Charles Kuck, ABIL President
Musings on Immigration

The Georgia State Senate acted recently to pass an anti-immigration measure aimed at stopping 300 Georgia residents who happen to not have legal status from attending public colleges and universities in Georgia, despite the fact that they are paying out-of-state tuition.  The Georgia House is moving to pass similar legislation at the behest of House Judiciary Non-Civil Committee Chair, Cobb County resident, and AllState Insurance Attorney Rich Gollick.

THE RATIONALE
The rationale behind this bill (besides the red herring argument that local governments needed clarification on whether they could accept electronic copies of "secure and verifiable documents"), is that the undocumented students are somehow using taxpayer dollars and taking spots from U.S. citizens.  You heard these arguments from all the sponsors of this bill in the Senate.  These reasons for supporting this bill are not based in either reality or facts.  In Georgia, no undocumented student can go to a Georgia state college or university that refuses admission to qualified U.S. citizens. That means that there are NO undocumented students at UGA, Georgia Tech, GSU, Georgia State College, or Georgia Health Sciences University (formerly the Medical College of Georgia).  So, the FACT is that no undocumented student is taking a spot from another U.S. citizen who is a qualified applicant for that Georgia college.  

The other rationale for supporting this bill is that undocumented students are using taxpayer money to attend Georgia colleges. Again, this is false.  Under rules passed last year by the State Board of Regents, undocumented students must pay out-of-state tuition (even though virtually all of them grew up and reside in Georgia). The actual cost of the education provided is LESS than the cost of out-of-state tuition, which means that undocumented students actually help FUND the education costs of U.S. citizens!  These students are not costing the state any money, they are GIVING money to Georgia.

Finally, let's not forget we are talking about 300 young men and young women, with the courage, fortitude and focus to push forward in the face of overwhelming odds. These are NOT the children from whom we should be stealing hope. These are the children we should be applauding.  Some desperately argue that "why are these kids going to school?  They cannot work upon graduation."  Not true! These kids might then qualify for a work visa, which they could obtain, along with a waiver under immigration law, after leaving the U.S. and return and work here.  Further, these bright, dedicated, and visionary students could also decide to leave the U.S. with their education for better opportunities elsewhere, like many of the foreign students already enrolled in our Georgia colleges.  

WHO IS BEHIND THIS BILL?
But, the facts are not important when dealing with the Georgia State Legislature.  Senate Bill 458 was the focus of a great deal of rhetoric from the usual crowd of anti-immigration Senators, such as Senator Chip Rogers and Senator Barry Loudermilk, the two chief sponsors of this legislation.  In one picture taken while Senator Rogers was testifying in favor of SB 458, it is clear who has his back--Georgia's own self-styled leader of the anti-immigration movement, Donald King.

After a great deal of debate, and apparently a lot of second thoughts on behalf of some rational Republicans in the State Senate, SB 458 passed along a party line vote, 34-19.  However, it appears that many of those voting had not actually read the language of the bill they voted one.  A review of SB 458 shows that it is not altogether clear exactly what this bill might now do, and in fact it has many more consequences that just blocking access to Georgia colleges for qualified undocumented students.  To paraphrase the words of Inigo Montoya from the Princess Bride:  "I do not think that the Bill means what you think it means."  

WHAT SB 458 REALLY MEANS
The current version of SB 458 reads, as virtually all legislation does, like Greek to most folks.  The key to understanding any piece of legislation in process it so look for the crossed out or underlined words.  Section 1 of SB 458 has a key amendment to Georgia Code Section 50-36-1, in the definition of "Public Benefit."  "Public Benefit is changed to be any public benefit "whether or not such benefit is subsidized by state or federal funds."  Each of the then previously listed items remained, such as adult education, authorization to conduct a commercial enterprise or business (business license), a business loan, health benefits, registration of a regulated business, rent assistance or subsidy, state grant or loan, State ID card, Tax certificate required to conduct a commercial business, temporary assistance for needy families, unemployment insurance and welfare to work.  The new item added appears to be "professional licenses."   All "Public Benefits" applicants will now have to go through the USCIS SAVE system to verify immigration status, before the state political entity can issue whatever benefit is requested.  

SECTION 1
Section 1 then requires the Attorney General to give a report by August 1 each year on WHAT is actually included in the Public Benefits listed in the statute, specifically forbidding Attorney General Olens from removing anything from the list, only allowing him to ADD things to the list.  So, it appears the state legislature is telling the Attorney General to figure out what each of the Public Benefits actually include. Attorney General Sam Olens will have to decide if "Adult Education" actually includes post-secondary education in Georgia.  What is Adult Education?  Who knows, it is not defined in Georgia Law.  If the Attorney General does not include post-secondary education" in his definition, then presumably Donald King can file a complaint against the Attorney General with the Georgia Immigration Enforcement Review Board for not enforcing immigration related laws in Georgia.  Why would Senator Chip Rogers want to do this to Attorney General Sam Olens?  Maybe someone should ask him.

Section 1 also struck from another section of that same statute, the section which specifically stated that Verification of Lawful Presence was NOT required for Post-Secondary Education .   Presumably by striking this exemption, the State Senate is trying to send a message to the Attorney General that Adult Education does include Post-Secondary Education.  Another argument is that by striking the words "Post-Secondary Education" from the exemption, the State Senate is saying that it is not even necessary to consider post-secondary education as a public benefit, and thus the Board of Regents has complete authority to determine whether an undocumented student can attend a Georgia college.  Again, a rather vague, and unclear reference in the context of the larger bill.

The next key part of SB 458 adds the requirement that each applicant for ANY public benefit must submit a "secure and verifiable document," AND sign a sworn affidavit verifying their lawful presence in the U.S.  This creates an entire new level of bureaucracy in every layer of Georgia's government that deals with the public and provides benefits. Inarguably, it is an unnecessary requirement that will increase the costs of doing business with the state, lead to higher taxes, and does nothing to curtail the provision of services to those not authorized to receive it.  The next simple step is just to make all Georgians carry a State ID card.   Much like with HB 87, the Georgia State Senate did not have, introduce, or require a report on whether or not such a new regulatory requirement would COST the state or save the state money. If these effects are like anything done by HB 87, they will COST the state money!

SECTION 2
In Section 2, SB 458 struck from the secure and verifiable document list any foreign passport, unless that passport also includes a valid I-94 or I-94A, or "other federal document specify an alien's lawful immigration status." Obviously, the State Senate did not like Attorney General Olens' list! That is too bad, because the list was rationale, well thought out, and, under the circumstances, the best interpretation of the law.  There is no reason that a foreign passport (which the federal government accepts for a valid id for ALL purposes without an I-94 card), cannot be relied upon as a secure and verifiable document for identity purposes.  

Finally, Section 2 makes clear (and is the only legitimate reason for SB 458) that electronic copies of a secure and verifiable document are sufficient for purposes of Georgia law.  Frankly, everything else in this legislation should be struck, and this provision should be all that remains of SB 458. It would pass unanimously.   

WHAT A GOOD SB 458 LOOKS LIKE
Here is the language of a clean bill:

Copies of secure and verifiable documents submitted in person, by mail, or electronically shall satisfy the definition of 'secure and verifiable document' in this chapter.  For purposes of this paragraph, electronic submission includes a submission via facsimile, Internet, electronic texting, or any other electronically assisted transmission."

If passed by the House, these provisions of SB 458 would be Georgia law on July 1, 2012.  

THE RESULTS OF SB 458, IF PASSED WILL BE MORE FEDERAL COURT LITIGATION
By amending Georgia law with these items, Georgia is attempting to do what Alabama has done, interfere with the constitutional right of contract with the state and insert a requirement that every person dealing with the state for ANY reason prove that they are in the U.S. legally.  Like the new voter ID requirements, these provisions are not only aimed and targeted against the undocumented population, but will negatively impact the poor and minorities in ways that can only be described as intentional.  The 11th Circuit Court of appeals just stayed  a similar provision in the Alabama Anti-Immigration law, with the clear message that it would find this law unconstitutional if the Supreme Court does not overrule the Arizona Anti-Immigration Law current set for oral argument before the Supreme Court on April 25.  

One can only conclude that Senator Chip Rogers and Donald King want the Georgia Legislature to once again step into the quagmire of a federal lawsuit challenging another state anti-immigration statute.  I cannot believe they really want to go through this again.

by Charles Kuck, ABIL President
Musings on Immigration

This week both branches of the Georgia State Legislature have been busy in trying to pass anti-immigration legislation. The curious part of their efforts is what appears to be a complete lack of communication between the branches and what their specific purposes are.

THE GEORGIA HOUSE DISSES THE GEORGIA SENATE

On Monday, the Georgia House completely eviserated the Senate version of the anti-immigration legislation by substituting, in whole, for the entire SB 40, with what it was HB 87. Unfortunately, the committee chair and the bill's sponsor were not completely truthful with the public, or with their committee members about the actual content of the "new" SB 40, better known now at HB 87 "Heavy." Sections 1 through 9 of HB 87 and HB 87 Heavy are identical. Section 11 through 18, and Sections 20 through 22 also are identical. BUT, there are two significant and otherwise unnoticed changes in Section 10, and in Section 19.

First, in Section 10, the House has added an entire new section of the Georgia Code, to be known as 16-11-203. You will find this language in the last paragraph of Section 10:

The testimony of a witness with knowledge of any officer, employee, or agent of the federal government having confirmed that a person is an illegal alien shall be admissible to prove that the federal government has verified such person to be present in the United States in violation of federal immigration law. Verification that a person is present in the United States in violation of federal immigration law may also be established by any document authorized by law to be recorded or filed and in fact recorded or filed in a public office where items of this nature are kept.

What does this mean? For those lawyers out there the meaning is clear. Hearsay evidence can now be used to put people in state prison for fifteen years! For potential criminal defendants, you no longer have the right to face your accuser! No right to prove to the person who said you were in violation of federal immigration law that they are wrong. And, we all know about how wrong the federal databases can be, about how complicated immigration law is, and how difficult it is to ascertain whether someone is "illegal" in the United States. Obviously, the Georgia State Bar should get immediately involved, as should the criminal defense bar, to stop what is a wholesale sellout of the criminal justice system.

To give you an example as to how broad this language could be: E-Verify is a government database. E-Verify determines employment eligibity, but since it ties into the USCIS database, it is arguably a database that can be relied on to verify status. An employer who enrolls in E-Verify, has an agreement with DHS, and is thus an "agent" of ICE (read the MOU). Can the Georgia court rely on the testimony of an E-Verify employer about a person's non-eligiblity for work to convict someone of transporting, harboring, or inducing an alien? Clearly, that is what the House is hoping for if this language remains in the bill. Or did they have other motives? We do not know, becuase Chairman Golick and Rep. Ramsey did not allow any questioning or review of the bill or public testimony on it before it was passed summarily out of the House Judiciary Committee!

Section 19 of HB 87 Heavy is also different from HB 87. In the addition of Section 50-36-2 to the Georgia Code, subsection (e) is amended to add a new sub-subsection (8) and push the prior sub-subection (8) down to sub-subsection (9). The new sub-section (8) reads, refering to who this code section does NOT apply to:

Paragraph (2) of subsection (a) of Code Section 40-5-21 or paragraph (2) of subsection (a) of Code Section 40-5-21.1;

What the heck does that mean? The first part refers to this language within the statute governing who are exempt from carrying a Georgia driver's licenses:

(2) A nonresident who is at least 16 years of age and who has in his or her immediate possession a valid license issued to him or her in his or her home state or country; provided, however, that any restrictions which would apply to a Georgia driveŕs license as a matter of law would apply to the privilege afforded to the out-of-state license;

The second reference is to this language allowing FOR a grant of a driver's license to specific people who present evidence of their specific immigration status:

2) A pending or approved application for asylum in the United States;

Now, that is quite interesting. People who have a pending or approved asylum application, or who have a foreign license are now NOT subject to the provisions of Secure and Verifiable Identity Document Act? I guess that everyone who is undocumented in Georgia should not apply for asylum? Or, if I am undocumented person from Zimbabwe, and I manage to get a Zimbabwean Driver's License, I do not have to produce any other id? Or if I move to Utah, get a Utah Driver's Privilege Card, and then "visit" Georgia, I am also not subject to this Act? Really? And, how are the police to know where the person actually lives? Why would Representatives Ramsey and Golick make these changes? Under pressure from the "KIA Go Home" folks? Again, no one knows, since there was no public hearing, and they both said there were no changes to the bill from HB 87 to HB 87 Heavy. So, they either lied about the changes, or someone snuck them in without them knowing about them. Curious minds would love to know who!

Nonetheless, my other comments about the bill remain the same. Parts of it are blatantly unconstitutional, others are legal but bad public policy. In a blog I hope to have up tomorrow, I will go through the Constitutional arguments in detail, but suffice it to say, that if HB 87 becomes law, it will see the inside of a courtroom before it sees the light of day.

THE GEORGIA SENATE TAKES A SMALL STEP BACK FROM THE BRINK (NOT REALLY)

On Wednesday, at a hearing of the Senate Judiciary Committee which FAILED TO PROVIDE NOTICE OF THE CONSIDERATION OF HB 87, the Judiciary Committee voted 4 to 4 to not pass HB 87 out of committee. But wait! To the rescue (for the anti-immigration forces), rode in State Senator Jeff Mullis, who is NOT a member of the Judiciary COmmittee, and who is not even an Ex-Officio member of the Judiciary Committee, and cast a 5th and deciding vote FOR passing HB 87 out of committee for consideration by the full Senate. Wow! Is that legal ? (Probably not, but legality appears to be the least of the problems here).

The Senate Judiciary Committee, apparently, not taking too kindly to being dissed House Judiciary Committee, in turn also submitted a substitute bill for HB 87. Let's call this one HB 87 "Light." HB 87 Light takes it basic sections from SB 40. HB 87 Light has a significant number of changes to the House passed version of HB 87, but not enough to make it a bill any legitimate politician should be proud to be a part of.

Section 2 of the HB 87 Light is taken from Section 1 of the Senate passed SB 40 (by adding a new Section 1 with the misleading title of the "Illegal Immigration Reform and Enforcement Act of 2011." Is someone reforming illegal immigration?). There are no effective changes in Section 2 of HB 87 Light from SB 40.

Section 3 HB 87 Light is likewise identical to Section 2 of SB 40.

The real changes occur in Section 4. Section 4 is actually the language found in Section 7 of HB 87 Heavy, creating the NEW crime of Aggravated Identity Fraud (College kids making up an ID to get a job at a bar). (That is what it is for, no?). Similarly, Section 5 of HB 87 Light is identical to Section 8 of HB 87 Heavy, which creates a 15 year state criminal sentence and a $250,000 fine for anyone using a fake id to get employment. Unfortunately, I did not find the budget appropropiation that appears to be needed to accompany this bill, which is necessary to build more prisons to hold all the people that will be convicted under it. Finally, Section 9 of HB 87 Light is identical to SEction 9 of HB 87 Heavy, and creates exempetions to the crime created in Section 4.

Section 7 of HB 87 Light is virtually identical to Section 10 of HB 87 Heavy, and is the Section which creates the crimes of harboring, transporting and inducing of undocumented immigrants in Georgia. Apparently, no one bothered to tell the Senate that the House Judiciary Committee had added that new section 16-11-203 to their version of the bill, and thus, the sections are not identical. Perhaps, the Senate just felt it was not necessary to eviserate 200 years of jurisprudence and allow hearsay evidence to convict people and send them to prison for 15 years?

Actually, we do not know what the Senate Judiciary Committee thought about this bill, because they had NO debate on it, no consideration of these changes, no public testimony about the bill, and basically railroaded it through to the vote in about five minutes. Remind anyone of Wisconsin?

Okay, back to the Bill. Section 8, 9, 10, and 11 of HB 87 Light are identical to Section 11, 12, 13, and 14 of HB 87 Heavy. Of course, section 8 of HB 87 Light is Section 11 of HB 87 Heavy, and is the section that forces local police to abandon its policy of community policy and having the public trust police officers, by making "peace" officers (a more broad term than the police), run immigration background checks on persons he or she stops to investigate for crimes (including traffic offenses, such as having to darkly tinted windows). The counter argument from the anti-immigration people is that this is not unconstitutional because they have prohibited profiling. As my kids would say: "whatever." More to follow on that in my next blog.

These Sections also still deal with the fiction that counties are not cooporating with ICE enough, and they must be told to do so again (even though Secrure Communities will be fully online in Georgia within 18 months).

A small substantive changes to HB 87 Heavy occurs in Section 12 of HB 87 Light. In section 12 of HB 87 Light, which takes its structure from Section 17 of HB 87 Heavy, the Georgia Senate has decided to adopt in full the language from HB 87 Heavy that requires that before a business of more than 4 employees obtains a business licnese, they must prove that they have enrolled in E-Verify. The whole debate supporting agriculture, apparently was ignored now by the Senate, which apparently no longer cares that it will effectively destroy large parts of Georgia's largest business. One, difference in Section 12, is key, however. The Senate version does NOT have subsection (d) which requires government entities to send a report to the Department of Audits each year confirming they are complying with the new requirements. Other sections within HB 87 Light are simply re-lettered and reordered, but are not effectively changed in any way.

Section 13 of HB 87 Light is identical to Section 15 of HB 87 Heavy, and still requires that individuals detained by the local law enforcement check the immigration status of detainees. This is already being done in most of Georgia. Section 14 of HB 87 Light is identical to HB 87 Heavy.

Section 15 of HB 87 LIght 15 merely adds the term "agency head" to a preexisting list of public officials and businesses that can be fined for violations of Georgia's Code of Ethics. I could not find a similar section in HB 87 Heavy.

Section 16 of HB 87 Light is adopted from Section 2 of HB 87 Heavy, but makes some substantial changes. As you may recall HB 87 Heavy, under pressure from D.A. King, has created a private right of action against local governments, to allow him to sue to enforce the requirements that local governments enroll in E-Verify, use the SAVE System for benefits, and to not create a Sanctuary Policy, even though all of these things are already being done by the local governments, and no place in Georgia has a sanctuary policy. Section 16 eliminates that private right of action, and simply makes the Attorney General responsible for enforcing complaints of non-compliance brought by citizens. Frankly, this is a much more sensible approach to this non-issue.

Section 17 of HB 87 Light has no related section in HB 87 Heavy. This section disallows deductions for wages or labor services for state income tax purposes unless the individual is an unauthorized employee. It has some HUGE exceptions.

1. It does not apply to an employee hired before January 1, 2012.
2. It does not apply to persons who are not directly compensated (contractors); and
3. It does not aply to folks who have a Georgia Driver's License.

Frankly, it seems like it does not apply at all!! While some would say that this is the carrot approach to urging businesses to use E-Verify, all it really does is create situations where "independent contractors" are used, rather than employees. This, of course, creates other issues, but is, nonetheless a loophole large enough to drive a semi-tractor trailer through.

Section 18 of HB 87 Light also has no related section in HB 87 Heavy. This section merely creates the definition of "Agency Head," which apparently never existed previously, and which is a BROAD defintiion designed to capture as many public officials and employees within its grasp as possible, in the context of accepting "affdivaits of residence" for benefits in Georgia.

Section 19 of HB 87 Light is also without a counterpart in HB 87 Heavy. It merely changes some wording of an existing statute related to the affidavit of lawful presence currently required for receiving public benefits in Georgia.

Along the same vein Section 20 of HB 87 Light (with no HB 87 Heavy counterpart), creates a new crime/sanction category for "Agency Heads" who fail to abide by the requirements of accepting this Affidavit of Residence. I have heard of no evidence to suggest that this is an issue anywhere in Georgia, but who said the legislature actually need to facts to supports it actions!

Section 21 of HB 87 Light is almost identical to Section 19 of HB 87 Heavy, and creates the "Secure and Verifable Identity Document Act." Again, much like the changes that the House Judiciary Committee made in Section 10 of HB 87 Heavy that were not communicated to the Senate, no one told the Senate that the House had added a new provision in this Section, excempting asylum applicants, asylees, and folks with foreign and other state's driver's licenses from the effects of this bill.

Section 22, 23, and 24 in HB 87 Light are identical to HB 87 Heavy, in that they contain a severability clause and effective dates. Good thing, becuase that severability clause will come in handy when parts of this bill are found unconstitutional!

The bottom line on the actions by the Senate in creating HB 87 Light--

It is kinder to local governments;
It is not any kinder to businesses;
It does not mean that Georgia business will compy with E-Verify;
It still is designed to scare immigrants of all kinds out of Georgia;
And,
It still says that Georgia is the Arizona of the South.

Let's tell the Senate that these cosmetic differences CANNOT change the simple fact that this bill is a failure. It will not accomplish what they want it to accomplish, but what it will do is drive jobs out of Georgia, create a climate of fear in ALL immigrant communities, regardless of status, and will give Georgia a national black eye that will linger for a long time in the eyes of America. Georgia should follow the lead of Colorado, Mississippi, Kentucky, Kansas, and Nebraska and stop this legislation before it is too late. True reform lies only in Washington, D.C., and these legislators should better spend their time convincing our Congressman to act, rather than passing illegal and bad public policy.