). By Kenny Bunk

The pols are scared stiff.

[Tennessee Nana]

Make it a crime to accept pay. Anything to avoid going after the employer.
_____________________________________

We already have a TN law about the employers...

They just get a slap on the hand...

Out of about 117,000 businesses, only about 600 have logged onto E-Verify...

But the criminals also must be made responsible for their crimes...

the illegal aliens are at fault...

Excusing the illegal activities of the illegal aliens by only going after the employers doesnt work..

Employers dont get deported and they just pass the costs of any penalties onto the customers...

[Wolfie]

They can’t pass going to jail off on the customers. A few business owners spend some time with Bubba as a cell-mate, and the problem would solve itself.

[edcoil]

How about fining the Federal government hundreds of thousands for not keeping them out?

[wastedyears]

What the heck kind of bill was that?

Make it illegal for illegals to accept pay?

Nana, what are your legislators on?

[Kozak]

And we are GUARANTEED to have a POTUS for the next 4 years who won’t enforce the laws on immigration.

[org.whodat]

Ramsey is busy trying to arrange the purchase of some house are senate member a private hunting preserve with tax payers money probably!!

[1COUNTER-MORTER-68]

(shakin’ head)...:0/

[HiJinx]

Ping!

Nice try, I guess, but doesn’t look it would work. So far, Arizona’s employer sanctions law appears to have withstood the legal challenges and is having the desired effect.

That makes it a perfect model for other states.

[Kimberly GG]

Yeah, it sure would be. It’s a shame we are having to do this state by state. Ohio is working on one now. If a ‘comprehensive’ reform gets passed, will all this state stuff be for naught? See how little I know :)

[HiJinx]

Hard to tell. What we’ve done is empower state agencies to enforce provisions of Federal law using state-level incentives...or disincentives, as the case may be. Revoking a business license is the kiss of death to a businessman here in AZ.

I know that in theory, the Constitution and Bill of Rights reserve powers to the States that are not enumerated in the Consitution.

However, in practice, Federal Laws generally trump state laws, thanks to the courts. It would remain to be seen what would happen. For an example, look at attempts by the states to curb partial birth abortion...

[archy]

Nice try, I guess, but doesn’t look it would work. So far, Arizona’s employer sanctions law appears to have withstood the legal challenges and is having the desired effect.

That makes it a perfect model for other states.

Ann Coulter's plan for *limited amnesty* is beginning to look like a hopeful possibility as well: in effect: offer immunity for deportation to Mexican and OTM workers and their families, but ONLY if they're complaintants against employers who've underpaid them wages to which they were due under state employment laws/regulations...for which they can receive triple damages.