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Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 1 of 122

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Anne Lai (admitted pro hac vice)


alai@law.uci.edu
Sameer Ashar (admitted pro hac vice)
sashar@law.uci.edu
University of California, Irvine School
of Law Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
Joshua D. Bendor (SBA No. 031908)
jbendor@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854

Jessica Karp Bansal (admitted pro hac


vice)
jbansal@ndlon.org
National Day Laborer Organizing
Network
675 S. Park View Street, Suite B
Los Angeles, California 90057
Telephone: (213) 380-2214

Ray A. Ybarra Maldonado


(SBA No. 027076)
rybarra@stanfordalumni.org
Law Office of Ray A. Ybarra
Maldonado, PLC
2637 North 16th Street, Unit 1
Phoenix, AZ 85006
Telephone: (602) 910-4040

Jessica Myers Vosburgh (admitted pro


hac vice)
jvosburgh@ndlon.org
National Day Laborer Organizing
Network
2104 Chapel Road
Hoover, AL 35216
Telephone: (205) 317-1481

Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,


Plaintiffs,

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v.
Joseph M. Arpaio, et al.,
Defendants.

Case No. 2:14-cv-01356-DGC


LODGED:
SECOND AMENDED COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 2 of 122

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Anne Lai (admitted pro hac vice)


alai@law.uci.edu
Sameer Ashar (admitted pro hac vice)
sashar@law.uci.edu
University of California, Irvine School
of Law Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
Joshua D. Bendor (SBA No. 031908)
jbendor@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854

Jessica Karp Bansal (admitted pro hac


vice)
jbansal@ndlon.org
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214

Ray A. Ybarra Maldonado


(SBA No. 027076)
rybarra@stanfordalumni.org
Law Office of Ray A. Ybarra
Maldonado, PLC
2637 North 16th St., Unit 1
Phoenix, AZ 85006
Telephone: (602) 910-4040

Jessica Myers Vosburgh (admitted pro


hac vice)
jvosburgh@ndlon.org
National Day Laborer Organizing
Network
2104 Chapel Hill Road
Hoover, AL 35216
Telephone: (205) 317-1481

Attorneys for Plaintiffs


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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Puente Arizona, Susan E. FrederickGray, Russell Andrew Burnette and Erin


Tamayo, on behalf of themselves and all
others similarly situated; Sara Cervantes
Arreola; and Elia Estrada Fernandez,
Plaintiffs,
v.
Joseph M. Arpaio, Sheriff of Maricopa
County, Arizona, in his official capacity;
Bill Montgomery, Maricopa County
Attorney, in his official capacity;
Maricopa County, Arizona; and the State
of Arizona,
Defendants.

No. 2:14-cv-01356-DGC
SECOND AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF

CLASS ACTION

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 3 of 122

INTRODUCTION

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1.

This action challenges two state laws, Arizona House Bill 2779 (H.B.

2779), passed in 2007, and Arizona House Bill 2745 (H.B. 2745), passed in 2008,

which sought, in relevant part, to criminally punish individuals who do not have federal

authorization to work in the United States for the act of securing employment. Both

measures were promulgated as part of a broader platform favored by Arizona nativists to

make life so difficult for immigrants coming from Mexico and Latin America that they

would self-deport.
2.

Arizona entered uncharted territory as a state when it revised its identity

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theft laws to achieve this aim. Specifically, H.B. 2779, also called the Legal Arizona

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Workers Act, created a new offense of aggravated identity theft to use the information

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of another person, including a real or fictitious person, with the intent to obtain

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employment. A.R.S. 13-2009(A)(3). H.B. 2745 supplemented the Legal Arizona

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Workers Act by defining the offense of identity theft to include use of anothers

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information, real or fictitious, with the intent to obtain or continue employment. 13-

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2008(A).

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3.

The action also challenges the Maricopa County Sheriffs Offices (the

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MCSOs) and the Maricopa County Attorneys Offices (the MCAOs) effort,

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funded by Maricopa County, to use the above-described provisions in A.R.S. 13-

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2008(A) and 13-2009(A)(3) (collectively referred to as the worker identity

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provisions), together with Arizonas forgery statute, 13-2002, to carry out a campaign

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to target undocumented immigrants in the workplace for arrest and prosecution.1


4.

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The effect of these measures has been to turn individuals such as Plaintiff

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Sara Cervantes Arreolawho worked for years at a grocery store on Phoenixs west

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side to support her young soninto convicted felons. Ms. Cervantes Arreola was

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Plaintiffs use the terms undocumented immigrant and undocumented worker in this
Complaint to refer to individuals who do not have federal authorization to work in the
United States. The only exception is that where materials quoted by Plaintiffs use a
different termsuch as illegal immigrants, illegal aliens, aliens and illegals
then Plaintiffs will use that terminology for purposes of faithfully reproducing the quote.
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arrested at work in January 2013 for using identifying information of a fictitious person,

something she needed to do in order to get the job.

5.

MCSOs and MCAOs enforcement campaign has separated breadwinners

from their families, suppressed workers rights, eroded the social fabric of the

community, and ultimately harmed many U.S. citizens as well as immigrants. Taxpayer

funds have been improperly diverted from essential public services to jail and prosecute

workers. And organizations such as Plaintiff Puente Arizona have had to respond to the

fallout of enforcement operations by providing humanitarian and advocacy assistance to

affected families.

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6.

Defendants effort to single out employment by undocumented workers

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intrudes upon an area of exclusive federal control. It interferes and conflicts with federal

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laws established by Congress and implemented by the executive branch regulating

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immigration and employment, and thus violate the Supremacy Clause. The worker

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identity provisions also discriminate on the basis of alienage in violation of the

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Fourteenth Amendment of the U.S. Constitution.

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7.

Plaintiffs bring this action seeking declaratory and injunctive relief to

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prevent further unconstitutional arrests and prosecutions and an expungement of records

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for the two Plaintiffs who have been improperly convicted.

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JURISDICTION AND VENUE

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8.

This action arises under 42 U.S.C. 1983 and the laws and Constitution of

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the United States. This Court has subject matter jurisdiction under 28 U.S.C. 1331

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and 1343. The Court has authority to grant declaratory relief under 28 U.S.C. 2201

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and 2202.

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9.

Venue is proper under 28 U.S.C. 1391(b). All Defendants are sued in

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their official capacity and their official places of business are located within this District.

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A substantial part of the events or omissions giving rise to the claims occurred in this

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District.
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PARTIES

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Plaintiffs

10.

Plaintiff Puente Arizona (Puente) is a grassroots membership

organization based in Phoenix. Its mission is to promote justice, human dignity, non-

violence and interdependence. It aims to develop, educate, and empower immigrant

communities, and to enhance the quality of life of immigrants. Puente provides free

English classes, media trainings, know-your-rights workshops, health and wellness

training, educational programs for children, and other services to the community. The

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arrests and prosecutions of workers under A.R.S. 13-2002, 13-2008(A) and 13-

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2009(A)(3) have frustrated Puentes mission by creating a climate of fear and separating

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parents, community leaders, and students from those who depend on them. Puente has

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been forced to cut back on its services and divert scarce resources in order to assist

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affected workers and their families. In addition, some members of Puente are currently

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at risk of being investigated, arrested, detained and/or prosecuted under the worker

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identity provisions and forgery statute.

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11.

Plaintiff Sara Cervantes Arreola is a resident of Glendale, Arizona and

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mother of a 6-year-old son and a 5-month old baby. From 2007 to 2013, Ms. Cervantes

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worked up to 14 hours a day, five days a week in the produce department at Lams

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Supermarket to provide for her family. On January 17, 2013, she was arrested at work

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by the MSCO during a workplace raid for using the identity of a fictitious person to

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obtain employment. On March 18, 2013, she pled guilty to aggravated identity theft, a

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Class 3 felony, under A.R.S. 13-2009.

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12.

Plaintiff Elia Estrada Fernandez is a resident of Mesa, Arizona and the

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mother of three young children. From 2013 to 2014, Ms. Estrada worked at Arbys in

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Chandler Arizona to provide for her family. On September 22, 2014, she was arrested by

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the Gilbert Police Department and charged with using a false identity to work. On

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October 28, 2014, she pled guilty to one count of aggravated taking the identity of

another with intent to obtain employment under A.R.S. 13-2009, a Class 3 felony.

13.

Plaintiff Reverend Susan E. Frederick-Gray is the Lead Minister of the

Unitarian Universalist Congregation of Phoenix, Arizona. She works in, resides in,

owns property in and pays taxes to Defendant Maricopa County. Upon information and

belief, Maricopa County has been using taxes paid by Plaintiff Frederick-Gray to

enforce A.R.S. 13-2002, 13-2008(A) and 13-2009(A)(3) against undocumented

workers. Plaintiff Frederick-Gray is challenging the enforcement of these statutes as an

illegal expenditure of county taxpayer funds.

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14.

Plaintiff Reverend Russell Andrew Burnette is the Senior Minister at

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Valley Unitarian Universalist Congregation in Chandler, Arizona. He works in, resides

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in, owns property in and pays taxes to Defendant Maricopa County. Upon information

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and belief, Maricopa County has been using taxes paid by Plaintiff Burnette to enforce

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A.R.S. 13-2002, 13-2008(A), and 13-2009(A)(3) against undocumented workers.

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Plaintiff Burnette is challenging the enforcement of these statutes as an illegal

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expenditure of county taxpayer funds.

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15.

Plaintiff Reverend Erin Tamayo is a pastor of the Presbyterian Church

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USA. She works in, resides in, owns property in and pays taxes to Defendant Maricopa

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County. Upon information and belief, Maricopa County has been using taxes paid by

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Reverend Tamayo to enforce A.R.S. 13-2002, 13-2008(A), and 13-2009(A)(3) against

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undocumented workers. Reverend Tamayo is challenging the enforcement of these

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statutes as an illegal expenditure of county taxpayer funds.

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Defendants

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16.

Defendant Joseph M. Arpaio (Arpaio) is the elected Sheriff of Maricopa

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County, Arizona. He is the final policymaker for Maricopa County in the area of law

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enforcement, and is responsible for setting the policies, practices and customs of the

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MCSO, including those pertaining to the agencys enforcement of A.R.S. 13-2002, 13-

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2008(A) and 13-2009(A)(3). Defendant Arpaio is sued in his official capacity.


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17.

Defendant Bill Montgomery (Montgomery) is the elected County

Attorney for Maricopa County, Arizona. Defendant Montgomery is the chief official

responsible for the enforcement and prosecution of felonies within Maricopa County,

including A.R.S. 13-2002, 13-2008(A) and 13-2009(A)(3), as well as misdemeanors

that occur in unincorporated areas. Defendant Montgomery is the final policymaker for

Maricopa County on matters of prosecution. He is sued in his official capacity.

18.

Defendant Maricopa County, Arizona, is a political subdivision formed and

designated as such pursuant to Title 11 of the Arizona Revised Statutes. Maricopa County

is liable for the practices and policies of Defendants Arpaio. The County has also

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acquiesced in and, through local tax revenues, financed the enforcement of A.R.S. 13-

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2002, 13-2008(A) and 13-2009(A)(3) by MCSO and MCAO as described in this

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Complaint.

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19.

Defendant State of Arizona is a state in the United States. It includes the

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Arizona Department of Public Safety (DPS), which is responsible for collecting,

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storing and disseminating criminal history records and related criminal justice

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information for the state of Arizona.

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FACTUAL ALLEGATIONS

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Exclusive Federal Control over Immigration and Employment Verification

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20.

More than 20 years before Arizona sought to regulate the employment of

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undocumented immigrants through H.B. 2779 and H.B. 2745, Congress enacted the

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Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 99-603, a

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comprehensive framework for combatting the employment of illegal aliens. Arizona v.

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United States, 132 S. Ct. 2492, 2504 (2012) (internal quotation omitted).

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21.

IRCA added to an already extensive system of federal laws addressing the

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entry, expulsion and treatment of immigrants in the Immigration and Nationality Act

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(INA). See 8 U.S.C. 1101 et seq.

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22.

The Constitution grants the federal government exclusive, plenary power

over immigration matters, stating that the federal government may establish a uniform

Rule of Naturalization, U.S. Const. art. 1, 8, cl. 4, and regulate Commerce with

foreign Nations, U.S. Const. art. I, 8, cl. 3.

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23.

Congresss comprehensive system of federal laws governing immigration

generally leaves no room for supplemental or parallel state laws.


24.

In passing IRCA, Congress balanced numerous factors in settling on a

scheme for the regulation of immigration and employment that imposed a graduated

series of civil and criminal sanctions on employers for the knowing employment of

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undocumented workers. Congress located this new scheme in the immigration statutes.

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See 8 U.S.C. 1324a et seq.

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25.

The comprehensive framework created by Congress does not impose

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criminal sanctions on the employee side for unauthorized work. Proposals to make

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seeking or engaging in unauthorized work a criminal offense were introduced and

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debated. However, Congress decided not to adopt them.

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26.

As the Supreme Court recently recognized, IRCA's framework reflects a

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considered judgment that making criminals out of aliens engaged in unauthorized

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workaliens who already face the possibility of employer exploitation because of their

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removable statuswould be inconsistent with federal policy and objectives. Arizona,

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132 S. Ct. 2492 at 2504.

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27.

Committee reports accompanying IRCA confirmed Congresss view that

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undocumented workers should not be treated as severely as the employers that hire

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them. They recognized that there are severe economic push factors that lead aliens to

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enter the country illegally and that many who enter illegally do so for the best of

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motivesto seek a better life for themselves and their families. H.R. Rep. 99-682, part

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1, at 46, 63; see also S. Rep. No. 99-132, at 3.

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28.

Further, in IRCA, Congress established a detailed procedure by which

employers would have to verify prospective employees eligibility for employment. 8


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U.S.C. 1324a(a)(1)(B). This procedure involves the inspection of certain documents to

confirm identity and employment eligibility and completion of a Form I-9, Employment

Eligibility Verification Form. Id.; see also 8 C.F.R. 274a.2.

29.

Anticipating that some might respond to the new verification system by

relying on false documents or making false statements, Congress also endowed federal

authorities with certain tools to combat document fraud.

30.

Section 103 of IRCA amended 18 U.S.C. 1546 pertaining to Fraud and

misuse of visas, permits, and other documents to impose a criminal penalty for the use

of a false identification document or making of a false attestation for purposes of

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satisfying the employment verification requirement. 18 U.S.C. 1546(b). Section 103

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also expanded the prohibition on selling, making or using fraudulent immigration

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documents to include those documents used as evidence of authorized . . . employment

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in the United States. 18 U.S.C. 1546(a).

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31.

In addition to 18 U.S.C. 1546, Congress specifically designated several

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existing federal criminal statutes that could be applied to fraud in the employment

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verification process. See 8 U.S.C. 1324a(b)(5) (listing applicable statutes, consisting of

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Title 18, Sections 1001 [false statements], 1028 [fraud in connection with identity

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documents], 1546 and 1621 [perjury]).

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32.

Congress has also created certain civil penalties for document fraud. 8

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U.S.C. 1324c allows an administrative law judge to impose a fine, after a hearing, of

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$250-$2,000 on any person or entity who knowingly forge[s], use[s] or attempt[s]

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to use a document not belonging to the possessor to satisfy the requirements of the

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INA, including for purposes of obtaining employment. 8 U.S.C. 1324c(a)(1)-(4),

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1324c(d).

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33.

Finally, immigration consequences can attach to document fraud in the

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employment verification process. See, e.g., 8 U.S.C. 1227(a)(3)(C)(i) (making an

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alien who is the subject of a final order for violation of section 1324c of this title []

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deportable); 8 U.S.C. 1182(a)(6)(C) (making those who make false claims to


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citizenship, including for purposes of 8 U.S.C. 1324a, inadmissible and thus ineligible

for adjustment of status to that of a lawful permanent resident). Conversely, federal

authorities may decide to forego sanctions, for example, in cases where a worker is the

victim of labor trafficking, other labor violations or could otherwise be helpful to a law

enforcement investigation. See, e.g., 8 U.S.C. 1101(a)(15)(T), 1101(a)(15)(U).

34.

Congress made a point to circumscribe punishment of fraud in the

employment verification process to enforcement of the immigration statutes and the

several criminal statutes listed in 8 U.S.C. 1324a. See 8 U.S.C. 1324a(b)(5)

(limiting use of the [Form I-9] attestation form . . . and any information contained in or

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appended to such forms to enforcement of this chapter and sections 1001, 1028, 1546,

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and 1621 of Title 18) and 1324a(d)(2)(F) (requiring that any changes to the

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employment verification system continue to meet the requirement that it not be used for

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law enforcement purposes, other than for enforcement of this chapter or sections 1001,

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1028, 1546, and 1621 of Title 18). The limitation on the use of the attestation form

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extends to copies or electronic images of documents . . . used to verify an individuals

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identity or employment eligibility. 8 C.F.R. 274a.2(b)(4).

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35.

Congress also included other language reinforcing the limitations on the

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use of the employment verification system. It included sections titled Limited use of

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system, 8 U.S.C. 1324a(d)(2)(C), Restrictions on use of new documents, 8 U.S.C.

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1324a(d)(2)(G), and limited the Copying of documentation permitted. 8 U.S.C.

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1324a(b)(4).

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36.

In sum, in establishing the new employer sanctions regime in IRCA,

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Congress made clear that the verification process created by the legislation and the

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information employees submit to show their work status was to be used to enforce

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federal law and not for any other purpose. Arizona, 132 S. Ct. 2492 at 2504.

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37.

The federal governments creation of a pervasive, complex array of civil,

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criminal and immigration tools to address fraud in the employment verification process

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further manifests its purpose to preclude any state or local regulation on the same
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subject. Congress has expressed much more than a peripheral concern with the issue,

De Canas v. Bica, 424 U.S. 351, 360 (1976); indeed, it has fully occupied the field.

Arizona Legislature Adopts Anti-Immigrant Agenda, Amends Identity Theft Laws

38.

Beginning in 2004, citizen groups in Arizona began to converge around a

platform of protecting against the perceived threats posed by the states immigrant

population.

39.

These nativist groups, such as the Minuteman Civil Defense Corps, found

a sympathetic ear in then-Arizona House Representative Russell Pearce, among other

elected officials.

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40.

In 2004, Pearce authored and championed for the passage of Proposition

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200, a ballot initiative that would require proof of citizenship in voter registration and

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limit immigrant families access to public benefits. He would go on to author many more

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measures dealing with immigration over the following six years, first as a representative

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and then later as a state senator, as part of a comprehensive strategy he called attrition

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through enforcement.

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41.

The goal of attrition through enforcement was to make life so difficult

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for undocumented immigrants and their families that they would deport themselves.

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For example, attrition through enforcement was the explicit aim of Pearces Senate

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Bill 1070, an omnibus immigration measure passed in 2010, much of which has since

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been found to be unconstitutional.

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42.

According to an April 2006 Center for Immigration Studies article that

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Pearce circulated to supporters, the attrition through enforcement strategy had

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different components, such as the enactment of local regulation to discourage

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immigrants from settling in a location and the aggressive expansion of the role of state

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and local law enforcement agencies in the apprehension and detention of immigrants.

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Another element focused on ending misuse of Social Security and IRS identification

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numbers, which illegal immigrants use to secure jobs . . . . (emphasis added). A copy of

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the email from Pearce is attached as Exhibit 1 to this Complaint.


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43.

The Arizona Legislature incorporated this latter aspect of the attrition

through enforcement strategy in a Pearce-sponsored bill in 2006, House Bill 2577 (H.B.

2577).

44.

H.B. 2577, in relevant part, added a provision to the Arizona criminal code

that defined the offense of forgery to include the making or alteration of a written

instrument that is used to obtain employment in this state by a person who is not

authorized to work in the United States. The bill specifically made this type of forgery,

targeted at undocumented workers, a Class 3 felony, punishable by up to 7 years, A.R.S.

13-702(D), while all other types of forgery would remain Class 4 felonies under the

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statute.
45.

To mobilize support for measures like H.B. 2577 in the Legislature, Pearce

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encouraged and played on the fear and resentment his constituents felt towards

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immigrants.

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46.

For example, he forwarded a message from two residents of his home

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district in Mesa advocating for passage of H.B. 2577 that included grievances about a

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mass invasion of historic proportions by an Hispanic migrant army, members of

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whom were corrupt[ing] our unifying national language while actively disrespecting

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our culture, society and country. A copy of the email from Pearce is attached as Exhibit

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2 to this Complaint.

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47.

Pearce has himself discussed the threat he believes is posed by

immigration from Mexico.


48.

During a February 6, 2006 House Federal Mandates and Property Rights

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Committee hearing, in which he was advocating for H.B. 2577, Pearce proclaimed,

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incorrectly, that [Arizona is] number one in the nation in crime, number one! He

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explained, [T]heres a clear reason for that, and thats that connection we have to open

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borders and our failure to secure that border. Arizona Legislature recording of February

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6, 2006 House Federal Mandates and Property Rights Committee hearing, at

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approximately 8:07 of discussion on H.B. 2577.


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49.

During a Senate Appropriations Committee hearing on April 19, 2006,

Pearce remarked that We have an illegal alien crisis and we all recognize that. Arizona

Legislature recording of April 19, 2006 Senate Appropriations Committee hearing, at

approximately 11:15 of discussion on H.B. 2577. He further discussed the Mexican

government in their 12th edition of How to Break into America and Get Free Stuff. Id.

at approximately 14:55.

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50.

Pearce specifically alerted supporters to the phenomenon of individuals

using false Social Security numbers to work.


51.

In 2006, he forwarded an article that presented the issue as one about,

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among other things, illegals who smuggle [themselves] across the border and take a

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job that lawfully belongs to an American. A copy of the email from Pearce is attached

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as Exhibit 3 to this Complaint.

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52.

In a 2007 email to a constituent who had advocated for classification of

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certain illegals as domestic terrorists, Pearce discussed the rapidly growing crime

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of illegal aliens stealing identities to get American jobs. A copy of the email from

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Pearce is attached as Exhibit 4 to this Complaint.

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53.

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Governor.

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54.

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Although H.B. 2577 passed the Legislature in 2006, it was vetoed by the

Pearce made another attempt the next year. In 2007, he introduced H.B.

2779, a bill that would eventually come to be known the Legal Arizona Workers Act.
55.

Section 1 of H.B. 2779 amended Arizonas aggravated identity theft

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statute to punish individuals for using the information of another person, including a

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real or fictitious person, with the intent to obtain employment. A.R.S. 13-2009(A)(3).

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Previously, an individual was only punishable under this statute if he or she had bought,

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manufactured or used the identity of five or more persons, or caused the loss of $3,000

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or more. H.B. 2779 expanded the grounds of this Class 3 felony to also include the use

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of false information to work, whether or not the employee used the information of

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additional persons or caused economic loss to any person or entity.


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56.

By contrast, an individual under 21 years of age who uses false

identification to illegally obtain liquor was exempt under the statute and guilty only of a

Class 1 misdemeanor, punishable by up to 6 months. A.R.S. 13-2009(C); 4-241(L),

13-707(A).
57.

Other aspects of H.B. 2779 required employers to use the basic pilot E-

Verify program and imposed sanctions in the form of license suspension on employers

found to have knowingly employed undocumented immigrants.2 The full text of the law,

as enacted, is attached as Exhibit 5 to this Complaint and is incorporated by reference.


58.

Legislators plainly understood that the purpose of H.B. 2779, including the

10

amendments to A.R.S. 13-2009, was to address the employment of undocumented

11

immigrants. Their contemporary statements and legislative fact sheets for the bill

12

reflected this purpose. They wanted to do so specifically because they were dissatisfied

13

with the federal governments handling of the issue.


59.

14

During a House Government Committee hearing on February 20, 2007 at

15

which he appeared to discuss H.B. 2779, Pearce urged members to not wait while we

16

watch the destruction of our country and the destruction of neighborhoods by illegal

17

aliens. Arizona Legislature recording of February 20, 2007 House Government

18

Committee hearing, at approximately 2:55:55. He declared that the feds have not done

19

their job to quell what he described as a national epidemic, and insisted that

20

[Arizona] need[s] to step up to the plate . . . . Id. at approximately 02:56:47 and

21

02:57:54.

22

60.

At a June 20, 2007 Conference Committee hearing, Pearce responded to a

23

proposal that the Legislature delay passage of the bill to resolve some outstanding

24

concerns by stating Its about time we do something. The publics tired of waiting . . .

25

The [corresponding ballot] initiative is out there because of the failure of both the federal

26
27
28

The sanctions on employers later were found permissible under an express savings
clause in 8 U.S.C. 1324. See Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968
(2011) (discussing 8 U.S.C. 1324(h)(2)). There is no savings clause allowing states to
impose penalties on employees.
13

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 15 of 122

government and the state government to do their job . . . and its sad that [Congress is]

working on [amnesty] . . . . This laws needed whether they do something or not and .

. . securing the borders is needed. Arizona Legislature recording of June 20, 2007

Conference Committee hearing at approximately 00:36:38, 00:38:35 and 00:38:55 of.

61.

Just two days before the Conference Committee hearing, Pearce had

forwarded the April 2006 Center for Immigration Studies article identifying

undocumented workers use of false Social Security numbers as a target for the attrition

through enforcement immigration strategy to supporters and, upon information and

belief, colleagues in the Legislature. A copy of the email from Pearce is attached as

10
11
12
13

Exhibit 1 to this Complaint.


62.

Other legislators also voiced their frustration with the perceived failures on

immigration at the federal level and the need to take the issue into their own hands.
63.

During a Senate Committee of the Whole hearing on May 23, 2007 Senator

14

Chuck Gray explained that he was supporting H.B. 2779 because it advances the cause

15

of protecting our citizens against something that the federal government wont do.

16

Arizona Legislature recording of May 23, 2007 Senate Committee of the Whole hearing,

17

at approximately 01:14:46.

18

64.

Proponents of the bill were committed to ensuring that workers under

19

would receive a harsh penalty under the measure, because of their undocumented status

20

and because the provision had to do with immigration.

21

65.

Though being unlawfully present is a civil offense under the immigration

22

laws, some legislators seemed to operate under the assumption that it is a crime. For

23

instance, while addressing a proposed amendment to H.B. 2779 during a House

24

Committee of the Whole hearing on March 15, 2007, Representative Bob Robson

25

emphasized, erroneously, that being in the country illegally is a criminal violation!

26

Arizona Legislature recording of March 15, 2007 House Committee of the Whole

27

hearing, at approximately 00:32:05.

28
14

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 16 of 122

66.

When one Representative, Jorge Luis Garcia, proposed that the bill be

amended to make the offense a Class 6 rather than a Class 3 felony during the May 23,

2007 Senate Committee of the Whole hearing, noting that theres a lot of issues out

there that certainly are much more serious crimes than working here illegally, co-

sponsor Senator Robert Burns, stated I guess the issue of the penalty, and whether the

penalty fits the crime is certainly a worthwhile debate; however, I think the timing on

this particular issue is really critical. At this point, were all aware of the turmoil that has

come out of the [immigration reform] proposal at the federal level. I believe this would

be viewed as a weakening of our opposition to illegal immigration and so for that reason

10

I would oppose the amendment. Arizona Legislature recording of May 23, 2007 Senate

11

Committee of the Whole hearing, at approximately 00:30:30 and 00:33:08.

12

67.

During the same hearing on May 23, 2007, Senator Tom OHalloran stated

13

his intent to make sure workers would be charged with a serious enough crime to

14

guarantee they stay in jail while the case is pending and then be immediately deported.

15

Arizona Legislature recording of May 23, 2007 Senate Committee of the Whole hearing,

16

at approximately 00:57:50. He erroneously believed they could be deported by the State

17

of Arizona. Id. at 00:57:20.

18

68.

The Legislature did not make any findings or conduct any studies

19

regarding the specific financial or other harm to individuals whose identities were used

20

as a result of this activity.

21

69.

Unlike other situations commonly understood as identify theft,

22

undocumented workers do not take money or make purchases in the name of the person

23

whose information they use. In many cases undocumented workers do not know if the

24

information they are using belongs to a real person, and often, the information does not

25

belong to a real person.

26

70.

The legislative proceedings demonstrate that the motivation for Section 1

27

in H.B. 2779 was related to legislators views regarding illegal immigration and not to

28

address identifiable criminal harms of identity theft.


15

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 17 of 122

71.

In signing H.B. 2779 into law, Governor Napolitano also identified the

measure as reflecting state frustration with the federal handling of immigration. She

stated, Immigration is a federal responsibility, but I signed House Bill 2779 because it is

abundantly clear that Congress finds itself incapable of coping with the comprehensive

immigration reforms our country needs. Letter from Janet Napolitano to Jim Weiers

(July 2, 2007), available at http://www.azsos.gov/public_services/Chapter_Laws/2007/

48th_Legislature_1st_Regular_Session/CH_279.pdf.

72.

Napolitano was quoted in news sources as saying, about the bill, Were

dealing somewhat in uncharted territory right now . . . . The states will take the lead, and

10

Arizona will take the lead among the states. Matthew Benson, Governor OKs toughest

11

migrant-hire law in U.S., ARIZ. REPUBLIC, July 3, 2007.

12

73.

With the adoption of H.B. 2779, Arizona had appeased constituents who

13

had expressed hostility and bias against undocumented workers. Champions of the bill

14

included members of the Minuteman Civil Defense Corps, United for a Sovereign

15

America and Protect Arizona NOW.

16

74.

In 2008, backers of H.B. 2779 faced a ballot initiative that they believed

17

would make Arizonas employer sanctions regime more lenient. In a message opposing

18

the initiative, then-Representative Pearce opened with #1 LURE IS JOBS AND

19

ILLEGAL EMPLOYERS; VIOLENT CRIME FOLLOWS ILLEGAL ALIEN

20

CROWD. He continued, IMMIGRANT GANG MEMBERS RARELY MAKE A

21

LIVING AS GANGSTERS, THEY ARE WORK[sic] CONSTRUCTION, AUTO

22

REPAIR, FARMING, LANDSCAPING, AND LOS[sic] SKILLED JOBS, DRUGS,

23

HOME INVASIONS, FALSE DOCUMENTS. A copy of the email is attached as

24

Exhibit 6 to this Complaint.

25

75.

Pearce also returned to the Legislature that year with another bill to amend

26

and supplement the Legal Arizona Workers Act, H.B. 2745. Section 1 of H.B. 2745

27

expanded the Class 4 identity theft statute to punish individuals for using the information

28

of another person, real or fictitious, with the intent to obtain or continue employment.
16

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 18 of 122

A.R.S. 13-2008. A Class 4 felony is punishable by up to 3 years. A.R.S. 13-702(D).

An individual under 21 years of age who uses false identification to illegally obtain

liquor was exempt under the statute. A.R.S. 13-2008(E), 4-241(L), 13-707(A).

76.

H.B. 2745 was passed by the Legislature and signed into law on May 1,

2008. The full text of the law, as enacted, is attached as Exhibit 7 to this Complaint and

is incorporated by reference.

7
8
9

Arizonas Worker Identity Provisions Intrude upon Federal Law


77.

Arizonas passage of laws to penalize undocumented workers use of false

or fictitious identities to obtain or continue employment directly intrudes upon the

10

federal governments exclusive authority in the (federally-created) employment

11

verification process.

12

78.

The scheme Congress created provides a full set of standards designed to

13

work as a harmonious whole. Valle del Sol v. Whiting, 732 F.3d 1006, 1024-25 (9th

14

Cir. 2013), cert. denied, 134 S. Ct. 1876 (2014) (internal quotation omitted).

15

79.

Congresss consolidation of authority over fraud in the employment

16

verification process at the federal level allows authorities to select among available

17

enforcement tools to carry out (and balance) federal objectives. This flexibility is an

18

important feature of the federal scheme.

19

80.

If Arizonas worker identity provisions are allowed to stand, every state

20

could create an independent scheme of prosecution and judicial enforcement outside

21

the control of the federal government . . . . United States v. S. Carolina, 840 F. Supp.

22

2d 898, 926-27 (D.S.C. 2011) (invalidating provision making it a state offense to use a

23

fraudulent identification document for the purpose of establishing lawful presence in the

24

United States), aff'd, 720 F.3d 518 (4th Cir. 2013). This would detract[] from the

25

integrated scheme of regulation created by Congress. Arizona, 132 S. Ct. at 2502

26

(internal quotation omitted).

27
28

81.

Even complementary state regulation is impermissible. In this case,

Arizonas sanctions actually conflict with federal law.


17

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 19 of 122

82.

A.R.S. 13-2008(A) and 13-2009(A)(3) impose different penalties than

federal law and, unlike federal law, fail to distinguish between different types of

fraudulent conduct in the employment verification process.

83.

Arizonas statutes therefore further stand as an obstacle to success of

Congresss chosen calibration of force in accomplishing its purposes and objectives.

Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 380 (2000).

84.

In addition to federal immigration law, A.R.S. 13-2008(A) and 13-

2009(A)(3) frustrate the goals of federal labor and employment law, which Congress

recognized was critical to the success of the employer sanctions regime.

10

85.

During congressional deliberations over IRCA, Congress was acutely

11

aware of the importance of vigorous enforcement of labor protections for workers.

12

Congress explicitly authorized funds for the U.S. Department of Labors (DOLs)

13

Wage and Hour Division to strengthen enforcement of employment standards laws for

14

undocumented workers in IRCA, recognizing that doing so would remove the

15

economic incentive for employers to exploit and use such aliens. IRCA 111(d).

16
17
18

86.

Federal labor and employment law protections apply regardless of

immigration status.
87.

The U.S. Department of Homeland Security (DHS) and the DOL have

19

entered into a Memorandum of Understanding whereby DHS has agreed to refrain from

20

worksite enforcement in cases where employers may be manipulating enforcement

21

activities to gain leverage in a labor dispute. DHS/DOL Revised MOU Between DHS

22

and Labor Concerning Enforcement Activities at Worksites (Mar. 31, 2011).

23

88.

In Arizona, however, the threat of a felony arrest under the worker identity

24

provisions gives unscrupulous employers a hammer to hold over the head of workers

25

who would otherwise seek to enforce their labor rights.

26
27

89.

Arizonas worker identity provisions also contravene federal anti-

discrimination law.

28
18

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 20 of 122

1
2
3

90.

For example, the 1870 Civil Rights Act specifically sought to protect

foreign nationals from sub-federal discrimination.


91.

Codified today at 28 U.S.C. 1981, Section 16 of the 1870 Civil Rights

Act emphasized that all persons . . . shall be subject to like punishment, pains, penalties

. . . . 28 U.S.C. 1981 (emphasis added). Codified today at 18 U.S.C. 242, Section 17

of the Act prohibited any person under the color of [] law from subjecting any person

within a state to different punishments, pains or penalties, on account of such person

being an alien . . . . 18 U.S.C. 242 (emphasis added).

9
10
11
12
13
14
15

92.

The Fourteenth Amendment to the U.S. Constitution also guarantees that

all persons receive equal protection of the laws.


93.

In recasting Arizonas identity theft statutes to target undocumented

workers, the Legislature acted in a discriminatory fashion.


94.

The language and history of Section 1 of H.B. 2779 and Section 1 of H.B.

2745 demonstrate the Legislatures intent to punish on the basis of alienage.


95.

As candidly acknowledged by their author and primary sponsor, the

16

purpose of these measures was to make conditions so unbearable for undocumented

17

workers that they would voluntarily self-deport.

18
19
20
21
22

96.

In passing these measures, the Arizona Legislature acted on a desire to

harm a politically unpopular group.


97.

The Legislature played on and gave effect to private fears and prejudice

against undocumented immigrants.


98.

Further, legislators refused to consider any lighter penalty for

23

undocumented workers because such a move would be viewed as a weakening of our

24

opposition to illegal immigration. Perception of Arizonas position on the federal issue

25

of illegal immigration is not a legitimate state interest that could justify differential

26

treatment on the basis of alienage.

27
28

99.

Arizonas worker identity provisions violate federal anti-discrimination

protections.
19

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 21 of 122

1
2

Maricopa County Defendants Campaign to Criminally Punish Undocumented


Workers
100.

Since 2008 or earlier, Defendants Arpaio, Montgomery and Maricopa

County (the Maricopa County Defendants) have had a policy, practice or custom of

enforcing the worker identity provisions and Arizonas forgery statute against

undocumented immigrants.

101.

The purpose and effect of the Maricopa County Defendants policy,

practice or custom has been to regulateindependent of federal policies and priorities

the use of false information or documents by undocumented immigrants to circumvent

the federal employment verification system.

10

102.

For example, in 2008, the MCSO began conducting worksite enforcement

11

operations based on the newly enacted worker identity provisions and Arizonas forgery

12

statute.

13

103.

MCSO conducted these worksite enforcement operations through a

14

specialized unit focused on illegal immigration, called the Human Smuggling Unit

15

(HSU).

16

104.

The HSU was created in or around 2006. In 2008, after the Legal Arizona

17

Workers Act was passed, MCSO tasked one of three HSU squads with enforcement of

18

illegal immigration laws in the workplace. The squad was originally called the Employer

19

Sanctions Unit. Its name was later changed to the Criminal Employment Squad and then

20

to the Criminal Employment Unit.

21

105.

The work of the Criminal Employment Unit and its predecessor units

22

involved investigating undocumented immigrants who used false information or

23

documents to show federal authorization to work.

24

106.

The MCSOs worksite operations were part of a larger campaign by the

25

Sheriffs Office to crack down on illegal immigration. In a March 15, 2008 news brief

26

from the MCSO announcing the arrest of an employee for identity theft and forgery, the

27

Sheriff stated, My Office will continue cracking down on illegal immigration[.]

28
20

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 22 of 122

Sheriffs deputies will continue to investigate crimes in the work place related to illegal

immigration . . . .

107.

In a December 10, 2011 news release announcing a raid on a Chandler

restaurant, Sheriff Arpaio stated that 100% of all suspects [of] identity theft to gain

employment in worksite operations to date had been illegal aliens. In a September 20,

2012 news release, he stated that he viewed arrests of illegal aliens using fake names

and false social security numbers as open[ing] up employment opportunities for those

who are in this country legally.

108.

Sheriff Arpaio had significant personal involvement in the work of the

10

Criminal Employment Unit and its predecessor units. He was briefed on and attended

11

most major operations, as well as some smaller operations.

12

109.

The operations were also publicized by the Sheriffs Office. Arpaios head

13

of media relations, Lisa Allen, has stated that for the MCSO, immigration enforcement

14

was an awful lot of, you know, identity theft and so forth. Allen Dep. 28:17-20, Mar.

15

31, 2014, in United States v. Maricopa County, No. 2:12-cv-00981-ROS (D. Ariz.).

16

110.

In a December 10, 2011 news release announcing a raid on a Chandler

17

restaurant, Sheriff Arpaio stated that 100% of all suspects [of] identity theft to gain

18

employment in worksite operations to date had been illegal aliens. In a September 20,

19

2012 news release, he stated that he viewed arrests of illegal aliens using fake names

20

and false social security numbers as open[ing] up employment opportunities for those

21

who are in this country legally.

22

111.

Sheriff Arpaio focused his agencys illegal immigration program on

23

immigrants from Mexico and Latin America. Anti-Hispanic sentiment had fueled his

24

constituents call to channel the agencys law enforcement resources towards the

25

immigration issue.

26

112.

27

Sheriff Arpaio set up an illegal immigration hotline for members of the

public to call and provide tips about suspected undocumented immigrants who were

28
21

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 23 of 122

working. He also applied for a 287(g) agreement with DHS to cross-certify 160 officers

to arrest individuals based on a suspected violation of the federal immigration laws.

3
4
5

113.

The MCAO, for its part, designated a specialized unit to prosecute cases of

employees using false information and documents to workthe Special Crimes Bureau.
114.

The Special Crimes Bureau worked closely with the MCSOs Criminal

Employment Unit and its predecessor units in a concerted effort to pursue cases against

undocumented workers. Members of the two units would meet regularly about MCSOs

worksite operations.

115.

The Special Crimes Bureau also prosecuted cases of undocumented

10

workers using false information and documents to work referred by other law

11

enforcement agencies.

12

116.

The MCAO has a separate unit called the Fraud and Identity Theft

13

Enforcement (FITE) Bureau, which was created to prosecute fraud, identity theft and

14

forgery. However, since approximately 2008, MCAO has handled identity theft and

15

forgery cases involving employment through the Special Crimes Bureau rather than the

16

FITE Bureau.

17

117.

The Special Crimes Bureau carries out the offices immigration-related

18

enforcement mission. The MCAO webpage for the Special Crimes Bureau states, in

19

relevant part, that it prosecutes, [i]llegal immigrant crimes, which involve illegal

20

immigrants accused of . . . the use of a stolen Social Security account or other

21

identification in order to get a job in the United States (Employment Identity Theft).

22

Maricopa County Attorneys Office, Special Crimes, available at

23

http://www.maricopacountyattorney.org/prosecuting-criminals/organized-crime/special-

24

crimes/.

25

118.

According to the longtime former chief of MCAOs Special Crimes

26

Bureau, Vicki Kratovil, prosecution of employees was part of the focus of the offices

27

enforcement of the Legal Arizona Workers Act because every unauthorized worker who

28
22

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 24 of 122

is working is committing state criminal offenses. Kratovil Dep. 51:15-24, Sept. 21,

2010, in Mora v. Arpaio, No. CV09-01719-PHX-DGC (D. Ariz.).

119.

When MCSO began prosecuting cases of undocumented immigrants using

false information and documents in employment, the office was headed by former

County Attorney Andrew Thomas.

120.

While campaigning for his re-election in 2008, speaking about

immigration, Thomas assured voters that he would work tirelessly to protect our

neighborhoods from those who threaten us and violate our laws. Andrew Thomas,

County Attorney stands up for you, ARIZ. REPUBLIC, Sept. 26, 2008 (emphasis added). He

10
11

declared, I will not treat illegal immigrants as a protected class . . . . Id.


121.

In 2010, there was a change in leadership at the MCAO. The interim

12

County Attorney Rick Romley decided to stop sharing state funds that Arizona had

13

allocated to Maricopa County for enforcement of the Legal Arizona Workers Act with

14

the MCSO.

15

122.

In response to Romleys decision, Sheriff Arpaio shifted funds from other

16

parts of his agencys budget in order to continue conducting worksite operations. He was

17

adamant that there be no change. That is when the MCSO changed the name of the unit to

18

the Criminal Employment Squad to focus explicitly on employees.

19

123.

While he was campaigning for office in 2010, now County Attorney Bill

20

Montgomery also signaled a commitment to making Maricopa County inhospitable to

21

undocumented immigrants and vowed to resume working with the MCSO on worksite

22

operations. Upon taking office in 2010, he restored the policy of systematically enforcing

23

the worker identity provisions and forgery statute against undocumented workers.

24

124.

In a 2013 interview, Montgomery stated that he would continue to enforce

25

the state identity theft and forgery laws as long as Arizonas border with Mexico remains

26

insecure. He continued, The federal government could take away all of my concerns

27

tomorrow, by simply securing the border and doing what they have a responsibility to do.

28

. . . I would be more than happy to deal with other offenses, and violations of other
23

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 25 of 122

statutes. But unless and until they do their job, I have to do mine. Jude Joffe-Block,

Police in Arizona crack down on identity theft by immigrants, KPCC, Jan. 7, 2013.

Details of Worker Identity and Forgery Investigations


125.

MCSOs worksite operations would typically begin with a citizen tip to the

Offices illegal immigration hotline that undocumented workers were employed at a

particular business. MCSO detectives would conduct an investigation, often obtaining

copies of wage reports that an employer files with the Arizona Department of Economic

Security (DES) containing names and Social Security numbers reported for employees

and comparing that information against information found in other databases.


126.

10

With the information from the DES reports and database checks, MCSO

11

would then contact the Social Security Administration (SSA) and ask that agency to

12

identify which employees names and Social Security numbers matched information SSA

13

had on file and which did not. With the information it received back from the SSA,

14

MCSO would obtain a search warrant for a business, alleging violations of A.R.S. 13-

15

2002, 13-2008(A) and 13-2009(A)(3).


127.

16

MCSO executed search warrants with a show of force and regularly sent

17

hundreds of deputies and posse members, including tactical and K-9 units, to descend

18

upon a business. Workers were usually held incommunicado for hours while deputies

19

sorted through employee records and questioned them about their identity and

20

immigration status.

21

128.

Until October 2009, those workers who could not be charged criminally

22

were arrested by MCSO on administrative immigration charges and processed for

23

deportation.3
129.

24
25

Many workers, however, were arrested on state felony charges of identity

theft and forgery and prosecuted.

26
27
28

DHS terminated the MCSOs street-level 287(g) authority on October 16, 2009 after the
DOJ found that the agency was engaged in a pattern and practice of discriminatory
policing and other civil rights violations.
24

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 26 of 122

130.

Workers were given forgery charges for using false personal identifying

information on forms such as the Form I-9, as well as other employment documents.

Workers usually use a Social Security number on the Form I-9 to show eligibility for

employment and that same number will then be used on other forms for consistency.

Forgery charges were also brought against undocumented workers for presenting a false

drivers license or immigration documents during the employment verification process.


131.

MCSO would regularly arrest undocumented workers under the worker

identity provisions and forgery statute together. The Criminal Employment Unit kept a

single tally of the number of employees arrested under both charges and the Unit

10

generally did not have forgery cases other than those involving the use of false

11

information or documents in order to obtain employment. The MCAO would regularly

12

prosecute undocumented workers under both provisions as well.


132.

13

By charging undocumented workers under these statutes, MCSO and

14

MCAO could ensure that they would be categorically disqualified from pretrial bail

15

pursuant to another harsh Pearce immigration measure, Proposition 100.4


133.

16

Though there have been some changes to how MCSO and MCAO have

17

conducted these investigations in the intervening years, such as the source of tips and

18

how many workers are arrested at once, the basic goal of the operations remained the

19

sameto arrest and punish undocumented workers using false information or

20

documents for employment.


134.

21

Since 2008, the MCSO has conducted over 80 worksite operations,

22

arresting nearly 790 workers. The vast majority of these were arrested for identity theft

23

and forgery.

24
25
26
27
28

Proposition 100 and its implementing statutes prohibited Arizona courts from setting
pretrial bail for persons charged with a Class 1-4 felony who ha[ve] entered and
remained in the United States illegally. The measure was overturned as unconstitutional
on October 15, 2014. Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir.) (en banc).
25

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 27 of 122

135.

In the same period, Maricopa County has brought only five actions against

employers. Three of those actions were civil, resulting in business license suspensions of

10 days or less, and two were criminal.

136.

MCSO and MCAOs method of enforcing A.R.S. 13-2002, 13-2008(A)

and 13-2009(A)(3) against undocumented workers has instilled great fear in the

immigrant community.

137.

Rather than being secondary to employer sanctions, Maricopa Countys

worksite enforcement strategy has been to almost exclusively target workers, detain

them without possibility of bail and pressure them into signing felony pleas.

10
11
12

138.

Maricopa Countys practices have given employers unchecked power over

workers.
139.

Sometimes, an employer is aware that a worker is undocumented and has

13

used false or fictitious information to obtain work; an employer may even provide the

14

information or fill it in for workers. Yet employers know it will likely be the worker who

15

is arrested if the discrepancy were to be discovered (or be reported by the employer).

16

140.

Volunteers and staff with Puente have observed what seems to be an

17

increase in labor abuse and greater hesitation on the part of workers to report labor

18

violations in Maricopa County.

19

Enforcement Practices Since Filing of This Lawsuit

20

141.

As recently as 2014, Sheriff Arpaio publicly announced his continuing

21

commitment to vigorous enforcement of the worker identity provisions and forgery

22

statute against undocumented workers.

23

142.

In March 2014, Arpaio stressed to a group of supporters, Now, theyre

24

clamping down, all these rulings from judges . . . But I still enforce the illegal

25

immigration laws by virtue of going into businesses and locking up the employees with

26

fake ID. He continued, confirming his understanding of the identity theft laws as an

27

immigration enforcement tool, [W]e do know that 99.9 percent are here illegally, we

28

know that, but they are not charged with that, they are stealing your ID. Statement of
26

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 28 of 122

Sheriff Joe Arpaio, MN Tea Party Special Event, March 6, 2014, available at

https://www.youtube.com/watch?v=LFd-Xxrl5qw, at minute 51:04.

143.

When this lawsuit was filed, Sheriff Arpaio reiterated his commitment to

continuing enforcement so long as he was the Sheriff, stating, [T]here is no sanctuary in

Maricopa County. Megan Cassidy, Lawsuit challenges Arpaios workplace raids, ARIZ.

REPUBLIC, June 18, 2014.

144.

Defendant Arpaios notice did not address the MCSOs use of the forgery

statute against undocumented workers and it did not explain whether deputies outside of

the Criminal Employment Unit would continue to enforce the worker identity provisions.

10

Defendant Arpaio provided no indication of how long MCSOs voluntary change in

11

policy would last or whether it might be rescinded in the future

12

145.

After the preliminary injunction hearing in this lawsuit, and before the

13

Court issued a decision, the MCSO announced its apparent intention to disband the

14

Criminal Employment Unit in early 2015. Defendant Arpaio filed a notice with the Court

15

arguing that because the MCSO had voluntarily enjoined themselves from enforcing

16

the worker identity provisions, no preliminary injunction was necessary.

17

146.

In an official written statement issued by the MCSO on December 18,

18

2014, Sheriff Arpaio warned that notwithstanding disbandment of the Criminal

19

Employment Unit, ID theft and ID fraud remain[] . . . offenses under Arizona Revised

20

Statutes and that his deputies would continue to investigate these crimes.

21

147.

After this lawsuit was filed, and before the Court issued a decision on

22

Plaintiffs motion for a preliminary injunction, the MCAO issued a policy prohibiting

23

prosecutors from further using the Form I-9 as the basis for identity theft and forgery

24

charges. The new policy did not address any other information or documents submitted

25

by workers to circumvent the federal employment verification system.

26
27

148.

Since the Court issued its preliminary injunction barring Defendants from

enforcing the worker identity provisions, MCAO has begun withdrawing charges under

28
27

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 29 of 122

the worker identity provisions but, in many cases, has continued to prosecute the same

underlying conduct under Arizonas forgery statute.


149.

Montgomery and the MCAO have indicated an intention to vigorously

pursue forgery prosecutions against employees. For example, after a Maricopa County

Superior Court, relying on the reasoning of this Courts preliminary injunction,

dismissed forgery and identity theft charges against an employee who was alleged to

have submitted a fraudulent Arizona drivers license for employment, MCAO filed a

motion to reconsider arguing that it could constitutionally prosecute employees under

the forgery statute for the same conduct so long as it did not rely on the Form I-9. A

10

drivers license is one of the documents employees show to prove identity in the federal

11

employment verification system.


150.

12

MCAOs policy does not consider a persons immigration status or his or

13

her status as a victim of labor violations in determining whether or not to decline to

14

prosecute a case.

15

151.

The Maricopa County Defendants policies, practices and customs deprive

16

federal authorities of the exclusive power to prosecute (or decide not to criminally

17

prosecute) undocumented workers.


152.

18

Upon information and belief, the MCSO is continuing to detain

19

undocumented workers on forgery charges in the Maricopa County Jail. The Maricopa

20

County Defendants continue to expend local tax revenues on investigating, prosecuting

21

and incarcerating undocumented immigrants for using false information or documents to

22

work.
Impact on the Immigrant Community and Puentes Response

23
24
25
26
27
28

Plaintiff Puente Arizona


153.

Puente is a grassroots organization based in Phoenix, Arizona, with

hundreds of members, the vast majority of whom are immigrants.


154.

Migrants, particularly undocumented immigrants and immigrants in mixed

status families, face significant stigma and barriers to social and economic integration.
28

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To fulfill its mission of developing, educating and empowering immigrants to enhance

their quality of life, Puente provides a variety of services to the community, including

English classes, media trainings, know-your-rights workshops, health and wellness

training, and educational programs for children. Puente also offers cultural events,

including concerts, film screenings, and an annual Day of the Dead celebration.

155.

Puentes members play a central role in setting the organizations

direction, priorities, and activities. Primary decision-making happens at Puentes weekly

meetings, which are open to all members and program participants. In addition, Puente

holds membership retreats twice a year. As an organization, Puente represents its

10
11

members collective interests and expresses their collective views.


156.

The Maricopa County Defendants enforcement of Arizonas worker

12

identity provisions and forgery statute has heavily impacted Puentes work and

13

frustrated its mission.

14

157.

The climate of fear caused by enforcement directly interferes with

15

Puentes efforts to develop and empower the immigrant community. For example, many

16

workers who participate in Puentes know-your-rights trainings are reluctant to exercise

17

labor rights for fear of arrest and prosecution under Arizonas laws.

18

158.

The climate of fear created by the enforcement operations has also led

19

immigrants to retreat from public life. Some are even reluctant to leave their homes,

20

including to participate in Puente events and activities.

21

159.

The jailing of heads of familiesmany of whom play important roles in

22

local churches, schools, and community organizationshas also frayed the social fabric

23

and made it difficult for Puente to build a strong community. Families of arrested

24

individuals struggle to get by without their primary breadwinners, which lowers not just

25

their own capacity, but that of other community members to whom they are forced to

26

turn for support. The enforcement operations have affected community members of all

27

ages, from all walks of life.

28
29

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 31 of 122

160.

For example, in June 2009, then-9-year-old Katherine Figueroa was

playing at home when she overheard a TV news anchor announce that the carwash

where her parents worked had just been raided. She rushed to the TV and watched in

horror as MCSO deputies arrested her mother, Sandra Figueroa, and her father, Carlos

Figueroa. The MCSO charged her parents with using false documents to work and

incarcerated both of them in the County Jail for the next several months. Without her

parents, Katherine was forced to rely on extended family and friends for support.

8
9

161.

More recently, in January 2013, 22-year-old Noemi Romero was arrested

by MCSO deputies while working as a cashier at Lams Supermarket. Noemi, who grew

10

up in the United States, was working in order to raise money to pay the application fee

11

for the federal governments Deferred Action for Childhood Arrivals (DACA)

12

program, which provides certain undocumented young people with work authorization

13

and a reprieve from deportation. Noemi dreamed of one day working in nursing or

14

cosmetology. Her dreams were shattered when MCSO raided Lams Supermarket just

15

days after shed finally managed to save enough money for the application, arrested her

16

and charged her with using a false identity to work. The identity information Noemi

17

used belonged to her mother. Noemis felony conviction now disqualifies her from the

18

DACA program. Unable to work or go to college, Noemi lives at home with her parents.

19

162.

63-year-old Marta Espinoza Lopez was arrested by MCSO deputies in

20

February 2013 while she was working as a seamstress at Sportex Apparel. Marta had

21

worked at Sportex for 12 years. She had used her earnings to support herself and to put

22

her children through college in Mexico. She was arrested during an MCSO raid on

23

Sportex for using a fictitious identity to work. She spent four months in County Jail and

24

was subsequently transferred to immigration detention. Upon her release, Marta found

25

she had nothing. When she hadnt returned home after the raid, her landlord sold all her

26

possessions and rented the apartment to someone else. Marta was forced to rely on

27

friends and community organizations, including Puente, for support.

28
30

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163.

1
2

raid of Sportex.
164.

3
4

One of Puente's core organizers also had an uncle arrested in the MCSO

Seeing the impact that the Maricopa County Defendants practices were

having on the community with which Puente works, Puente was compelled to respond.
165.

Puente has provided affected workers and families with childcare,

temporary housing, emergency financial assistance, essential information about the

criminal process, access to legal services, and critical social and moral support.

Additionally, Puente brings family members to visit their loved ones in detention and

purchased a van for this purpose. Finally, Puente advocates on behalf of arrested

10

workers in order to try to secure their release and reunite them with their families.
166.

11

Because of the resources Puente diverted toward providing this assistance,

12

the organization had to cut back on its free English classes, health and wellness projects,

13

and other core services. Future enforcement actions will again require Puente to divert

14

scarce resources towards assisting affected workers and families.


167.

15

Puentes membership continues to include a significant number of

16

immigrants who are at risk of being investigated, arrested, detained and/or prosecuted by

17

the Maricopa County Defendants under A.R.S. 13-2002, 13-2008(A) and 13-

18

2009(A)(3). Some undocumented Puente members are working to provide for themselves

19

and their families and have used false identity information and documents in order to

20

obtain or continue employment.


168.

21

Puente members who have used false identity information and documents

22

in order to obtain or continue employment live in constant fear that they may be arrested

23

and prosecuted under A.R.S. 13-2002, 13-2008(A) and 13-2009(A)(3) at any time.

24

Many worry every morning when they leave for work that they may not come home that

25

night.

26

169.

Puente brings this suit on behalf of itself and on behalf of its members who

27

face a likelihood of future injury due to the Maricopa County Defendants practices.

28

Because Plaintiffs seek injunctive relief and their claims are not dependent on detailed
31

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 33 of 122

facts unique to each individual, individual participation by Puente members is not

necessary. Given the climate of fear surrounding enforcement of A.R.S. 13-2001, 13-

2008(A) and 13-2009(A)(3), it is unlikely any would come forward to assert their rights

if their individual participation were required.


170.

Puente has no relevant conflicts of interest with its individual members.

Puentes pursuit of this litigation is pertinent to the organizations mission of

developing, educating and empowering the local immigrant community.

Plaintiff Sara Cervantes Arreola


171.

Sara Cervantes is a 27-year-old resident of Glendale, Arizona. She is the

10

mother of two young children, ages six and five months. Until January 2013, she worked

11

in the produce department at Lams Supermarket to support herself and her young son

12

and had never been charged with or convicted of any crime.


172.

13

On January 17, 2013, MCSO deputies conducted a worksite raid on Lams

14

Supermarket while Ms. Cervantes and others were working. Deputies cleared the store

15

of customers and then blocked the store exits, gathered all the workers together, and

16

demanded they produce identification. Deputies ultimately arrested Ms. Cervantes along

17

with approximately eight other Latino employees.


173.

18

Ms. Cervantes was charged with using a false identity to work. She was

19

detained at the County Jail and denied the opportunity for bail pursuant to Proposition

20

100.

21

174.

On March 18, 2013, after approximately two months in jail, Ms. Cervantes

22

pled guilty to one count of aggravated taking the identity of another with intent to obtain

23

employment under A.R.S. 13-2009, a Class 3 felony.

24

175.

Ms. Cervantes was sentenced on May 6, 2013. As the Superior Court

25

found, there [was] no victim in this case because Ms. Cervantes had used information

26

belonging to a fictitious person. The court sentenced her to 109 days in jail, with credit

27

for time served, and twelve months probation.

28
32

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 34 of 122

176.

On November 5, 2013, Ms. Cervantes was granted an early termination of

probation upon the recommendation of her Probation Officer and released from

probation. In total, following her guilty plea on March 18, 2013, Ms. Cervantes spent 59

days in jail and six months on probation.

5
6
7

177.

Ms. Cervantes length of incarceration and probation rendered federal

habeas relief unavailable to her.


178.

Upon information and belief, it takes the Arizona Court of Appeals,

Division One, approximately one year or longer from the date of filing to decide a

criminal appeal. It takes the Arizona Supreme Court approximately four to six months to

10

decide whether or not to hear a case following a Court of Appeals decision, and an

11

additional three to six months to decide the appeal.

12

179.

Given the length of the Arizona appellate process and the length of her

13

sentence, it was impossible for Plaintiff Cervantes to exhaust state remedies, much less

14

file and prevail on a federal habeas petition while she was in custody.

15

180.

Ms. Cervantes feels as if her felony conviction has marked her life forever.

16

She believes that people in her community now look at her differently. She worries that

17

the conviction will negatively impact her in the event she is ever stopped or detained by

18

police in the future, and may impact her chances for future immigration relief.

19

Plaintiff Elia Estrada Fernandez

20
21
22
23
24
25
26
27

181.

Plaintiff Elia Estrada is a resident of Mesa, Arizona. She has three young

children, ages 12, 4, and 8 months.


182.

From 2013 to 2014, Ms. Estrada worked at Arbys located in Chandler,

Arizona to support her family. She worked most of the time as a cook.
183.

On September 22, 2014, Ms. Estrada was arrested by the Gilbert Police

Department and charged with using a false identity to work.


184.

After her arrest, Ms. Estrada was detained at the Maricopa County Jail for

63 days, having been denied the opportunity for bail pursuant to Proposition 100.

28
33

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185.

Ms. Estradas case was prosecuted by the Maricopa County Attorneys

Office. On October 28, 2014, Ms. Estrada pled guilty to one count of aggravated taking

the identity of another with intent to obtain employment under A.R.S. 13-2009, a Class

3 felony.

5
6
7
8
9

186.

Ms. Estrada had never previously been charged with or convicted of any

187.

Ms. Estrada was sentenced on November 26, 2014. The court sentenced her

crime.

to six months of probation.


188.

In total, following her arrest on September 22, 2014, Ms. Estrada spent

10

approximately two months in jail and six months on probation. After her sentencing, she

11

did not serve any additional time in jail.

12
13
14

189.

Ms. Estradas length of incarceration and probation made federal habeas

relief unavailable to her.


190.

Upon information and belief, it takes the Arizona Court of Appeals,

15

Division One, approximately one year or longer from the date of filing to decide a

16

criminal appeal. It takes the Arizona Supreme Court approximately four to six months to

17

decide whether or not to hear a case following a Court of Appeals decision, and an

18

additional three to six months to decide the appeal.

19

191.

Given the length of the Arizona appellate process and the length of her

20

sentence, it was impossible for Plaintiff Estrada to exhaust state remedies, much less file

21

and prevail on a federal habeas petition while she was in custody.

22

192.

Ms. Estrada worries that her family and community will think of her as a

23

bad person because of her felony conviction for working to provide for her family. She

24

feels stigma and shame from the conviction. In addition, she believes that the conviction

25

will negatively impact her in the event she ever comes in contact with police in the

26

future, and may impact her chances for future immigration relief.

27

Plaintiff Reverend Susan Frederick-Gray

28

193.

Reverend Susan E. Frederick-Gray is a Maricopa County taxpayer.


34

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 36 of 122

1
2
3

194.

Rev. Frederick-Gray objects to the use of county taxpayer funds to enforce

A.R.S. 13-2002, 13-2008(A) and 13-2009(A)(3) against undocumented workers.


195.

Rev. Frederick-Gray is challenging the enforcement of A.R.S. 13-2002,

13-2008(A) and 13-2009(A)(3) by Maricopa County Defendants as an illegal

expenditure of county taxpayer funds.

196.

She believes that the expenditure of taxpayer funds to punish individuals

who are working to provide for their families and not intending to harm other persons

does not serve the public good. Those funds could instead be spent on essential public

services.

10
11
12
13

Plaintiff Reverend Russell Andrew Burnette


197.

Reverend Russell Andrew Burnette is a resident of Phoenix, Arizona and a

Maricopa County taxpayer.


198.

Rev. Burnette objects to the use of county taxpayer funds to enforce A.R.S.

14

13-2002, 13-2008(A), and 13-2009(A)(3) against undocumented workers. Among

15

other taxes, he pays property taxes to the County, as well as excise taxes and sales taxes

16

that help fund the operation of County jails.

17

199.

He believes that the expenditure of taxpayer funds to punish individuals

18

who are working to provide for their families and not intending to harm other persons

19

does not serve the public good.

20

200.

Rev. Burnette is challenging the Maricopa County Defendants

21

enforcement of A.R.S. 13-2002, 13-2008(A), and 13-2009(A)(3) as an illegal

22

expenditure of county taxpayer funds.

23

Plaintiff Reverend Erin Tamayo

24

201.

25

County taxpayer.

26

202.

27

Reverend Erin Tamayo is a resident of Mesa, Arizona and a Maricopa

Rev. Tamayo objects to the use of county taxpayer funds to enforce A.R.S.

13-2002, 13-2008(A), and 13-2009(A)(3) against undocumented workers. Among

28
35

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 37 of 122

other taxes, she pays property taxes to the County, as well as excise taxes and sales taxes

that help fund the operation of County jails.

203.

Rev. Tamayo believes that the expenditure of taxpayer funds to punish

individuals who are working to provide for their families and not intending to harm other

persons does not serve the public good.

204.

Rev. Tamayo is challenging the Maricopa County Defendants enforcement

of A.R.S. 13-2002, 13-2008(A), and 13-2009(A)(3) as an illegal expenditure of county

taxpayer funds.

9
CLASS ACTION ALLEGATIONS

10
11

205.

Plaintiffs Puente, Frederick-Gray, Tamayo, and Burnette bring this action

12

as a class action seeking declaratory and injunctive relief under Federal Rule of Civil

13

Procedure 23(b)(2) on behalf of themselves and all others similarly situated.


a.

14

Plaintiff Puente seeks to represent a class of undocumented workers

15

who will be subject to arrest, detention or prosecution by the

16

Maricopa County Defendants under Arizonas worker identity

17

provisions and forgery statute (the worker class).


b.

18

Plaintiffs Frederick-Gray, Tamayo, and Burnette seek to represent a

19

class of all persons who pay taxes to Maricopa County and object to

20

the use of county tax funds to investigate, arrest, detain or prosecute

21

individuals under Arizonas worker identity provisions and forgery

22

statute (the taxpayer class).

23
24
25

206.

The proposed classes are so numerous that joinder of all members is

impracticable.
207.

There are questions of law and fact common to the proposed classes,

26

including (1) whether Arizonas worker identity provisions are preempted by federal

27

law; (2) whether Arizonas worker identity provisions deprive members of the worker

28

class of the equal protection of the laws within the meaning of the Fourteenth
36

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 38 of 122

Amendment to the U.S. Constitution; and (3) whether the Maricopa County Defendants

policy, practice or custom of using the worker identity provisions and forgery statute to

regulate fraud by undocumented immigrants in employment is preempted by federal

law.
208.

5
6

claims and defenses of their respective classes.


209.

7
8

The claims and defenses of the representative Plaintiffs are typical of the

The representative Plaintiffs will fairly and adequately protect the interests

of the respective classes.


210.

Plaintiffs counsel are competent and experienced in class action litigation

10

of the type brought here. Plaintiffs are represented pro bono by the University of

11

California, Irvine School of Law Immigrant Rights Clinic, the ACLU Foundation of

12

Arizona, the National Day Laborer Organizing Network and the Law Office of Ray A.

13

Ybarra Maldonado PLC, who collectively have extensive experience with litigation,

14

including class action litigation, regarding the rights of immigrants and constitutional

15

law.

16

211.

Defendants in this case have acted and will continue to act in violation of

17

proposed class members rights, which are grounds generally applicable to the classes,

18

thereby making appropriate final injunctive relief and corresponding declaratory relief

19

with respect to the classes as a whole.

20
REQUISITES FOR RELIEF

21
22
23
24
25
26

212.

As a result of the conduct of Defendants described above, Plaintiffs have

been denied their constitutional rights.


213.

In violating Plaintiffs constitutional rights, Defendants have and will

continue to act under color of law.


214.

An actual and substantial controversy exists between Plaintiffs and

27

Defendants as to their respective legal rights and duties. Defendants policies, practices,

28

conduct and acts alleged herein have resulted and will continue to result in irreparable
37

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 39 of 122

injury to Plaintiffs, including but not limited to further violations of their constitutional

rights.

215.

Plaintiffs have no plain, speedy or adequate remedy at law to address the

wrongs described herein. Plaintiffs therefore seek injunctive relief restraining

Defendants from continuing to enforce and engage in the policies, practices and customs

described herein.

CLAIMS FOR RELIEF

First Claim For Relief

Supremacy Clause; 42 U.S.C. 1983


(Against All Defendants)

10
11
12
13
14

216.

set forth here.


217.

The Supremacy Clause, Article VI, Section 2, of the U.S. Constitution

provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the
Constitution of Laws of any State to the Contrary notwithstanding.

15
16
17

The above paragraphs are hereby incorporated by reference as though fully

218.

The Supremacy Clause mandates that federal law preempts state law in

18

any area over which Congress expressly or impliedly has reserved exclusive authority or

19

which is constitutionally reserved to the federal government, or where state law conflicts

20

or interferes with federal law.

21

219.

In enacting Section 1 of H.B. 2779 and Section 1 of H.B. 2745, amending

22

A.R.S. 13-2008(A) and 13-2009(A), Arizona impermissibly intruded on the federal

23

governments exclusive authority to regulate immigration, legislating in a field occupied

24

by the federal government and imposing burdens and penalties on noncitizens not

25

authorized by and contrary to federal law and policy, all in violation of the Supremacy

26

Clause.

27
28
38

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 40 of 122

220.

1
2

Arizonas worker identity provisions are therefore facially preempted and

Defendants may not enforce them.


221.

The Maricopa County Defendants have a policy, practice and custom of

using Arizonas worker identity and forgery provisions to arrest and prosecute

undocumented workers for using false information to show federal authorization to work.

Such arrests and prosecutions intrude on the federal governments exclusive authority to

regulate immigration and disrupt a carefully aligned federal scheme of regulation of

immigration and employment, thus violating the Supremacy Clause in application.

Second Claim For Relief

10

Equal Protection, U.S. Const., Fourteenth Amendment; 42 U.S.C. 1983


(Against All Defendants)

11

222.

12
13

The above paragraphs are hereby incorporated by reference as though fully

set forth here.


223.

14

The Fourteenth Amendment to the U.S. Constitution provides that [n]o

15

State shall . . . deny to any person within its jurisdiction the equal protection of the

16

laws.

17

224.

Section 1 of H.B. 2779 and Section 1 of H.B. 2745, amending A.R.S.

18

13-2008(A) and 13-2009(A), constitute impermissible discrimination against noncitizens

19

on the basis of alienage.

20
21
22

225.

Defendants cannot establish that Sections 1 of H.B. 2779 and H.B. 2745

had any valid justification, including a rational basis.


226.

Arizonas worker identity provisions therefore violate the equal protection

23

clause of the Fourteenth Amendment to the U.S. Constitution and Defendants may not

24

enforce them.

25
PRAYER FOR RELIEF

26
27
28

227.
a.

Plaintiffs respectfully request that the Court grant the following relief:
Enter a judgment declaring that the portion of A.R.S. 13-2008(A) that
39

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 41 of 122

addresses actions committed with the intent to obtain or continue

employment and 13-2009(A)(3) violate the Supremacy Clause and the

Equal Protection Clause of the Fourteenth Amendment of the United

States Constitution;

b.

Enter a judgment declaring that the Maricopa County Defendants

policy, practice or custom of using state statutes, including A.R.S. 13-

2002, 13-2008(A) and 13-2009(A)(3), to independently regulate fraud

committed by undocumented immigrants to circumvent the federal

employment verification process violates the Supremacy Clause of the


United States Constitution;

10
11

c.

Enter a permanent injunction prohibiting the Maricopa County

12

Defendants from further enforcing the portion of A.R.S. 13-2008(A)

13

that addresses actions committed with the intent to obtain or continue

14

employment and 13-2009(A)(3);

15

d.

Enter a permanent injunction prohibiting the Maricopa County

16

Defendants from further using state statutes, including A.R.S. 13-

17

2002,

18

undocumented workers who submit false information or documents for

19

the purpose of showing federal authorization to work;

20

e.

13-2008(A)

and

13-2009(A)(3),

to

criminally

punish

Issue an injunction ordering Defendants to expunge from their records

21

the arrests and convictions of Plaintiffs Cervantes and Estrada under

22

A.R.S. 13-2009(A)(3), and to forward a copy of this order to any

23

person or agency that was notified of said arrests or convictions;

24

f.

U.S.C. 1988; and

25
26

Award attorneys fees and costs of suit, plus interest, pursuant to 42

g.

Grant such other relief as the Court deems just and proper.

27
28

DATED this 1st day of May, 2015.


40

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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

By

/s/ Anne Lai


Anne Lai (admitted pro hac vice)
Sameer Ashar (admitted pro hac vice)
University of California, Irvine School of
Law Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Daniel J. Pochoda
Joshua D. Bendor
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 205
Phoenix, AZ 85012
Jessica Karp Bansal (admitted pro hac vice)
National Day Labor Organizing Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Jessica Myers Vosburgh (admitted pro hac
vice)
National Day Laborer Organizing Network
2104 Chapel Hill Road
Hoover, AL 35216
Telephone: (205) 317-1481
Ray A. Ybarra Maldonado
Law Office of Ray A. Ybarra Maldonado, PLC
2637 North 16th St., Unit 1
Phoenix, AZ 85006
Attorneys for Plaintiffs

18
19
20
21
22
23
24
25
26
27
28
41

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 43 of 122

Exhibit 1

Case 2:14-cv-01356-DGC Document 179 Filed 05/01/15 Page 44 of 122

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Exhibit 2

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Exhibit 4

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Exhibit 5

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Conference Engrossed

State of Arizona
House of Representatives
Forty-eighth Legislature
First Regular Session
2007

HOUSE BILL 2779


AN ACT
AMENDING SECTION 13-2009, ARIZONA REVISED STATUTES; AMENDING TITLE 23,
CHAPTER 2, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 2; MAKING
APPROPRIATIONS; RELATING TO EMPLOYMENT.

(TEXT OF BILL BEGINS ON NEXT PAGE)

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Be it enacted by the Legislature of the State of Arizona:


Section 1. Section 13-2009, Arizona Revised Statutes, is amended to
read:
13-2009. Aggravated taking identity of another person or
entity; classification
A. A person commits aggravated taking the identity of another person
or entity if the person knowingly takes, purchases, manufactures, records,
possesses or uses any personal identifying information or entity identifying
information of either:
1. Five THREE or more other persons or entities, including real or
fictitious persons or entities, without the consent of the other persons or
entities, with the intent to obtain or use the other persons' or entities'
identities for any unlawful purpose or to cause loss to the persons or
entities whether or not the persons or entities actually suffer any economic
loss.
2. Another person or entity, including a real or fictitious person or
entity, without the consent of that other person or entity, with the intent
to obtain or use the other person's or entity's identity for any unlawful
purpose and causes another person or entity to suffer an economic loss of
three thousand dollars or more.
3. ANOTHER PERSON, INCLUDING A REAL OR FICTITIOUS PERSON, WITH THE
INTENT TO OBTAIN EMPLOYMENT.
B. In an action for aggravated taking the identity of another person
or entity under subsection A, paragraph 1 of this section, proof of
possession out of the regular course of business of the personal identifying
information or entity identifying information of five THREE or more other
persons or entities may give rise to an inference that the personal
identifying information or entity identifying information of the five THREE
or more other persons or entities was possessed for an unlawful purpose.
C. This section does not apply to a violation of section 4-241 by a
person who is under twenty-one years of age.
D. Aggravated taking the identity of another person or entity is a
class 3 felony.
Sec. 2. Title 23, chapter 2, Arizona Revised Statutes, is amended by
adding article 2, to read:
ARTICLE 2. EMPLOYMENT OF UNAUTHORIZED ALIENS
23-211. Definitions
IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. "AGENCY" MEANS ANY AGENCY, DEPARTMENT, BOARD OR COMMISSION OF THIS
STATE OR A COUNTY, CITY OR TOWN THAT ISSUES A LICENSE FOR PURPOSES OF
OPERATING A BUSINESS IN THIS STATE.
2. "BASIC PILOT PROGRAM" MEANS THE BASIC EMPLOYMENT VERIFICATION PILOT
PROGRAM AS JOINTLY ADMINISTERED BY THE UNITED STATES DEPARTMENT OF HOMELAND
SECURITY AND THE SOCIAL SECURITY ADMINISTRATION OR ITS SUCCESSOR PROGRAM.
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3. "EMPLOYEE" MEANS ANY PERSON WHO PERFORMS EMPLOYMENT SERVICES FOR AN


EMPLOYER PURSUANT TO AN EMPLOYMENT RELATIONSHIP BETWEEN THE EMPLOYEE AND
EMPLOYER.
4. "EMPLOYER" MEANS ANY INDIVIDUAL OR TYPE OF ORGANIZATION THAT
TRANSACTS BUSINESS IN THIS STATE, THAT HAS A LICENSE ISSUED BY AN AGENCY IN
THIS STATE AND THAT EMPLOYS ONE OR MORE INDIVIDUALS WHO PERFORM EMPLOYMENT
SERVICES IN THIS STATE.
EMPLOYER INCLUDES THIS STATE, ANY POLITICAL
SUBDIVISION OF THIS STATE AND SELF-EMPLOYED PERSONS.
5. "INTENTIONALLY" HAS THE SAME MEANING PRESCRIBED IN SECTION 13-105.
6. "KNOWINGLY EMPLOY AN UNAUTHORIZED ALIEN" MEANS THE ACTIONS
DESCRIBED IN 8 UNITED STATES CODE SECTION 1324A.
THIS TERM SHALL BE
INTERPRETED CONSISTENTLY WITH 8 UNITED STATES CODE SECTION 1324A AND ANY
APPLICABLE FEDERAL RULES AND REGULATIONS.
7. "LICENSE":
(a) MEANS ANY AGENCY PERMIT, CERTIFICATE, APPROVAL, REGISTRATION,
CHARTER OR SIMILAR FORM OF AUTHORIZATION THAT IS REQUIRED BY LAW AND THAT IS
ISSUED BY ANY AGENCY FOR THE PURPOSES OF OPERATING A BUSINESS IN THIS STATE.
(b) INCLUDES:
(i) ARTICLES OF INCORPORATION UNDER TITLE 10.
(ii) A CERTIFICATE OF PARTNERSHIP, A PARTNERSHIP REGISTRATION OR
ARTICLES OF ORGANIZATION UNDER TITLE 29.
(iii) A GRANT OF AUTHORITY ISSUED UNDER TITLE 10, CHAPTER 15.
(iv) ANY TRANSACTION PRIVILEGE TAX LICENSE.
(c) DOES NOT INCLUDE:
(i) ANY LICENSE ISSUED PURSUANT TO TITLE 45 OR 49 OR RULES ADOPTED
PURSUANT TO THOSE TITLES.
(ii) ANY PROFESSIONAL LICENSE.
8. "UNAUTHORIZED ALIEN" MEANS AN ALIEN WHO DOES NOT HAVE THE LEGAL
RIGHT OR AUTHORIZATION UNDER FEDERAL LAW TO WORK IN THE UNITED STATES AS
DESCRIBED IN 8 UNITED STATES CODE SECTION 1324a(h)(3).
23-212. Employment of unauthorized aliens; prohibition; false
and frivolous complaints; violation; classification;
license suspension and revocation
A. AN EMPLOYER SHALL NOT INTENTIONALLY EMPLOY AN UNAUTHORIZED ALIEN OR
KNOWINGLY EMPLOY AN UNAUTHORIZED ALIEN.
B. ON RECEIPT OF A COMPLAINT THAT AN EMPLOYER ALLEGEDLY INTENTIONALLY
EMPLOYS AN UNAUTHORIZED ALIEN OR KNOWINGLY EMPLOYS AN UNAUTHORIZED ALIEN, THE
ATTORNEY GENERAL OR COUNTY ATTORNEY SHALL INVESTIGATE WHETHER THE EMPLOYER
HAS VIOLATED SUBSECTION A. WHEN INVESTIGATING A COMPLAINT, THE ATTORNEY
GENERAL OR COUNTY ATTORNEY SHALL VERIFY THE WORK AUTHORIZATION OF THE ALLEGED
UNAUTHORIZED ALIEN WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES
CODE SECTION 1373(c). A STATE, COUNTY OR LOCAL OFFICIAL SHALL NOT ATTEMPT TO
INDEPENDENTLY MAKE A FINAL DETERMINATION ON WHETHER AN ALIEN IS AUTHORIZED TO
WORK IN THE UNITED STATES. AN ALIEN'S IMMIGRATION STATUS OR WORK
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AUTHORIZATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT


TO 8 UNITED STATES CODE SECTION 1373(c). A PERSON WHO KNOWINGLY FILES A
FALSE AND FRIVOLOUS COMPLAINT UNDER THIS SUBSECTION IS GUILTY OF A CLASS 3
MISDEMEANOR.
C. IF, AFTER AN INVESTIGATION, THE ATTORNEY GENERAL OR COUNTY ATTORNEY
DETERMINES THAT THE COMPLAINT IS NOT FRIVOLOUS:
1. THE ATTORNEY GENERAL OR COUNTY ATTORNEY SHALL NOTIFY THE UNITED
STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OF THE UNAUTHORIZED ALIEN.
2. THE ATTORNEY GENERAL OR COUNTY ATTORNEY SHALL NOTIFY THE LOCAL LAW
ENFORCEMENT AGENCY OF THE UNAUTHORIZED ALIEN.
3. THE ATTORNEY GENERAL SHALL NOTIFY THE APPROPRIATE COUNTY ATTORNEY
TO BRING AN ACTION PURSUANT TO SUBSECTION D IF THE COMPLAINT WAS ORIGINALLY
FILED WITH THE ATTORNEY GENERAL.
D. AN ACTION FOR A VIOLATION OF SUBSECTION A SHALL BE BROUGHT AGAINST
THE EMPLOYER BY THE COUNTY ATTORNEY IN THE COUNTY WHERE THE UNAUTHORIZED
ALIEN EMPLOYEE IS EMPLOYED. THE COUNTY ATTORNEY SHALL NOT BRING AN ACTION
AGAINST ANY EMPLOYER FOR ANY VIOLATION OF SUBSECTION A THAT OCCURS BEFORE
JANUARY 1, 2008. A SECOND VIOLATION OF THIS SECTION SHALL BE BASED ONLY ON
AN UNAUTHORIZED ALIEN WHO IS EMPLOYED BY THE EMPLOYER AFTER AN ACTION HAS
BEEN BROUGHT FOR A VIOLATION OF SUBSECTION A.
E. FOR ANY ACTION IN SUPERIOR COURT UNDER THIS SECTION, THE COURT
SHALL EXPEDITE THE ACTION, INCLUDING ASSIGNING THE HEARING AT THE EARLIEST
PRACTICABLE DATE.
F. ON A FINDING OF A VIOLATION OF SUBSECTION A:
1. FOR A FIRST VIOLATION DURING A THREE YEAR PERIOD THAT IS A KNOWING
VIOLATION OF SUBSECTION A, THE COURT:
(a) SHALL ORDER THE EMPLOYER TO TERMINATE THE EMPLOYMENT OF ALL
UNAUTHORIZED ALIENS.
(b) SHALL ORDER THE EMPLOYER TO BE SUBJECT TO A THREE YEAR
PROBATIONARY PERIOD. DURING THE PROBATIONARY PERIOD THE EMPLOYER SHALL FILE
QUARTERLY REPORTS WITH THE COUNTY ATTORNEY OF EACH NEW EMPLOYEE WHO IS HIRED
BY THE EMPLOYER AT THE SPECIFIC LOCATION WHERE THE UNAUTHORIZED ALIEN
PERFORMED WORK.
(c) SHALL ORDER THE EMPLOYER TO FILE A SIGNED SWORN AFFIDAVIT WITH THE
COUNTY ATTORNEY WITHIN THREE BUSINESS DAYS AFTER THE ORDER IS ISSUED. THE
AFFIDAVIT SHALL STATE THAT THE EMPLOYER HAS TERMINATED THE EMPLOYMENT OF ALL
UNAUTHORIZED ALIENS AND THAT THE EMPLOYER WILL NOT INTENTIONALLY OR KNOWINGLY
EMPLOY AN UNAUTHORIZED ALIEN. THE COURT SHALL ORDER THE APPROPRIATE AGENCIES
TO SUSPEND ALL LICENSES SUBJECT TO THIS SUBDIVISION THAT ARE HELD BY THE
EMPLOYER IF THE EMPLOYER FAILS TO FILE A SIGNED SWORN AFFIDAVIT WITH THE
COUNTY ATTORNEY WITHIN THREE BUSINESS DAYS AFTER THE ORDER IS ISSUED. ALL
LICENSES THAT ARE SUSPENDED UNDER THIS SUBDIVISION SHALL REMAIN SUSPENDED
UNTIL THE EMPLOYER FILES A SIGNED SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY.
NOTWITHSTANDING ANY OTHER LAW, ON FILING OF THE AFFIDAVIT THE SUSPENDED
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LICENSES SHALL BE REINSTATED IMMEDIATELY BY THE APPROPRIATE AGENCIES FOR THE


PURPOSES OF THIS SUBDIVISION, THE LICENSES THAT ARE SUBJECT TO SUSPENSION
UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE EMPLOYER AND
THAT ARE NECESSARY TO OPERATE THE EMPLOYER'S BUSINESS AT THE EMPLOYER'S
BUSINESS LOCATION WHERE THE UNAUTHORIZED ALIEN PERFORMED WORK. IF A LICENSE
IS NOT NECESSARY TO OPERATE THE EMPLOYER'S BUSINESS AT THE SPECIFIC LOCATION
WHERE THE UNAUTHORIZED ALIEN PERFORMED WORK, BUT A LICENSE IS NECESSARY TO
OPERATE THE EMPLOYER'S BUSINESS IN GENERAL, THE LICENSES THAT ARE SUBJECT TO
SUSPENSION UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE
EMPLOYER AT THE EMPLOYER'S PRIMARY PLACE OF BUSINESS. ON RECEIPT OF THE
COURT'S ORDER AND NOTWITHSTANDING ANY OTHER LAW, THE APPROPRIATE AGENCIES
SHALL SUSPEND THE LICENSES ACCORDING TO THE COURT'S ORDER. THE COURT SHALL
SEND A COPY OF THE COURT'S ORDER TO THE ATTORNEY GENERAL AND THE ATTORNEY
GENERAL SHALL MAINTAIN THE COPY PURSUANT TO SUBSECTION G.
(d) MAY ORDER THE APPROPRIATE AGENCIES TO SUSPEND ALL LICENSES
DESCRIBED IN SUBDIVISION (c) OF THIS PARAGRAPH THAT ARE HELD BY THE EMPLOYER
FOR NOT TO EXCEED TEN BUSINESS DAYS. THE COURT SHALL BASE ITS DECISION TO
SUSPEND UNDER THIS SUBDIVISION ON ANY EVIDENCE OR INFORMATION SUBMITTED TO IT
DURING THE ACTION FOR A VIOLATION OF THIS SUBSECTION AND SHALL CONSIDER THE
FOLLOWING FACTORS, IF RELEVANT:
(i) THE NUMBER OF UNAUTHORIZED ALIENS EMPLOYED BY THE EMPLOYER.
(ii) ANY PRIOR MISCONDUCT BY THE EMPLOYER.
(iii) THE DEGREE OF HARM RESULTING FROM THE VIOLATION.
(iv) WHETHER THE EMPLOYER MADE GOOD FAITH EFFORTS TO COMPLY WITH ANY
APPLICABLE REQUIREMENTS.
(v) THE DURATION OF THE VIOLATION.
(vi) THE ROLE OF THE DIRECTORS, OFFICERS OR PRINCIPALS OF THE EMPLOYER
IN THE VIOLATION.
(vii) ANY OTHER FACTORS THE COURT DEEMS APPROPRIATE.
2. FOR A FIRST VIOLATION DURING A FIVE YEAR PERIOD THAT IS AN
INTENTIONAL VIOLATION OF SUBSECTION A, THE COURT SHALL:
(a) ORDER THE EMPLOYER TO TERMINATE THE EMPLOYMENT OF ALL UNAUTHORIZED
ALIENS.
(b) ORDER THE EMPLOYER TO BE SUBJECT TO A FIVE YEAR PROBATIONARY
PERIOD. DURING THE PROBATIONARY PERIOD THE EMPLOYER SHALL FILE QUARTERLY
REPORTS WITH THE COUNTY ATTORNEY OF EACH NEW EMPLOYEE WHO IS HIRED BY THE
EMPLOYER AT THE SPECIFIC LOCATION WHERE THE UNAUTHORIZED ALIEN PERFORMED
WORK.
(c) ORDER THE APPROPRIATE AGENCIES TO SUSPEND ALL LICENSES, DESCRIBED
IN SUBDIVISION (d) OF THIS PARAGRAPH THAT ARE HELD BY THE EMPLOYER FOR A
MINIMUM OF TEN DAYS. THE COURT SHALL BASE ITS DECISION ON THE LENGTH OF THE
SUSPENSION UNDER THIS SUBDIVISION ON ANY EVIDENCE OR INFORMATION SUBMITTED TO
IT DURING THE ACTION FOR A VIOLATION OF THIS SUBSECTION AND SHALL CONSIDER
THE FOLLOWING FACTORS, IF RELEVANT:
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(i) THE NUMBER OF UNAUTHORIZED ALIENS EMPLOYED BY THE EMPLOYER.


(ii) ANY PRIOR MISCONDUCT BY THE EMPLOYER.
(iii) THE DEGREE OF HARM RESULTING FROM THE VIOLATION.
(iv) WHETHER THE EMPLOYER MADE GOOD FAITH EFFORTS TO COMPLY WITH ANY
APPLICABLE REQUIREMENTS.
(v) THE DURATION OF THE VIOLATION.
(vi) THE ROLE OF THE DIRECTORS, OFFICERS OR PRINCIPALS OF THE EMPLOYER
IN THE VIOLATION.
(vii) ANY OTHER FACTORS THE COURT DEEMS APPROPRIATE.
(d) ORDER THE EMPLOYER TO FILE A SIGNED SWORN AFFIDAVIT WITH THE
COUNTY ATTORNEY. THE AFFIDAVIT SHALL STATE THAT THE EMPLOYER HAS TERMINATED
THE EMPLOYMENT OF ALL UNAUTHORIZED ALIENS AND THAT THE EMPLOYER WILL NOT
INTENTIONALLY OR KNOWINGLY EMPLOY AN UNAUTHORIZED ALIEN. ALL LICENSES THAT
ARE SUSPENDED UNDER THIS SUBDIVISION SHALL REMAIN SUSPENDED UNTIL THE
EMPLOYER FILES A SIGNED SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY. FOR THE
PURPOSES OF THIS SUBDIVISION, THE LICENSES THAT ARE SUBJECT TO SUSPENSION
UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE EMPLOYER AND
THAT ARE NECESSARY TO OPERATE THE EMPLOYER'S BUSINESS AT THE EMPLOYER'S
BUSINESS LOCATION WHERE THE UNAUTHORIZED ALIEN PERFORMED WORK. IF A LICENSE
IS NOT NECESSARY TO OPERATE THE EMPLOYER'S BUSINESS AT THE SPECIFIC LOCATION
WHERE THE UNAUTHORIZED ALIEN PERFORMED WORK, BUT A LICENSE IS NECESSARY TO
OPERATE THE EMPLOYER'S BUSINESS IN GENERAL, THE LICENSES THAT ARE SUBJECT TO
SUSPENSION UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE
EMPLOYER AT THE EMPLOYER'S PRIMARY PLACE OF BUSINESS. ON RECEIPT OF THE
COURT'S ORDER AND NOTWITHSTANDING ANY OTHER LAW, THE APPROPRIATE AGENCIES
SHALL SUSPEND THE LICENSES ACCORDING TO THE COURT'S ORDER. THE COURT SHALL
SEND A COPY OF THE COURT'S ORDER TO THE ATTORNEY GENERAL AND THE ATTORNEY
GENERAL SHALL MAINTAIN THE COPY PURSUANT TO SUBSECTION G.
3. FOR A SECOND VIOLATION OF SUBSECTION A DURING THE PERIOD OF
PROBATION, THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO PERMANENTLY
REVOKE ALL LICENSES THAT ARE HELD BY THE EMPLOYER AND THAT ARE NECESSARY TO
OPERATE THE EMPLOYER'S BUSINESS AT THE EMPLOYER'S BUSINESS LOCATION WHERE THE
UNAUTHORIZED ALIEN PERFORMED WORK. IF A LICENSE IS NOT NECESSARY TO OPERATE
THE EMPLOYER'S BUSINESS AT THE SPECIFIC LOCATION WHERE THE UNAUTHORIZED ALIEN
PERFORMED WORK, BUT A LICENSE IS NECESSARY TO OPERATE THE EMPLOYER'S BUSINESS
IN GENERAL, THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO PERMANENTLY
REVOKE ALL LICENSES THAT ARE HELD BY THE EMPLOYER AT THE EMPLOYER'S PRIMARY
PLACE OF BUSINESS. ON RECEIPT OF THE ORDER AND NOTWITHSTANDING ANY OTHER
LAW, THE APPROPRIATE AGENCIES SHALL IMMEDIATELY REVOKE THE LICENSES.
G. THE ATTORNEY GENERAL SHALL MAINTAIN COPIES OF COURT ORDERS THAT ARE
RECEIVED PURSUANT TO SUBSECTION F AND SHALL MAINTAIN A DATABASE OF THE
EMPLOYERS WHO HAVE A FIRST VIOLATION OF SUBSECTION A AND MAKE THE COURT
ORDERS AVAILABLE ON THE ATTORNEY GENERAL'S WEBSITE.

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H. ON DETERMINING WHETHER AN EMPLOYEE IS AN UNAUTHORIZED ALIEN, THE


COURT SHALL CONSIDER ONLY THE FEDERAL GOVERNMENT'S DETERMINATION PURSUANT TO
8 UNITED STATES CODE SECTION 1373(c). THE FEDERAL GOVERNMENT'S DETERMINATION
CREATES A REBUTTABLE PRESUMPTION OF THE EMPLOYEE'S LAWFUL STATUS. THE COURT
MAY TAKE JUDICIAL NOTICE OF THE FEDERAL GOVERNMENT'S DETERMINATION AND MAY
REQUEST THE FEDERAL GOVERNMENT TO PROVIDE AUTOMATED OR TESTIMONIAL
VERIFICATION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
I. FOR THE PURPOSES OF THIS SECTION, PROOF OF VERIFYING THE EMPLOYMENT
AUTHORIZATION OF AN EMPLOYEE THROUGH THE BASIC PILOT PROGRAM CREATES A
REBUTTABLE PRESUMPTION THAT AN EMPLOYER DID NOT INTENTIONALLY EMPLOY AN
UNAUTHORIZED ALIEN OR KNOWINGLY EMPLOY AN UNAUTHORIZED ALIEN.
J. FOR THE PURPOSES OF THIS SECTION, AN EMPLOYER WHO ESTABLISHES THAT
IT HAS COMPLIED IN GOOD FAITH WITH THE REQUIREMENTS OF 8 UNITED STATES CODE
SECTION 1324b ESTABLISHES AN AFFIRMATIVE DEFENSE THAT THE EMPLOYER DID NOT
INTENTIONALLY OR KNOWINGLY EMPLOY AN UNAUTHORIZED ALIEN.
23-213. Employer actions; federal or state law compliance
THIS ARTICLE SHALL NOT BE CONSTRUED TO REQUIRE AN EMPLOYER TO TAKE ANY
ACTION THAT THE EMPLOYER BELIEVES IN GOOD FAITH WOULD VIOLATE FEDERAL OR
STATE LAW.
23-214. Verification of employment eligibility; basic pilot
program
AFTER DECEMBER 31, 2007, EVERY EMPLOYER, AFTER HIRING AN EMPLOYEE,
SHALL VERIFY THE EMPLOYMENT ELIGIBILITY OF THE EMPLOYEE THROUGH THE BASIC
PILOT PROGRAM.
Sec. 3. Employer notice
On or before October 1, 2007, the department of revenue shall provide a
notice to every employer that is required to withhold tax pursuant to title
43, chapter 4, Arizona Revised Statutes.
The notice shall explain the
requirements of title 23, chapter 2, article 2, Arizona Revised Statutes, as
added by this act, including the following:
1. A new state law prohibits employers from intentionally employing an
unauthorized alien or knowingly employing an unauthorized alien.
2. For a first violation of this new state law during a three year
period that is a knowing violation, the court will order the appropriate
licensing agencies to suspend all licenses held by the employer unless the
employer files a signed sworn affidavit with the county attorney within three
business days.
The filed affidavit must state that the employer has
terminated the employment of all unauthorized aliens and that the employer
will not intentionally or knowingly employ an unauthorized alien. A license
that is suspended will remain suspended until the employer files a signed
sworn affidavit with the county attorney. A copy of the court order will be
made available on the attorney generals website.
3. For a first violation of this new state law during a five year
period that is an intentional violation, the court will order the appropriate
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licensing agencies to suspend all licenses held by the employer for a minimum
of ten days. The employer must file a signed sworn affidavit with the county
attorney. The filed affidavit must state that the employer has terminated
the employment of all unauthorized aliens and that the employer will not
intentionally or knowingly employ an unauthorized alien. A license that is
suspended will remain suspended until the employer files a signed sworn
affidavit with the county attorney. A copy of the court order will be made
available on the attorney general's website.
4. For a second violation of this new state law, the court will order
the appropriate licensing agencies to permanently revoke all licenses that
are held by the employer.
5. Proof of verifying the employment authorization of an employee
through the basic pilot program, as defined in section 23-211, Arizona
Revised Statutes, as added by this act, will create a rebuttable presumption
that an employer did not violate the new state law.
6. After December 31, 2007, every employer, after hiring an employee,
is required to verify the employment eligibility of the employee through the
basic pilot program, as defined in section 23-211, Arizona Revised Statutes,
as added by this act.
7. Instructions for the employer on how to enroll in the basic pilot
program, as defined in section 23-211, Arizona Revised Statutes, as added by
this act.
Sec. 4. Employer sanctions legislative study committee
A. The employer sanctions legislative study committee is established
consisting of the following members:
1. Three members of the senate who are appointed by the president of
the senate, not more than two of whom shall be members of the same political
party. The president of the senate shall designate one of these members to
co-chair the committee.
2. Three members of the house of representatives who are appointed by
the speaker of the house of representatives, not more than two of whom shall
be members of the same political party. The speaker of the house of
representatives shall designate one of these members to co-chair the
committee.
3. A citizen of Arizona appointed by the president of the senate who
owns a business in Arizona with no more than 30 employees.
4. A citizen of Arizona appointed by the speaker of the house of
representatives who owns a business in Arizona with more than 30 employees.
B. The Committee shall:
1. Examine the laws and regulations pertaining to employers sanctions
in Arizona.
2. Examine the effects of these laws and whether such laws are being
properly implemented.

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3. Examine if these laws are being applied to all businesses in


Arizona in a fair manner.
4. Examine if the complaint process is being implemented in a fair and
just manner.
5. Submit a report of its findings and recommendations to the
governor, the president of the senate and speaker of the house of
representatives on or before December 31, 2008 and submit a copy of its
report to the secretary of state and the director of the Arizona state,
library archives and public records.
C. Committee members are not eligible to receive compensation or
reimbursement of expenses.
Sec. 5. Severability
If any 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 this act that can be given effect without the invalid
provision or application, and to this end the provisions of this act are
severable.
Sec. 6. Short title
This act shall be known as and may be cited as the "Legal Arizona
Workers Act."
Sec. 7. Appropriation; attorney general enforcement; exemption
A. The sum of $100,000 is appropriated from the state general fund in
fiscal year 2007-2008 to the attorney general for the purpose of enforcing
any immigration related matters and section 23-212, Arizona Revised Statutes,
as added by this act.
B. The appropriation made in subsection A of this section is exempt
from the provisions of section 35-190, Arizona Revised Statutes, relating to
lapsing of appropriations.
Sec. 8. Appropriation; county attorney enforcement; department
of revenue; employer notice; exemption
A. The sum of $2,430,000 is appropriated from the state general fund
in fiscal year 2007-2008 to the department of administration to be
distributed to the county attorneys in this state for the purpose of
enforcing any immigration related matters and section 23-212, Arizona Revised
Statutes, as added by this act.
The department of administration shall
distribute these monies to each county attorney as follows:
1. $1,430,000 to each county attorney of a county in this state having
a population of one million five hundred thousand or more persons.
2. $500,000 to each county attorney of a county in this state having a
population of eight hundred thousand or more persons but less than one
million five hundred thousand persons.

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3. The remainder of monies to be distributed as equally as possible to


each county attorney of counties in this state having a population of less
than five hundred thousand persons.
B. The sum of $70,000 is appropriated from the state general fund in
fiscal year 2007-2008 to the department of revenue for the purposes
prescribed in section 3 of this act.
C. The appropriation made in subsection A of this section is exempt
from the provisions of section 35-190, Arizona Revised Statutes, relating to
lapsing of appropriations.
Sec. 9. Delayed repeal
Section 4 as added by this act is repealed from and after January 1,
2009.

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Exhibit 6

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Exhibit 7

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House Engrossed

State of Arizona
House of Representatives
Forty-eighth Legislature
Second Regular Session
2008

HOUSE BILL 2745


AN ACT
AMENDING SECTIONS 13-2008, 13-2010, 23-211 AND 23-212, ARIZONA REVISED
STATUTES; AMENDING TITLE 23, CHAPTER 2, ARTICLE 2, ARIZONA REVISED STATUTES,
BY ADDING SECTION 23-212.01; AMENDING SECTION 23-214, ARIZONA REVISED
STATUTES; AMENDING TITLE 23, CHAPTER 2, ARTICLE 2, ARIZONA REVISED STATUTES,
BY ADDING SECTIONS 23-215 AND 23-216; AMENDING TITLE 23, CHAPTER 2, ARTICLE
7, ARIZONA REVISED STATUTES, BY ADDING SECTION 23-361.01; AMENDING TITLE 41,
CHAPTER 6, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 7.2; AMENDING TITLE
41, ARIZONA REVISED STATUTES, BY ADDING CHAPTER 44; RELATING TO EMPLOYMENT
OF UNAUTHORIZED ALIENS.

(TEXT OF BILL BEGINS ON NEXT PAGE)

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H.B. 2745

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Be it enacted by the Legislature of the State of Arizona:


Section 1. Section 13-2008, Arizona Revised Statutes, is amended to
read:
13-2008. Taking or knowingly accepting identity of another
person or entity; classification
A. A person commits taking the identity of another person or entity if
the person knowingly takes, purchases, manufactures, records, possesses or
uses any personal identifying information or entity identifying information
of another person or entity, including a real or fictitious person or entity,
without the consent of that other person or entity, with the intent to obtain
or use the other person's or entity's identity for any unlawful purpose or to
cause loss to a person or entity whether or not the person or entity actually
suffers any economic loss as a result of the offense, OR WITH THE INTENT TO
OBTAIN OR CONTINUE EMPLOYMENT.
B. A PERSON COMMITS KNOWINGLY ACCEPTING THE IDENTITY OF ANOTHER PERSON
IF THE PERSON, IN HIRING AN EMPLOYEE, KNOWINGLY DOES BOTH OF THE FOLLOWING:
1. ACCEPTS ANY PERSONAL IDENTIFYING INFORMATION OF ANOTHER PERSON FROM
AN INDIVIDUAL AND KNOWS THAT THE INDIVIDUAL IS NOT THE ACTUAL PERSON
IDENTIFIED BY THAT INFORMATION.
2. USES THAT IDENTITY INFORMATION FOR THE PURPOSE OF DETERMINING
WHETHER THE INDIVIDUAL WHO PRESENTED THAT IDENTITY INFORMATION HAS THE LEGAL
RIGHT OR AUTHORIZATION UNDER FEDERAL LAW TO WORK IN THE UNITED STATES AS
DESCRIBED AND DETERMINED UNDER THE PROCESSES AND PROCEDURES UNDER 8 UNITED
STATES CODE SECTION 1324a.
B. C. On the request of a person or entity, a peace officer in any
jurisdiction in which an element of the AN offense UNDER THIS SECTION is
committed, a result of the AN offense UNDER THIS SECTION occurs or the person
or entity whose identity is taken OR ACCEPTED resides or is located shall
take a report. The peace officer may provide a copy of the report to any
other law enforcement agency that is located in a jurisdiction in which a
violation of this section occurred.
C. D. If a defendant is alleged to have committed multiple violations
of this section within the same county, the prosecutor may file a complaint
charging all of the violations and any related charges under other sections
that have not been previously filed in any precinct in which a violation is
alleged to have occurred. If a defendant is alleged to have committed
multiple violations of this section within the state, the prosecutor may file
a complaint charging all of the violations and any related charges under
other sections that have not been previously filed in any county in which a
violation is alleged to have occurred.
D. E. This section does not apply to a violation of section 4-241 by
a person who is under twenty-one years of age.
E. F. Taking the identity of another person or entity OR KNOWINGLY
ACCEPTING THE IDENTITY OF ANOTHER PERSON is a class 4 felony.
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Sec. 2. Section 13-2010, Arizona Revised Statutes, is amended to read:


13-2010. Trafficking in the identity of another person or
entity; classification
A. A person commits trafficking in the identity of another person or
entity if the person knowingly sells, transfers or transmits any personal
identifying information or entity identifying information of another person
or entity, including a real or fictitious person or entity, without the
consent of the other person or entity for any unlawful purpose or to cause
loss to the person or entity whether or not the other person or entity
actually suffers any economic loss, OR ALLOWING ANOTHER PERSON TO OBTAIN OR
CONTINUE EMPLOYMENT.
B. This section does not apply to a violation of section 4-241 by a
person who is under twenty-one years of age.
C. Trafficking in the identity of another person or entity is a
class 2 felony.
Sec. 3. Section 23-211, Arizona Revised Statutes, is amended to read:
23-211. Definitions
In this article, unless the context otherwise requires:
1. "Agency" means any agency, department, board or commission of this
state or a county, city or town that issues a license for purposes of
operating a business in this state.
2. "EMPLOY" MEANS HIRING AN EMPLOYEE AFTER DECEMBER 31, 2007.
3. "Employee":
(a) Means any person who performs employment PROVIDES services OR
LABOR for an employer pursuant to an employment relationship between the
employee and employer IN THIS STATE FOR WAGES OR OTHER REMUNERATION.
(b) DOES NOT INCLUDE AN INDEPENDENT CONTRACTOR.
4. "Employer" means any individual or type of organization that
transacts business in this state, that has a license issued by an agency in
this state and that employs one or more individuals who perform employment
services EMPLOYEES in this state. Employer includes this state, any
political subdivision of this state and self-employed persons. IN THE CASE
OF AN INDEPENDENT CONTRACTOR, EMPLOYER MEANS THE INDEPENDENT CONTRACTOR AND
DOES NOT MEAN THE PERSON OR ORGANIZATION THAT USES THE CONTRACT LABOR.
2. 5. "Basic pilot E-VERIFY program" means the basic employment
verification pilot program as jointly administered by the United States
department of homeland security and the social security administration or ANY
OF its successor program PROGRAMS.
6. "INDEPENDENT CONTRACTOR" MEANS ANY INDIVIDUAL OR ENTITY THAT
CARRIES ON AN INDEPENDENT BUSINESS, THAT CONTRACTS TO DO A PIECE OF WORK
ACCORDING TO THE INDIVIDUAL'S OR ENTITY'S OWN MEANS AND METHODS AND THAT IS
SUBJECT TO CONTROL ONLY AS TO RESULTS. WHETHER AN INDIVIDUAL OR ENTITY IS AN
INDEPENDENT CONTRACTOR IS DETERMINED ON A CASE-BY-CASE BASIS THROUGH VARIOUS
FACTORS, INCLUDING WHETHER THE INDIVIDUAL OR ENTITY:
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(a) SUPPLIES THE TOOLS OR MATERIALS.


(b) MAKES SERVICES AVAILABLE TO THE GENERAL PUBLIC.
(c) WORKS OR MAY WORK FOR A NUMBER OF CLIENTS AT THE SAME TIME.
(d) HAS AN OPPORTUNITY FOR PROFIT OR LOSS AS A RESULT OF LABOR OR
SERVICE PROVIDED.
(e) INVESTS IN THE FACILITIES FOR WORK.
(f) DIRECTS THE ORDER OR SEQUENCE IN WHICH THE WORK IS COMPLETED.
(g) DETERMINES THE HOURS WHEN THE WORK IS COMPLETED.
5. 7. "Intentionally" has the same meaning prescribed in section
13-105.
6. 8. "Knowingly employ an unauthorized alien" means the actions
described in 8 United States Code section 1324a. This term shall be
interpreted consistently with 8 United States Code section 1324a and any
applicable federal rules and regulations.
7. 9. "License":
(a) Means any agency permit, certificate, approval, registration,
charter or similar form of authorization that is required by law and that is
issued by any agency for the purposes of operating a business in this state.
(b) Includes:
(i) Articles of incorporation under title 10.
(ii) A certificate of partnership, a partnership registration or
articles of organization under title 29.
(iii) A grant of authority issued under title 10, chapter 15.
(iv) Any transaction privilege tax license.
(c) Does not include:
(i) Any license issued pursuant to title 45 or 49 or rules adopted
pursuant to those titles.
(ii) Any professional license.
10. "SOCIAL SECURITY NUMBER VERIFICATION SERVICE" MEANS THE PROGRAM
ADMINISTERED BY THE SOCIAL SECURITY ADMINISTRATION OR ANY OF ITS SUCCESSOR
PROGRAMS.
8. 11. "Unauthorized alien" means an alien who does not have the
legal right or authorization under federal law to work in the United States
as described in 8 United States Code section 1324a(h)(3).
Sec. 4. Section 23-212, Arizona Revised Statutes, is amended to read:
23-212. Knowingly employing unauthorized aliens; prohibition;
false
and
frivolous
complaints;
violation;
classification; license suspension and revocation;
affirmative defense
A. An employer shall not intentionally employ an unauthorized alien or
knowingly employ an unauthorized alien. IF, IN THE CASE WHEN AN EMPLOYER
USES A CONTRACT, SUBCONTRACT OR OTHER INDEPENDENT CONTRACTOR AGREEMENT TO
OBTAIN THE LABOR OF AN ALIEN IN THIS STATE, THE EMPLOYER KNOWINGLY CONTRACTS
WITH AN UNAUTHORIZED ALIEN OR WITH A PERSON WHO EMPLOYS OR CONTRACTS WITH AN
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H.B. 2745

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UNAUTHORIZED ALIEN TO PERFORM THE LABOR, THE EMPLOYER VIOLATES THIS


SUBSECTION.
B. THE ATTORNEY GENERAL SHALL PRESCRIBE A COMPLAINT FORM FOR A PERSON
TO ALLEGE A VIOLATION OF SUBSECTION A OF THIS SECTION. THE COMPLAINANT SHALL
NOT BE REQUIRED TO LIST THE COMPLAINANT'S SOCIAL SECURITY NUMBER ON THE
COMPLAINT FORM OR TO HAVE THE COMPLAINT FORM NOTARIZED. On receipt of a
complaint ON A PRESCRIBED COMPLAINT FORM that an employer allegedly
intentionally employs an unauthorized alien or knowingly employs an
unauthorized alien, the attorney general or county attorney shall investigate
whether the employer has violated subsection A OF THIS SECTION.
IF A
COMPLAINT IS RECEIVED BUT IS NOT SUBMITTED ON A PRESCRIBED COMPLAINT FORM,
THE ATTORNEY GENERAL OR COUNTY ATTORNEY MAY INVESTIGATE WHETHER THE EMPLOYER
HAS VIOLATED SUBSECTION A OF THIS SECTION. THIS SUBSECTION SHALL NOT BE
CONSTRUED TO PROHIBIT THE FILING OF ANONYMOUS COMPLAINTS THAT ARE NOT
SUBMITTED ON A PRESCRIBED COMPLAINT FORM. THE ATTORNEY GENERAL OR COUNTY
ATTORNEY SHALL NOT INVESTIGATE COMPLAINTS THAT ARE BASED SOLELY ON RACE,
COLOR OR NATIONAL ORIGIN. A COMPLAINT THAT IS SUBMITTED TO A COUNTY ATTORNEY
SHALL BE SUBMITTED TO THE COUNTY ATTORNEY IN THE COUNTY IN WHICH THE ALLEGED
UNAUTHORIZED ALIEN IS OR WAS EMPLOYED BY THE EMPLOYER. THE COUNTY SHERIFF OR
ANY OTHER LOCAL LAW ENFORCEMENT AGENCY MAY ASSIST IN INVESTIGATING A
COMPLAINT. When investigating a complaint, the attorney general or county
attorney shall verify the work authorization of the alleged unauthorized
alien with the federal government pursuant to 8 United States Code section
1373(c). A state, county or local official shall not attempt to
independently make a final determination on whether an alien is authorized to
work in the United States. An alien's immigration status or work
authorization status shall be verified with the federal government pursuant
to 8 United States Code section 1373(c). A person who knowingly files a
false and frivolous complaint under this subsection is guilty of a class 3
misdemeanor.
C. If, after an investigation, the attorney general or county attorney
determines that the complaint is not FALSE AND frivolous:
1. The attorney general or county attorney shall notify the United
States immigration and customs enforcement of the unauthorized alien.
2. The attorney general or county attorney shall notify the local law
enforcement agency of the unauthorized alien.
3. The attorney general shall notify the appropriate county attorney
to bring an action pursuant to subsection D OF THIS SECTION if the complaint
was originally filed with the attorney general.
D. An action for a violation of subsection A OF THIS SECTION shall be
brought against the employer by the county attorney in the county where the
unauthorized alien employee is OR WAS employed BY THE EMPLOYER. The county
attorney shall not bring an action against any employer for any violation of
subsection A OF THIS SECTION that occurs before January 1, 2008. A second
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violation of this section shall be based only on an unauthorized alien who is


OR WAS employed by the employer after an action has been brought for a
violation of subsection A OF THIS SECTION OR SECTION 23-212.01, SUBSECTION A.
E. For any action in superior court under this section, the court
shall expedite the action, including assigning the hearing at the earliest
practicable date.
F. On a finding of a violation of subsection A OF THIS SECTION:
1. For a first violation during a three year period that is a knowing
violation of subsection A, AS DESCRIBED IN PARAGRAPH 3 OF THIS SUBSECTION,
the court:
(a) Shall order the employer to terminate the employment of all
unauthorized aliens.
(b) Shall order the employer to be subject to a three year
probationary period FOR THE BUSINESS LOCATION WHERE THE UNAUTHORIZED ALIEN
PERFORMED WORK.
During the probationary period the employer shall file
quarterly reports IN THE FORM PROVIDED IN SECTION 23-722.01 with the county
attorney of each new employee who is hired by the employer at the specific
BUSINESS location where the unauthorized alien performed work.
(c) Shall order the employer to file a signed sworn affidavit with the
county attorney within three business days after the order is issued. The
affidavit shall state that the employer has terminated the employment of all
unauthorized aliens IN THIS STATE and that the employer will not
intentionally or knowingly employ an unauthorized alien IN THIS STATE. The
court shall order the appropriate agencies to suspend all licenses subject to
this subdivision that are held by the employer if the employer fails to file
a signed sworn affidavit with the county attorney within three business days
after the order is issued. All licenses that are suspended under this
subdivision shall remain suspended until the employer files a signed sworn
affidavit with the county attorney. Notwithstanding any other law, on filing
of the affidavit the suspended licenses shall be reinstated immediately by
the appropriate agencies. For the purposes of this subdivision, the licenses
that are subject to suspension under this subdivision are all licenses that
are held by the employer and that are necessary to operate the employer's
business at the employer's SPECIFIC TO THE business location where the
unauthorized alien performed work. If a license is not necessary to operate
the employer's business at THE EMPLOYER DOES NOT HOLD A LICENSE SPECIFIC TO
the specific BUSINESS location where the unauthorized alien performed work,
but a license is necessary to operate the employer's business in general, the
licenses that are subject to suspension under this subdivision are all
licenses that are held by the employer at the employer's primary place of
business. On receipt of the court's order and notwithstanding any other law,
the appropriate agencies shall suspend the licenses according to the court's
order. The court shall send a copy of the court's order to the attorney

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general and the attorney general shall maintain the copy pursuant to
subsection G OF THIS SECTION.
(d) May order the appropriate agencies to suspend all licenses
described in subdivision (c) of this paragraph that are held by the employer
for not to exceed ten business days. The court shall base its decision to
suspend under this subdivision on any evidence or information submitted to it
during the action for a violation of this subsection and shall consider the
following factors, if relevant:
(i) The number of unauthorized aliens employed by the employer.
(ii) Any prior misconduct by the employer.
(iii) The degree of harm resulting from the violation.
(iv) Whether the employer made good faith efforts to comply with any
applicable requirements.
(v) The duration of the violation.
(vi) The role of the directors, officers or principals of the employer
in the violation.
(vii) Any other factors the court deems appropriate.
2. For a first violation during a five year period that is an
intentional violation of subsection A, the court shall:
(a) Order the employer to terminate the employment of all unauthorized
aliens.
(b) Order the employer to be subject to a five year probationary
period. During the probationary period the employer shall file quarterly
reports with the county attorney of each new employee who is hired by the
employer at the specific location where the unauthorized alien performed
work.
(c) Order the appropriate agencies to suspend all licenses, described
in subdivision (d) of this paragraph that are held by the employer for a
minimum of ten days. The court shall base its decision on the length of the
suspension under this subdivision on any evidence or information submitted to
it during the action for a violation of this subsection and shall consider
the following factors, if relevant:
(i) The number of unauthorized aliens employed by the employer.
(ii) Any prior misconduct by the employer.
(iii) The degree of harm resulting from the violation.
(iv) Whether the employer made good faith efforts to comply with any
applicable requirements.
(v) The duration of the violation.
(vi) The role of the directors, officers or principals of the employer
in the violation.
(vii) Any other factors the court deems appropriate.
(d) Order the employer to file a signed sworn affidavit with the
county attorney. The affidavit shall state that the employer has terminated
the employment of all unauthorized aliens and that the employer will not
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intentionally or knowingly employ an unauthorized alien. All licenses that


are suspended under this subdivision shall remain suspended until the
employer files a signed sworn affidavit with the county attorney. For the
purposes of this subdivision, the licenses that are subject to suspension
under this subdivision are all licenses that are held by the employer and
that are necessary to operate the employer's business at the employer's
business location where the unauthorized alien performed work. If a license
is not necessary to operate the employer's business at the specific location
where the unauthorized alien performed work, but a license is necessary to
operate the employer's business in general, the licenses that are subject to
suspension under this subdivision are all licenses that are held by the
employer at the employer's primary place of business. On receipt of the
court's order and notwithstanding any other law, the appropriate agencies
shall suspend the licenses according to the court's order. The court shall
send a copy of the court's order to the attorney general and the attorney
general shall maintain the copy pursuant to subsection G.
3. 2. For a second violation of subsection A during the period of
probation, AS DESCRIBED IN PARAGRAPH 3 OF THIS SUBSECTION, the court shall
order the appropriate agencies to permanently revoke all licenses that are
held by the employer and that are necessary to operate the employer's
business at the employer's SPECIFIC TO THE business location where the
unauthorized alien performed work. If a license is not necessary to operate
the employer's business at THE EMPLOYER DOES NOT HOLD A LICENSE SPECIFIC TO
the specific BUSINESS location where the unauthorized alien performed work,
but a license is necessary to operate the employer's business in general, the
court shall order the appropriate agencies to permanently revoke all licenses
that are held by the employer at the employer's primary place of business.
On receipt of the order and notwithstanding any other law, the appropriate
agencies shall immediately revoke the licenses.
3. THE VIOLATION SHALL BE CONSIDERED:
(a) A FIRST VIOLATION BY AN EMPLOYER AT A BUSINESS LOCATION IF THE
VIOLATION DID NOT OCCUR DURING A PROBATIONARY PERIOD ORDERED BY THE COURT
UNDER THIS SUBSECTION OR SECTION 23-212.01, SUBSECTION F FOR THAT EMPLOYER'S
BUSINESS LOCATION.
(b) A SECOND VIOLATION BY AN EMPLOYER AT A BUSINESS LOCATION IF THE
VIOLATION OCCURRED DURING A PROBATIONARY PERIOD ORDERED BY THE COURT UNDER
THIS SUBSECTION OR SECTION 23-212.01, SUBSECTION F FOR THAT EMPLOYER'S
BUSINESS LOCATION.
G. The attorney general shall maintain copies of court orders that are
received pursuant to subsection F OF THIS SECTION and shall maintain a
database of the employers who AND BUSINESS LOCATIONS THAT have a first
violation of subsection A OF THIS SECTION and make the court orders available
on the attorney general's website.

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H. On determining whether an employee is an unauthorized alien, the


court shall consider only the federal government's determination pursuant to
8 United States Code section 1373(c). The federal government's determination
creates a rebuttable presumption of the employee's lawful status. The court
may take judicial notice of the federal government's determination and may
request the federal government to provide automated or testimonial
verification pursuant to 8 United States Code section 1373(c).
I. For the purposes of this section, proof of verifying the employment
authorization of an employee through the basic pilot E-VERIFY program creates
a rebuttable presumption that an employer did not intentionally employ an
unauthorized alien or knowingly employ an unauthorized alien.
J. For the purposes of this section, an employer who THAT establishes
that it has complied in good faith with the requirements of 8 United States
Code section 1324b 1324a(b) establishes an affirmative defense that the
employer did not intentionally or knowingly employ an unauthorized alien. AN
EMPLOYER IS CONSIDERED TO HAVE COMPLIED WITH THE REQUIREMENTS OF 8 UNITED
STATES CODE SECTION 1324a(b), NOTWITHSTANDING AN ISOLATED, SPORADIC OR
ACCIDENTAL TECHNICAL OR PROCEDURAL FAILURE TO MEET THE REQUIREMENTS, IF THERE
IS A GOOD FAITH ATTEMPT TO COMPLY WITH THE REQUIREMENTS.
Sec. 5. Title 23, chapter 2, article 2, Arizona Revised Statutes, is
amended by adding section 23-212.01, to read:
23-212.01. Intentionally
employing
unauthorized
aliens;
prohibition; false and frivolous complaints;
violation; classification; license suspension and
revocation; affirmative defense
A. AN EMPLOYER SHALL NOT INTENTIONALLY EMPLOY AN UNAUTHORIZED ALIEN.
IF, IN THE CASE WHEN AN EMPLOYER USES A CONTRACT, SUBCONTRACT OR OTHER
INDEPENDENT CONTRACTOR AGREEMENT TO OBTAIN THE LABOR OF AN ALIEN IN THIS
STATE, THE EMPLOYER INTENTIONALLY CONTRACTS WITH AN UNAUTHORIZED ALIEN OR
WITH A PERSON WHO EMPLOYS OR CONTRACTS WITH AN UNAUTHORIZED ALIEN TO PERFORM
THE LABOR, THE EMPLOYER VIOLATES THIS SUBSECTION.
B. THE ATTORNEY GENERAL SHALL PRESCRIBE A COMPLAINT FORM FOR A PERSON
TO ALLEGE A VIOLATION OF SUBSECTION A OF THIS SECTION. THE COMPLAINANT SHALL
NOT BE REQUIRED TO LIST THE COMPLAINANT'S SOCIAL SECURITY NUMBER ON THE
COMPLAINT FORM OR TO HAVE THE COMPLAINT FORM NOTARIZED. ON RECEIPT OF A
COMPLAINT ON A PRESCRIBED COMPLAINT FORM THAT AN EMPLOYER ALLEGEDLY
INTENTIONALLY EMPLOYS AN UNAUTHORIZED ALIEN, THE ATTORNEY GENERAL OR COUNTY
ATTORNEY SHALL INVESTIGATE WHETHER THE EMPLOYER HAS VIOLATED SUBSECTION A OF
THIS SECTION. IF A COMPLAINT IS RECEIVED BUT IS NOT SUBMITTED ON A
PRESCRIBED COMPLAINT FORM, THE ATTORNEY GENERAL OR COUNTY ATTORNEY MAY
INVESTIGATE WHETHER THE EMPLOYER HAS VIOLATED SUBSECTION A OF THIS SECTION.
THIS SUBSECTION SHALL NOT BE CONSTRUED TO PROHIBIT THE FILING OF ANONYMOUS
COMPLAINTS THAT ARE NOT SUBMITTED ON A PRESCRIBED COMPLAINT FORM.
THE
ATTORNEY GENERAL OR COUNTY ATTORNEY SHALL NOT INVESTIGATE COMPLAINTS THAT ARE
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BASED SOLELY ON RACE, COLOR OR NATIONAL ORIGIN. A COMPLAINT THAT IS


SUBMITTED TO A COUNTY ATTORNEY SHALL BE SUBMITTED TO THE COUNTY ATTORNEY IN
THE COUNTY IN WHICH THE ALLEGED UNAUTHORIZED ALIEN IS OR WAS EMPLOYED BY THE
EMPLOYER. THE COUNTY SHERIFF OR ANY OTHER LOCAL LAW ENFORCEMENT AGENCY MAY
ASSIST IN INVESTIGATING A COMPLAINT. WHEN INVESTIGATING A COMPLAINT, THE
ATTORNEY GENERAL OR COUNTY ATTORNEY SHALL VERIFY THE WORK AUTHORIZATION OF
THE ALLEGED UNAUTHORIZED ALIEN WITH THE FEDERAL GOVERNMENT PURSUANT TO
8 UNITED STATES CODE SECTION 1373(c). A STATE, COUNTY OR LOCAL OFFICIAL
SHALL NOT ATTEMPT TO INDEPENDENTLY MAKE A FINAL DETERMINATION ON WHETHER AN
ALIEN IS AUTHORIZED TO WORK IN THE UNITED STATES. AN ALIEN'S IMMIGRATION
STATUS OR WORK AUTHORIZATION STATUS SHALL BE VERIFIED WITH THE FEDERAL
GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c). A PERSON WHO
KNOWINGLY FILES A FALSE AND FRIVOLOUS COMPLAINT UNDER THIS SUBSECTION IS
GUILTY OF A CLASS 3 MISDEMEANOR.
C. IF, AFTER AN INVESTIGATION, THE ATTORNEY GENERAL OR COUNTY ATTORNEY
DETERMINES THAT THE COMPLAINT IS NOT FALSE AND FRIVOLOUS:
1. THE ATTORNEY GENERAL OR COUNTY ATTORNEY SHALL NOTIFY THE UNITED
STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OF THE UNAUTHORIZED ALIEN.
2. THE ATTORNEY GENERAL OR COUNTY ATTORNEY SHALL NOTIFY THE LOCAL LAW
ENFORCEMENT AGENCY OF THE UNAUTHORIZED ALIEN.
3. THE ATTORNEY GENERAL SHALL NOTIFY THE APPROPRIATE COUNTY ATTORNEY
TO BRING AN ACTION PURSUANT TO SUBSECTION D OF THIS SECTION IF THE COMPLAINT
WAS ORIGINALLY FILED WITH THE ATTORNEY GENERAL.
D. AN ACTION FOR A VIOLATION OF SUBSECTION A OF THIS SECTION SHALL BE
BROUGHT AGAINST THE EMPLOYER BY THE COUNTY ATTORNEY IN THE COUNTY WHERE THE
UNAUTHORIZED ALIEN EMPLOYEE IS OR WAS EMPLOYED BY THE EMPLOYER. THE COUNTY
ATTORNEY SHALL NOT BRING AN ACTION AGAINST ANY EMPLOYER FOR ANY VIOLATION OF
SUBSECTION A OF THIS SECTION THAT OCCURS BEFORE JANUARY 1, 2008. A SECOND
VIOLATION OF THIS SECTION SHALL BE BASED ONLY ON AN UNAUTHORIZED ALIEN WHO IS
OR WAS EMPLOYED BY THE EMPLOYER AFTER AN ACTION HAS BEEN BROUGHT FOR A
VIOLATION OF SUBSECTION A OF THIS SECTION OR SECTION 23-212, SUBSECTION A.
E. FOR ANY ACTION IN SUPERIOR COURT UNDER THIS SECTION, THE COURT
SHALL EXPEDITE THE ACTION, INCLUDING ASSIGNING THE HEARING AT THE EARLIEST
PRACTICABLE DATE.
F. ON A FINDING OF A VIOLATION OF SUBSECTION A OF THIS SECTION:
1. FOR A FIRST VIOLATION, AS DESCRIBED IN PARAGRAPH 3 OF THIS
SUBSECTION, THE COURT SHALL:
(a) ORDER THE EMPLOYER TO TERMINATE THE EMPLOYMENT OF ALL UNAUTHORIZED
ALIENS.
(b) ORDER THE EMPLOYER TO BE SUBJECT TO A FIVE YEAR PROBATIONARY
PERIOD FOR THE BUSINESS LOCATION WHERE THE UNAUTHORIZED ALIEN PERFORMED WORK.
DURING THE PROBATIONARY PERIOD THE EMPLOYER SHALL FILE QUARTERLY REPORTS IN
THE FORM PROVIDED IN SECTION 23-722.01 WITH THE COUNTY ATTORNEY OF EACH NEW

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EMPLOYEE WHO IS HIRED BY THE EMPLOYER AT THE BUSINESS LOCATION WHERE THE
UNAUTHORIZED ALIEN PERFORMED WORK.
(c) ORDER THE APPROPRIATE AGENCIES TO SUSPEND ALL LICENSES DESCRIBED
IN SUBDIVISION (d) OF THIS PARAGRAPH THAT ARE HELD BY THE EMPLOYER FOR A
MINIMUM OF TEN DAYS. THE COURT SHALL BASE ITS DECISION ON THE LENGTH OF THE
SUSPENSION UNDER THIS SUBDIVISION ON ANY EVIDENCE OR INFORMATION SUBMITTED TO
IT DURING THE ACTION FOR A VIOLATION OF THIS SUBSECTION AND SHALL CONSIDER
THE FOLLOWING FACTORS, IF RELEVANT:
(i) THE NUMBER OF UNAUTHORIZED ALIENS EMPLOYED BY THE EMPLOYER.
(ii) ANY PRIOR MISCONDUCT BY THE EMPLOYER.
(iii) THE DEGREE OF HARM RESULTING FROM THE VIOLATION.
(iv) WHETHER THE EMPLOYER MADE GOOD FAITH EFFORTS TO COMPLY WITH ANY
APPLICABLE REQUIREMENTS.
(v) THE DURATION OF THE VIOLATION.
(vi) THE ROLE OF THE DIRECTORS, OFFICERS OR PRINCIPALS OF THE EMPLOYER
IN THE VIOLATION.
(vii) ANY OTHER FACTORS THE COURT DEEMS APPROPRIATE.
(d) ORDER THE EMPLOYER TO FILE A SIGNED SWORN AFFIDAVIT WITH THE
COUNTY ATTORNEY. THE AFFIDAVIT SHALL STATE THAT THE EMPLOYER HAS TERMINATED
THE EMPLOYMENT OF ALL UNAUTHORIZED ALIENS IN THIS STATE AND THAT THE EMPLOYER
WILL NOT INTENTIONALLY OR KNOWINGLY EMPLOY AN UNAUTHORIZED ALIEN IN THIS
STATE. THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO SUSPEND ALL
LICENSES SUBJECT TO THIS SUBDIVISION THAT ARE HELD BY THE EMPLOYER IF THE
EMPLOYER FAILS TO FILE A SIGNED SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY
WITHIN THREE BUSINESS DAYS AFTER THE ORDER IS ISSUED. ALL LICENSES THAT ARE
SUSPENDED UNDER THIS SUBDIVISION FOR FAILING TO FILE A SIGNED SWORN AFFIDAVIT
SHALL REMAIN SUSPENDED UNTIL THE EMPLOYER FILES A SIGNED SWORN AFFIDAVIT WITH
THE COUNTY ATTORNEY. FOR THE PURPOSES OF THIS SUBDIVISION, THE LICENSES THAT
ARE SUBJECT TO SUSPENSION UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE
HELD BY THE EMPLOYER SPECIFIC TO THE BUSINESS LOCATION WHERE THE UNAUTHORIZED
ALIEN PERFORMED WORK. IF THE EMPLOYER DOES NOT HOLD A LICENSE SPECIFIC TO
THE BUSINESS LOCATION WHERE THE UNAUTHORIZED ALIEN PERFORMED WORK, BUT A
LICENSE IS NECESSARY TO OPERATE THE EMPLOYER'S BUSINESS IN GENERAL, THE
LICENSES THAT ARE SUBJECT TO SUSPENSION UNDER THIS SUBDIVISION ARE ALL
LICENSES THAT ARE HELD BY THE EMPLOYER AT THE EMPLOYER'S PRIMARY PLACE OF
BUSINESS. ON RECEIPT OF THE COURT'S ORDER AND NOTWITHSTANDING ANY OTHER LAW,
THE APPROPRIATE AGENCIES SHALL SUSPEND THE LICENSES ACCORDING TO THE COURT'S
ORDER. THE COURT SHALL SEND A COPY OF THE COURT'S ORDER TO THE ATTORNEY
GENERAL AND THE ATTORNEY GENERAL SHALL MAINTAIN THE COPY PURSUANT TO
SUBSECTION G OF THIS SECTION.
2. FOR A SECOND VIOLATION, AS DESCRIBED IN PARAGRAPH 3 OF THIS
SUBSECTION, THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO PERMANENTLY
REVOKE ALL LICENSES THAT ARE HELD BY THE EMPLOYER SPECIFIC TO THE BUSINESS
LOCATION WHERE THE UNAUTHORIZED ALIEN PERFORMED WORK. IF THE EMPLOYER DOES
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NOT HOLD A LICENSE SPECIFIC TO THE BUSINESS LOCATION WHERE THE UNAUTHORIZED
ALIEN PERFORMED WORK, BUT A LICENSE IS NECESSARY TO OPERATE THE EMPLOYER'S
BUSINESS IN GENERAL, THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO
PERMANENTLY REVOKE ALL LICENSES THAT ARE HELD BY THE EMPLOYER AT THE
EMPLOYER'S PRIMARY PLACE OF BUSINESS. ON RECEIPT OF THE ORDER AND
NOTWITHSTANDING ANY OTHER LAW, THE APPROPRIATE AGENCIES SHALL IMMEDIATELY
REVOKE THE LICENSES.
3. THE VIOLATION SHALL BE CONSIDERED:
(a) A FIRST VIOLATION BY AN EMPLOYER AT A BUSINESS LOCATION IF THE
VIOLATION DID NOT OCCUR DURING A PROBATIONARY PERIOD ORDERED BY THE COURT
UNDER THIS SUBSECTION OR SECTION 23-212, SUBSECTION F FOR THAT EMPLOYER'S
BUSINESS LOCATION.
(b) A SECOND VIOLATION BY AN EMPLOYER AT A BUSINESS LOCATION IF THE
VIOLATION OCCURRED DURING A PROBATIONARY PERIOD ORDERED BY THE COURT UNDER
THIS SUBSECTION OR SECTION 23-212, SUBSECTION F FOR THAT EMPLOYER'S BUSINESS
LOCATION.
G. THE ATTORNEY GENERAL SHALL MAINTAIN COPIES OF COURT ORDERS THAT ARE
RECEIVED PURSUANT TO SUBSECTION F OF THIS SECTION AND SHALL MAINTAIN A
DATABASE OF THE EMPLOYERS AND BUSINESS LOCATIONS THAT HAVE A FIRST VIOLATION
OF SUBSECTION A OF THIS SECTION AND MAKE THE COURT ORDERS AVAILABLE ON THE
ATTORNEY GENERAL'S WEBSITE.
H. ON DETERMINING WHETHER AN EMPLOYEE IS AN UNAUTHORIZED ALIEN, THE
COURT SHALL CONSIDER ONLY THE FEDERAL GOVERNMENT'S DETERMINATION PURSUANT TO
8 UNITED STATES CODE SECTION 1373(c). THE FEDERAL GOVERNMENT'S DETERMINATION
CREATES A REBUTTABLE PRESUMPTION OF THE EMPLOYEE'S LAWFUL STATUS. THE COURT
MAY TAKE JUDICIAL NOTICE OF THE FEDERAL GOVERNMENT'S DETERMINATION AND MAY
REQUEST THE FEDERAL GOVERNMENT TO PROVIDE AUTOMATED OR TESTIMONIAL
VERIFICATION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
I. FOR THE PURPOSES OF THIS SECTION, PROOF OF VERIFYING THE EMPLOYMENT
AUTHORIZATION OF AN EMPLOYEE THROUGH THE E-VERIFY PROGRAM CREATES A
REBUTTABLE PRESUMPTION THAT AN EMPLOYER DID NOT INTENTIONALLY EMPLOY AN
UNAUTHORIZED ALIEN.
J. FOR THE PURPOSES OF THIS SECTION, AN EMPLOYER THAT ESTABLISHES THAT
IT HAS COMPLIED IN GOOD FAITH WITH THE REQUIREMENTS OF 8 UNITED STATES CODE
SECTION 1324a(b) ESTABLISHES AN AFFIRMATIVE DEFENSE THAT THE EMPLOYER DID NOT
INTENTIONALLY EMPLOY AN UNAUTHORIZED ALIEN. AN EMPLOYER IS CONSIDERED TO
HAVE COMPLIED WITH THE REQUIREMENTS OF 8 UNITED STATES CODE SECTION 1324a(b),
NOTWITHSTANDING AN ISOLATED, SPORADIC OR ACCIDENTAL TECHNICAL OR PROCEDURAL
FAILURE TO MEET THE REQUIREMENTS, IF THERE IS A GOOD FAITH ATTEMPT TO COMPLY
WITH THE REQUIREMENTS.

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Sec. 6.
23-214.

Section 23-214, Arizona Revised Statutes, is amended to read:


Verification of employment eligibility; E-verify
program; economic development incentives; list of
registered employers
A. After December 31, 2007, every employer, after hiring an employee,
shall verify the employment eligibility of the employee through the basic
pilot E-VERIFY program.
B. IN ADDITION TO ANY OTHER REQUIREMENT FOR AN EMPLOYER TO RECEIVE AN
ECONOMIC DEVELOPMENT INCENTIVE FROM A GOVERNMENT ENTITY, THE EMPLOYER SHALL
REGISTER WITH AND PARTICIPATE IN THE E-VERIFY PROGRAM. BEFORE RECEIVING THE
ECONOMIC DEVELOPMENT INCENTIVE, THE EMPLOYER SHALL PROVIDE PROOF TO THE
GOVERNMENT ENTITY THAT THE EMPLOYER IS REGISTERED WITH AND IS PARTICIPATING
IN THE E-VERIFY PROGRAM. IF THE GOVERNMENT ENTITY DETERMINES THAT THE
EMPLOYER IS NOT COMPLYING WITH THIS SUBSECTION, THE GOVERNMENT ENTITY SHALL
NOTIFY THE EMPLOYER BY CERTIFIED MAIL OF THE GOVERNMENT ENTITY'S
DETERMINATION OF NONCOMPLIANCE AND THE EMPLOYER'S RIGHT TO APPEAL THE
DETERMINATION. ON A FINAL DETERMINATION OF NONCOMPLIANCE, THE EMPLOYER SHALL
REPAY ALL MONIES RECEIVED AS AN ECONOMIC DEVELOPMENT INCENTIVE TO THE
GOVERNMENT ENTITY WITHIN THIRTY DAYS OF THE FINAL DETERMINATION. FOR THE
PURPOSES OF THIS SUBSECTION:
1. "ECONOMIC DEVELOPMENT INCENTIVE" MEANS ANY GRANT, LOAN OR
PERFORMANCE-BASED INCENTIVE FROM ANY GOVERNMENT ENTITY THAT IS AWARDED AFTER
SEPTEMBER 30, 2008. ECONOMIC DEVELOPMENT INCENTIVE DOES NOT INCLUDE ANY TAX
PROVISION UNDER TITLE 42 OR 43.
2. "GOVERNMENT ENTITY" MEANS THIS STATE AND ANY POLITICAL SUBDIVISION
OF THIS STATE THAT RECEIVES AND USES TAX REVENUES.
C. EVERY THREE MONTHS THE ATTORNEY GENERAL SHALL REQUEST FROM THE
UNITED STATES DEPARTMENT OF HOMELAND SECURITY A LIST OF EMPLOYERS FROM THIS
STATE THAT ARE REGISTERED WITH THE E-VERIFY PROGRAM. ON RECEIPT OF THE LIST
OF EMPLOYERS, THE ATTORNEY GENERAL SHALL MAKE THE LIST AVAILABLE ON THE
ATTORNEY GENERAL'S WEBSITE.
Sec. 7. Title 23, chapter 2, article 2, Arizona Revised Statutes, is
amended by adding sections 23-215 and 23-216, to read:
23-215. Voluntary employer enhanced compliance program; program
termination
A. THE ATTORNEY GENERAL SHALL ESTABLISH THE VOLUNTARY EMPLOYER
ENHANCED COMPLIANCE PROGRAM. THE PROGRAM IS VOLUNTARY AND AN EMPLOYER IS NOT
REQUIRED TO ENROLL IN THE PROGRAM.
B. AN EMPLOYER THAT IS ON PROBATION UNDER SECTION 23-212 OR 23-212.01
MAY NOT ENROLL IN THE VOLUNTARY EMPLOYER ENHANCED COMPLIANCE PROGRAM. A
COURT SHALL NOT CONSIDER NONENROLLMENT IN THE VOLUNTARY EMPLOYER ENHANCED
COMPLIANCE PROGRAM AS A FACTOR WHEN DETERMINING WHETHER TO SUSPEND OR REVOKE
A LICENSE UNDER SECTION 23-212 OR 23-212.01.

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C. TO ENROLL IN THE VOLUNTARY EMPLOYER ENHANCED COMPLIANCE PROGRAM, AN


EMPLOYER SHALL SUBMIT A SIGNED SWORN AFFIDAVIT TO THE ATTORNEY GENERAL. THE
AFFIDAVIT SHALL STATE THAT THE EMPLOYER AGREES TO PERFORM ALL OF THE
FOLLOWING ACTIONS IN GOOD FAITH:
1. AFTER HIRING AN EMPLOYEE, THE EMPLOYER SHALL VERIFY THE EMPLOYMENT
ELIGIBILITY OF THE EMPLOYEE THROUGH THE E-VERIFY PROGRAM.
2. TO ENSURE THE ACCURACY OF REPORTING WAGES TO THE SOCIAL SECURITY
ADMINISTRATION, THE EMPLOYER SHALL VERIFY THE ACCURACY OF SOCIAL SECURITY
NUMBERS THROUGH THE SOCIAL SECURITY NUMBER VERIFICATION SERVICE FOR ANY
EMPLOYEE WHO IS NOT VERIFIED THROUGH THE E-VERIFY PROGRAM. WITHIN THIRTY
DAYS AFTER ENROLLING IN THE VOLUNTARY EMPLOYER ENHANCED COMPLIANCE PROGRAM,
THE EMPLOYER SHALL SUBMIT THE NECESSARY INFORMATION TO THE SOCIAL SECURITY
NUMBER VERIFICATION SERVICE, INCLUDING THE FULL NAME, THE SOCIAL SECURITY
NUMBER, THE DATE OF BIRTH AND THE GENDER OF EACH EMPLOYEE. ON RECEIPT OF A
FAILED VERIFICATION RESULT, THE EMPLOYER SHALL NOTIFY THE EMPLOYEE OF THE
DATE ON WHICH THE EMPLOYER RECEIVED THE FAILED RESULT AND INSTRUCT THE
EMPLOYEE TO RESOLVE THE DISCREPANCY WITH THE SOCIAL SECURITY ADMINISTRATION
WITHIN NINETY DAYS AFTER THAT DATE. THE EMPLOYER AND EMPLOYEE SHALL RESOLVE
ANY FAILED RESULT WITHIN NINETY DAYS AFTER THE DATE ON WHICH THE EMPLOYER
RECEIVED THE FAILED RESULT. IF THE FAILED RESULT IS NOT RESOLVED WITHIN THE
NINETY-DAY PERIOD BUT THE EMPLOYER AND EMPLOYEE ARE CONTINUING TO ACTIVELY
AND CONSISTENTLY WORK TOWARD RESOLVING THE FAILED RESULT WITH THE SOCIAL
SECURITY ADMINISTRATION, THE NINETY-DAY PERIOD DOES NOT APPLY AS LONG AS THE
EMPLOYER AND EMPLOYEE HAVE DOCUMENTED PROOF OF THESE ONGOING EFFORTS TO
RESOLVE THE FAILED RESULT IN GOOD FAITH AND HAVE PROVIDED THE DOCUMENTED
PROOF TO THE ATTORNEY GENERAL. THE EMPLOYER SHALL VERIFY THE ACCURACY OF THE
SOCIAL SECURITY NUMBERS AND RESOLVE ANY FAILED VERIFICATION RESULTS IN A
CONSISTENT MANNER FOR ALL EMPLOYEES.
3. IN RESPONSE TO A WRITTEN REQUEST BY THE ATTORNEY GENERAL OR COUNTY
ATTORNEY STATING THE NAME OF AN EMPLOYEE FOR WHOM A COMPLAINT HAS BEEN
RECEIVED UNDER SECTION 23-212 OR 23-212.01, THE EMPLOYER SHALL PROVIDE THE
ATTORNEY GENERAL OR COUNTY ATTORNEY THE DOCUMENTS INDICATING THAT THE
EMPLOYEE WAS VERIFIED THROUGH THE E-VERIFY PROGRAM OR THAT THE ACCURACY OF
THE EMPLOYEE'S WAGE REPORT WAS VERIFIED THROUGH THE SOCIAL SECURITY NUMBER
VERIFICATION SERVICE UNDER THIS SECTION.
D. AN EMPLOYER THAT IS ENROLLED IN THE VOLUNTARY EMPLOYER ENHANCED
COMPLIANCE PROGRAM SHALL NOT BE IN VIOLATION OF SECTION 23-212, SUBSECTION A
OR SECTION 23-212.01, SUBSECTION A REGARDING AN EMPLOYEE NAMED IN A COMPLAINT
UNDER SECTION 23-212 OR 23-212.01 IF THE EMPLOYER HAS COMPLETED BOTH OF THE
FOLLOWING:
1. IN GOOD FAITH VERIFIED THE EMPLOYMENT ELIGIBILITY OF THE EMPLOYEE
NAMED IN THE COMPLAINT THROUGH THE E-VERIFY PROGRAM OR IN GOOD FAITH VERIFIED
THE ACCURACY OF THE SOCIAL SECURITY NUMBER OF THE EMPLOYEE NAMED IN THE

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COMPLAINT THROUGH THE SOCIAL SECURITY NUMBER VERIFICATION SYSTEM AS REQUIRED


BY SUBSECTION C, PARAGRAPHS 1 AND 2 OF THIS SECTION.
2. PROVIDED THE ATTORNEY GENERAL OR COUNTY ATTORNEY WITH THE
DOCUMENTS, AS REQUIRED BY SUBSECTION C, PARAGRAPH 3 OF THIS SECTION,
INDICATING THAT THE EMPLOYER VERIFIED THE EMPLOYEE NAMED IN THE COMPLAINT.
E. THE ATTORNEY GENERAL SHALL MAINTAIN A LIST OF EMPLOYERS ENROLLED IN
THE VOLUNTARY EMPLOYER ENHANCED COMPLIANCE PROGRAM AND MAKE THE LIST
AVAILABLE ON THE ATTORNEY GENERAL'S WEBSITE.
F. THE ATTORNEY GENERAL SHALL DEVELOP A FORM OF RECOGNITION THAT AN
EMPLOYER MAY DISPLAY TO THE GENERAL PUBLIC FOR ENROLLING IN THE VOLUNTARY
EMPLOYER ENHANCED COMPLIANCE PROGRAM.
G. IF AN EMPLOYER DOES NOT FULLY COMPLY WITH THIS SECTION, THE
ATTORNEY GENERAL SHALL TERMINATE THE EMPLOYER'S ENROLLMENT IN THE VOLUNTARY
EMPLOYER ENHANCED COMPLIANCE PROGRAM. AT ANY TIME, AN EMPLOYER MAY
VOLUNTARILY WITHDRAW FROM THE VOLUNTARY EMPLOYER ENHANCED COMPLIANCE PROGRAM
BY NOTIFYING THE ATTORNEY GENERAL. BEGINNING ON THE DATE OF TERMINATION OR
WITHDRAWAL, SUBSECTION D OF THIS SECTION NO LONGER APPLIES TO THE EMPLOYER
AND THE EMPLOYER SHALL IMMEDIATELY REMOVE ANY FORM OF RECOGNITION FROM PUBLIC
DISPLAY THAT IS AUTHORIZED UNDER THIS SECTION.
H. THE PROGRAM ESTABLISHED BY THIS SECTION ENDS ON JULY 1, 2018
PURSUANT TO SECTION 41-3102.
23-216. Independent contractors; applicability
FOR THE PURPOSES OF THIS ARTICLE, INDEPENDENT CONTRACTOR STATUS APPLIES
TO AN INDIVIDUAL WHO PERFORMS SERVICES AND IS NOT AN EMPLOYEE PURSUANT TO
SECTION 3508 OF THE INTERNAL REVENUE CODE.
Sec. 8. Title 23, chapter 2, article 7, Arizona Revised Statutes, is
amended by adding section 23-361.01, to read:
23-361.01. Employer requirements; cash payments; unlawful
practices; civil penalty
A. AN EMPLOYER THAT HAS TWO OR MORE EMPLOYEES AND PAYS HOURLY WAGES OR
SALARY BY CASH TO ANY EMPLOYEE SHALL COMPLY WITH ALL OF THE FOLLOWING:
1. THE INCOME TAX WITHHOLDING LAWS PRESCRIBED IN TITLE 43, CHAPTER 4.
2. THE EMPLOYER REPORTING LAWS PRESCRIBED IN SECTION 23-722.01.
3. THE EMPLOYMENT SECURITY LAWS PRESCRIBED IN CHAPTER 4 OF THIS TITLE.
4. THE WORKERS' COMPENSATION LAWS PRESCRIBED IN CHAPTER 6 OF THIS
TITLE.
B. FOR A VIOLATION OF SUBSECTION A OF THIS SECTION, THE ATTORNEY
GENERAL MAY BRING AN ACTION IN SUPERIOR COURT AGAINST AN EMPLOYER. ON A
FINDING OF A VIOLATION OF SUBSECTION A OF THIS SECTION, THE COURT SHALL ORDER
THE EMPLOYER TO PAY A CIVIL PENALTY THAT IS EQUAL TO TREBLE THE AMOUNT OF ALL
WITHHOLDINGS, PAYMENTS, CONTRIBUTIONS OR PREMIUMS THAT THE EMPLOYER FAILED TO
REMIT AS PRESCRIBED BY SUBSECTION A OF THIS SECTION OR FIVE THOUSAND DOLLARS
FOR EACH EMPLOYEE FOR WHOM A VIOLATION WAS COMMITTED, WHICHEVER IS GREATER.

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C. THE COURT SHALL TRANSMIT THE MONIES COLLECTED PURSUANT TO


SUBSECTION B OF THIS SECTION TO THE STATE TREASURER, AND THE STATE TREASURER
SHALL DEPOSIT THE MONIES IN THE STATE GENERAL FUND. MONIES DEPOSITED IN THE
STATE GENERAL FUND PURSUANT TO THIS SUBSECTION SHALL BE EQUALLY APPROPRIATED
TO THE DEPARTMENT OF EDUCATION AND THE DEPARTMENT OF HEALTH SERVICES FOR THE
PURPOSES OF OFFSETTING INCREASED COSTS TO THIS STATE BY UNAUTHORIZED ALIENS.
D. THE CIVIL PENALTY UNDER THIS SECTION IS IN ADDITION TO ANY OTHER
PENALTIES THAT MAY BE IMPOSED BY LAW.
Sec. 9. Title 41, chapter 6, Arizona Revised Statutes, is amended by
adding article 7.2, to read:
ARTICLE 7.2. LICENSING ELIGIBILITY
41-1080. Licensing
eligibility;
authorized
presence;
documentation; applicability; definitions
A. AFTER SEPTEMBER 30, 2008, AN AGENCY OR POLITICAL SUBDIVISION OF
THIS STATE SHALL NOT ISSUE A LICENSE TO AN INDIVIDUAL IF THE INDIVIDUAL DOES
NOT PRESENT ANY OF THE FOLLOWING DOCUMENTS TO THE AGENCY OR POLITICAL
SUBDIVISION INDICATING THAT THE INDIVIDUAL'S PRESENCE IN THE UNITED STATES IS
AUTHORIZED UNDER FEDERAL LAW:
1. AN ARIZONA DRIVER LICENSE ISSUED AFTER 1996 OR AN ARIZONA
NONOPERATING IDENTIFICATION LICENSE.
2. A DRIVER LICENSE ISSUED BY A STATE THAT VERIFIES LAWFUL PRESENCE IN
THE UNITED STATES.
3. A BIRTH CERTIFICATE OR DELAYED BIRTH CERTIFICATE ISSUED IN ANY
STATE, TERRITORY OR POSSESSION OF THE UNITED STATES.
4. A UNITED STATES CERTIFICATE OF BIRTH ABROAD.
5. A UNITED STATES PASSPORT.
6. A FOREIGN PASSPORT WITH A UNITED STATES VISA.
7. AN I-94 FORM WITH A PHOTOGRAPH.
8. A UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES EMPLOYMENT
AUTHORIZATION DOCUMENT OR REFUGEE TRAVEL DOCUMENT.
9. A UNITED STATES CERTIFICATE OF NATURALIZATION.
10. A UNITED STATES CERTIFICATE OF CITIZENSHIP.
11. A TRIBAL CERTIFICATE OF INDIAN BLOOD.
12. A TRIBAL OR BUREAU OF INDIAN AFFAIRS AFFIDAVIT OF BIRTH.
B. THIS SECTION DOES NOT APPLY TO AN INDIVIDUAL, IF ALL OF THE
FOLLOWING APPLY:
1. THE INDIVIDUAL IS A CITIZEN OF A FOREIGN COUNTRY OR, IF AT THE TIME
OF APPLICATION, THE INDIVIDUAL RESIDES IN A FOREIGN COUNTRY.
2. THE BENEFITS THAT ARE RELATED TO THE LICENSE DO NOT REQUIRE THE
INDIVIDUAL TO BE PRESENT IN THE UNITED STATES IN ORDER TO RECEIVE THOSE
BENEFITS.

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C. FOR THE PURPOSES OF THIS SECTION:


1. "AGENCY" MEANS ANY AGENCY, DEPARTMENT, BOARD OR COMMISSION OF THIS
STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE THAT ISSUES A LICENSE FOR
THE PURPOSES OF OPERATING A BUSINESS IN THIS STATE.
2. "LICENSE" MEANS ANY AGENCY PERMIT, CERTIFICATE, APPROVAL,
REGISTRATION, CHARTER OR SIMILAR FORM OF AUTHORIZATION THAT IS REQUIRED BY
LAW AND THAT IS ISSUED BY ANY AGENCY FOR THE PURPOSES OF OPERATING A BUSINESS
IN THIS STATE.
Sec. 10. Title 41, Arizona Revised Statutes, is amended by adding
chapter 44, to read:
CHAPTER 44
AUTHORIZED PRESENCE REQUIREMENTS
ARTICLE 1. GOVERNMENT PROCUREMENT
41-4401. Government
procurement;
E-verify
requirement;
definitions
A. AFTER SEPTEMBER 30, 2008, A GOVERNMENT ENTITY SHALL NOT AWARD A
CONTRACT TO ANY CONTRACTOR OR SUBCONTRACTOR THAT FAILS TO COMPLY WITH SECTION
23-214, SUBSECTION A.
EVERY GOVERNMENT ENTITY SHALL ENSURE THAT EVERY
GOVERNMENT ENTITY CONTRACTOR AND SUBCONTRACTOR COMPLIES WITH THE FEDERAL
IMMIGRATION LAWS AND REGULATIONS THAT RELATE TO THEIR EMPLOYEES AND SECTION
23-214, SUBSECTION A.
EVERY GOVERNMENT ENTITY SHALL REQUIRE THAT EVERY
GOVERNMENT ENTITY CONTRACT INCLUDE ALL OF THE FOLLOWING PROVISIONS:
1. THAT EACH CONTRACTOR AND SUBCONTRACTOR WARRANTS THEIR COMPLIANCE
WITH ALL FEDERAL IMMIGRATION LAWS AND REGULATIONS THAT RELATE TO THEIR
EMPLOYEES AND THEIR COMPLIANCE WITH SECTION 23-214, SUBSECTION A.
2. THAT A BREACH OF A WARRANTY UNDER PARAGRAPH 1 SHALL BE DEEMED A
MATERIAL BREACH OF THE CONTRACT THAT IS SUBJECT TO PENALTIES UP TO AND
INCLUDING TERMINATION OF THE CONTRACT.
3. THAT THE GOVERNMENT ENTITY RETAINS THE LEGAL RIGHT TO INSPECT THE
PAPERS OF ANY CONTRACTOR OR SUBCONTRACTOR EMPLOYEE WHO WORKS ON THE CONTRACT
TO ENSURE THAT THE CONTRACTOR OR SUBCONTRACTOR IS COMPLYING WITH THE WARRANTY
UNDER PARAGRAPH 1.
B. EVERY GOVERNMENT ENTITY THAT ENTERS INTO A CONTRACT SHALL ESTABLISH
PROCEDURES TO CONDUCT RANDOM VERIFICATION OF THE EMPLOYMENT RECORDS OF
GOVERNMENT ENTITY CONTRACTORS AND SUBCONTRACTORS TO ENSURE THAT THE
CONTRACTORS AND SUBCONTRACTORS ARE COMPLYING WITH THEIR WARRANTIES.
C. A GOVERNMENT ENTITY SHALL NOT DEEM A GOVERNMENT ENTITY CONTRACTOR
OR SUBCONTRACTOR IN MATERIAL BREACH OF A CONTRACT IF THE CONTRACTOR OR
SUBCONTRACTOR ESTABLISHES THAT IT HAS COMPLIED WITH THE EMPLOYMENT
VERIFICATION PROVISIONS PRESCRIBED BY SECTIONS 274A AND 274B OF THE FEDERAL
IMMIGRATION AND NATIONALITY ACT AND THE E-VERIFY REQUIREMENTS PRESCRIBED BY
SECTION 23-214, SUBSECTION A.

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D. FOR THE PURPOSES OF THIS SECTION:


1. "CONTRACT" MEANS ALL TYPES OF GOVERNMENT ENTITY AGREEMENTS,
REGARDLESS OF WHAT THEY MAY BE CALLED, FOR THE PROCUREMENT OF SERVICES IN
THIS STATE.
2. "CONTRACTOR" MEANS ANY PERSON WHO HAS A CONTRACT WITH A GOVERNMENT
ENTITY.
3. "E-VERIFY PROGRAM" MEANS THE EMPLOYMENT VERIFICATION PILOT PROGRAM
AS JOINTLY ADMINISTERED BY THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY
AND THE SOCIAL SECURITY ADMINISTRATION OR ANY OF ITS SUCCESSOR PROGRAMS.
4. "GOVERNMENT ENTITY" MEANS THIS STATE AND ANY POLITICAL SUBDIVISION
OF THIS STATE THAT RECEIVES AND USES TAX REVENUES.
5. "SERVICES" MEANS THE FURNISHING OF LABOR, TIME OR EFFORT IN THIS
STATE BY A CONTRACTOR OR SUBCONTRACTOR. SERVICES INCLUDE CONSTRUCTION OR
MAINTENANCE OF ANY STRUCTURE, BUILDING OR TRANSPORTATION FACILITY OR
IMPROVEMENT OF REAL PROPERTY.
6. "SUBCONTRACTOR" MEANS A PERSON WHO CONTRACTS TO PERFORM WORK OR
RENDER SERVICE TO A CONTRACTOR OR TO ANOTHER SUBCONTRACTOR AS A PART OF A
CONTRACT WITH A GOVERNMENT ENTITY.
Sec. 11. Severability
If any 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 this act that can be given effect without the invalid
provision or application, and to this end the provisions of this act are
severable.
Sec. 12. Emergency
This act is an emergency measure that is necessary to preserve the
public peace, health or safety and is operative immediately as provided by
law.

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Puente Arizona et al v. Arpaio et al, Docket No. 2:14-cv-01356 (D. Ariz. Jun 18, 2014), Court Docket

General Information

Court

United States District Court for the District of Arizona; United


States District Court for the District of Arizona

Federal Nature of Suit

Constitutionality of State Statutes[950]

Docket Number

2:14-cv-01356

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