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Arizona senators back law to penalize employers who don't properly verify legal status of workers

Arizona Capitol Museum

By Howard Fischer
Capitol Media Services

PHOENIX -- Senate Republican leaders were lining up the votes Thursday for changes in laws on border and immigration policies after they agreed to further dilute provisions that govern the actions of employers.
As originally crafted, HCR 2060 included stiff penalties for companies who are not following existing laws that require them to verify that those they hire are in this country legally. That included mandatory use of the E-Verify program run by the U.S. Department of Homeland Security.
More to the point, it required the attorney general or county attorney to investigate the failure of an employer to verify someone's eligibility to work in this country. And it carried civil penalties of up to $10,000 a day.
All that was removed earlier this week by the Senate Committee on Military Affairs, Public Safety and Border Security.
What replaced it instead was verbiage to instead focus on job applicants. That makes it a Class 6 felony -- punishable by a year in state prison -- for anyone not lawfully present to submit false information or documents to an employer to evade detection under E-Verify.
As it turns out, even those changes were insufficient. What was needed, said Senate President Warren Petersen, was verbiage to ensure that there was nothing in HCR 2060 that would impose any additional burdens on employers.
"We wanted to make sure it lined up with existing law,'' said the Gilbert Republican.
"Someone had a concern that it didn't line up exactly,'' he continued. "So, we're just clarifying that it lines up.''
But that replacement provision -- the one going after job applicants -- itself was causing some heartburn.
Sen. Ken Bennett said he understands the reason to deter people from submitting false papers to employers.
But the Prescott Republican questioned the idea of making it a felony, with the possibility of prison time, on someone who just was looking for work, even albeit illegally. He also pointed out that it is at odds with much of the rest of the legislation which makes it illegal to enter the country other than at a port of entry. That, Bennett noted, is a misdemeanor which not only carries a lesser penalty but also may be a lower priority for county prosecutors.
Aside from lining up GOP votes, making sure that there is nothing in the measure that increased the burdens -- or the penalties -- on businesses also could also keep the Arizona Chamber of Commerce and Industry out of the fight, not just now at the Capitol but when the measure goes to voters in November.
"We were big on stopping the original bill,'' said Danny Seiden, the organization's president and chief executive officer.
What's left, he told Capitol Media Services, no longer has any employment verification requirements that are different than the current law. And now, Seiden said, it will be up to the board whether to take a position, if not on employment verification then the publicity the law could generate about Arizona.
While the chamber is sitting on the sidelines, that's not the case with Greater Phoenix Leadership. That organization, composed of chief executive officers of business and educational operations, released a statement Thursday calling the measure "an unworkable response to a federal problem with unknown consequences.''
"This measure places an unfunded mandate on local law enforcement to enforce border policy and lacks the infrastructure needed to assume the federal responsibility of apprehension and detention,'' said a statement posted on the organization's website. "Further, the ballot referral poses a policy that lacks clarity on how it will be implemented at the border and throughout the state.''
But while GOP leaders were looking to line up the votes to satisfy their own members and blunt business opposition, they also jettisoned something that Democrats said actually would make the other major part of the bill -- arrest of migrants -- at least marginally more acceptable.
Those provisions actually were originally part of SB 1231 which said state and local police can arrest those who enter Arizona from Mexico at any place other than a port of entry. It is aimed largely at the crowds of migrants who have come here through gaps and holes in the border fencer and then immediately presented themselves to Border Patrol and asked for asylum.
That request alone provides an opportunity to stay without running afoul of federal laws. More to the point, the overburdened system can mean that hearings on asylum requests often are not set for years.
Gov. Katie Hobbs vetoed the measure, saying border security is a federal problem. And other Democrats said they feared it would lead to racial profiling as police are more likely to look for Hispanics.
But SB 1291 did have a provision designed to blunt concerns that its provisions would provoke fear among migrants.
It specifically barred police from enforcing the law if someone is on the grounds of a public or private school, college or university. Also off limits would be arrests at churches, synagogues or other established places of worship. And people could not be taken into custody if they were seeking treatment at a health care facility.
All that is gone.
"That's not needed,'' Senate President Warren Petersen told Capitol Media Services.
"This is just border enforcement at the border,'' said the Gilbert Republican. "So there's no situation that anybody would need to go into any of those things.''
Democrats, however, remain unconvinced.
They said there is nothing in the legislation that limits enforcement to just the border. And they said there also are no provisions to spell out that the law does not apply statewide.
The measure drew new opposition Thursday from three county attorneys who represent the border area.
"This striker (bill) is facially unconstitutional,'' wrote Republican Cochise County Attorney Brian McIntyre to other county attorneys and sheriffs around the state. "The criminal provisions are unenforceable, bad public policy, and embarrassing for the state.''
In his own comment, Yuma County Attorney Jon Smith acknowledged that federal leadership in dealing with border issues "has been lacking, at best, over the last two or so decades.'' But the Democrat said this is not the answer because it places the financial burden on local agencies
Pima County Attorney Laura Conover said she fears this will revisit what happened in 2010 when Arizona lawmakers approved SB 1070. It was designed to give police the power to question people they stopped about their immigration status and detain them.
"I watched public safety take a hit, I watched major economic fallout, I watched national embarrassment, and I watched brain drain out of the University (of Arizona) main and law campuses,'' she said in her own statement.
"Now, as Pima's top law enforcement official, I need all of our neighborhoods to trust our police and to participate as victims and witnesses in holding accountable those who would do us harm,'' Conover said. "When it comes to HCR 2060, I hope wisdom prevails''
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