Critics question penalties in South Carolina illegal immigration bill

COLUMBIA, S.C. --Legislation to severely punish businesses that knowingly hire illegal immigrants could lead to discrimination and burden employers simply because the federal government has been unable to do its job, minority advocates and some business owners said Thursday.

A bill passed by the Senate on Thursday would require employers to verify their workers through a federal electronic database, a new paper-based system to be created by the state or state-issued identification.

Employers who knowingly break the law could be fined up to $2,500 for each illegal immigrant on the payroll for a first offense, $5,000 each on a second offense and $10,000 each for a third offense. An employer could also be sentenced to up to five years in prison if convicted of helping a worker fake documents.

Critics predict the legislation will lead employers to shy away from hiring anyone they think may be an illegal immigrant and create problems for farmers and other businesses.

"We're concerned about the intended and the unintended consequences. We are very worried about discrimination toward people based on how they look and how they sound," said Tammy Besherse, a lawyer following immigration legislation for the Appleseed Legal Justice Center in Columbia.

That's if the bill is legal in the first place. Gov. Mark Sanford, a Republican, said his office was told by federal Homeland Security authorities that the fines would be pre-empted by federal laws. On Thursday he criticized the Senate for not voting on a bill worked out in compromise with the House over the past few weeks that carried no fines.

Sanford said he wants sanctions against employers, but wouldn't be specific. "We would look at the full spectrum of different options. So the answer is 'yes.' In other words, I think that there ought to be a consequence to knowingly breaking the law. Period."

He raised the possibility of a veto. "I don't say that lightly, but the reality is we'll look at any bill in final form."

Sanford and other opponents said they hoped voters and business groups would rally around efforts to change the bill over the weekend. The governor e-mailed supporters and urged them to show up at the Statehouse on Tuesday when the House takes up the Senate's bill.

Billy Ledford, a Greenville County farmer for four decades, said the federal government hasn't stopped illegal immigration and now lawmakers are making him out to be a criminal. He said he may be forced to retire from farming his 200 acres of fruit and vegetables, where he hires 40 summer workers earning $10 an hour on 12-hour shifts.

"They need to look at the people as humans, not as criminals, not as illegals, as human beings," said Ledford, 66. "I wish they would not ask me to walk up to a human being and say, 'You no longer have the means to feed your family.'"

Reggie Hall, spokesman for the South Carolina Farm Bureau, said state lawmakers should instead lobby Congress to improve federal enforcement.

It's unclear how much help Sanford and Rutherford may see from other parts of the business community.

"We're fine with the fines," said South Carolina Chamber of Commerce spokeswoman Marcia Purday. "We think businesses should be held accountable if they hire illegal workers."

Purday said her group was encouraging the House to join the Senate in passing the bill. The group's only misgivings involve the amount of training state employees would get to begin enforcement in 2009.

Tom Sponseller, the president of the Hospitality Association of South Carolina, also said it makes sense for the state to create its own version of federal immigration checks. While he hadn't fully reviewed the legislation, "at first glance, it looks like a very workable solution."

Elaine Morgan, chief executive of the Berkeley County Chamber of Commerce, said the Senate bill and its new verification form seems reasonable even if it is something else to fill out and keep up with.

"We need to get a handle on how to manage this issue because there is an outcry from the citizens, as long as it's not detrimental to businesses," Morgan said.

The House and Senate previously had passed illegal immigration bills that lacked civil or criminal penalties for employers. While a conference committee reached a compromise on the legislation, neither chamber took a final vote. Sanford had praised that compromise.

"Because of the failure in the past to be able to police illegal immigrants, they are now going to put business owners in jail," said state Rep. Todd Rutherford, D-Columbia. "This is not an attack on the illegal problem, it is an attack on small business in South Carolina. It is an attack on large business in South Carolina. That's the most antibusiness piece of legislation I've ever seen."

Mr. Rutherford you are obviously not familiar with the Federal Immigration and Nationality act which severely punishes organizations including businesses and local governments for harboring,aiding and abetting illegal aliens. Per the law:

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.

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