Rule of law
Penalties for Employing Undocumented Workers
274A UNLAWFUL EMPLOYMENT OF ALIENS SEC. 274A. [8 U.S.C. 1324a]
(4) CEASE AND DESIST ORDER WITH CIVIL MONEY PENALTY FOR HIRING, RECRUITING, AND REFERRAL VIOLATIONS.-With respect to a violation of subsection (a)(1)(A) or (a)(2), the order under this subsection-
(A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of-
(i) not less than $250 and not more than $2,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred,
(ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or
(iii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph; and �
Note: ‘Aid and Abet’ is to actively, knowingly, or intentionally assist another person in the commission or attempted commission of a crime.(24)
Note: A Felony Occurs when the specified crime carries a penalty of more than one year in prison.(25) For ALL the crimes listed above the maximum penalties range from five to twenty years for EACH violation. Where sentences of more than five years indicate additional aggravating circumstances. Note: To hire a just one illegal alien involves a penalty of up to six months in jail, a civil offense.
Federal Immigration and Nationality Act
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)“Any person who . . . encourages or induces an alien to . . . reside . .. . knowing or in reckless disregard of the fact that such . . . residence is .. . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . imprisoned not more than 5 years, or both.”Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:
* assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
* encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or
* knowingly assists illegal aliens due to personal convictions.
Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.
Recruitment and Employment of Illegal Aliens
It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S.. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days’ advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. Day laborers or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verfication of authorization to work, employer also means an independent contractor, or a contractor other than the person using the alien labor. The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.
An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer’s work force. Knowledge cannot be inferred solely on the basis of an individual’s accent or foreign appearance.
Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.
IT IS ILLEGAL FOR NONPROFIT OR RELIGIOUS ORGANIZATIONS to knowingly assist an employer to violate employment sanctions, REGARDLESS OF CLAIMS THAT THEIR CONVICTIONS REQUIRE THEM TO ASSIST ALIENS. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.
Encouraging and Harboring Illegal Aliens
It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any alien who is in the United States in violation of law. HARBORING MEANS ANY CONDUCT THAT TENDS TO SUBSTANTIALLY FACILITATE AN ALIEN TO REMAIN IN THE U..S. ILLEGALLY. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.
An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien’s illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien’s entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that “encouraging” includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.
The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years’ imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years’ imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years’ imprisonment.
A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.
State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens.. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer’s consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.
RICO — Citizen Recourse
Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, AND CAN INCLUDE NONPROFIT ASSOCIATIONS.
Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In additon to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.
1. THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT, 8 U.S.C. 1623, WHICH STATES:
(a) In general
Notwithstanding any other provisions of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less amount, duration, and scope) without regard to whether the citizen or national is such a resident. [emphasis mine]
The intent of Congress in enacting this provision is perfectly clear and unambiguous, as the House Conference Report stated, “This section provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.” This is also the exact portion of federal law which makes giving any illegal alien any “post-secondary education benefit” (HB-2263) ILLEGAL.
Note that this does not allow for exceptions for people who have lived in a state for 4 years or graduated from a state’s high schools. It may not be those peoples’ fault that they are in this country illegally, but it’s not the taxpayers’ faults either. Where’s the compassion for Arizona taxpayers forking over $6,000 each student to subsidize in-state tuition for these people who are prohibited from receiving it by federal laws?
Local Law Enforcement�s Inherent Authority of Immigration Law:
Congress has firmly established that there is a significant public interest in the effective enforcement of immigration law. Congress could have chosen to limit local enforcement pursuant to its plenary power over immigration, but it has not done so. In the absence of a limitation on local enforcement powers, the states are bound by the Supremacy Clause of the United �States Constitution to enforce violations of the federal immigration laws. �The statutory law of the United States is part of the law of each state just as if it were written into state statutory law.�
Often a misunderstanding of the relationship between federal criminal and immigration law causes one to believe being present in the U.S. in violation of immigration law is civil and �not a crime� and is clearly wrong. The enforcement role given to local government by the Constitution and the Congress is clear. Unsanctioned entry into the United States is a crime.
State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as state law does not restrict such general power.
The U.S. has a �compelling interest� in the criminal prosecution of immigration law violators, which is a part of a comprehensive, essential sovereign policy of uniform immigration law enforcement.
In Sections 1324 the language that referred to officers �of the United States� when talking about authority to arrest was stricken from section 1324 by amendment. In People v. Baraja, a California court concluded, �that change can only mean that the scope of the arrest power under section 1324 was enlarged; in no way can it mean that the scope of arrest under the other two sections was restricted. Such an acute non sequitur would attribute to the Congress both serious inconsistency and profound lack of logic.�
The arrest, detention, or transportation of aliens by local police enforcing criminal provisions of the INA is not a regulatory �determination� of the conditions of alien entrance and residency, but merely enforcement of the previously determined conditions. States can prosecute illegal aliens under state laws without running afoul of the INA. State and local laws do not attempt to regulate who may come to and stay in the U.S. , and thus do not impinge upon the federal government�s exclusive power to regulate immigration, even if they affect immigrants.
Other important amendments to federal law enacted in 1996 were intended by Congress to encourage state and local agencies to participate in the process of enforcing civil as well as criminal federal immigration laws by providing incentives such as reduced liability and specialized training.
In 1999 a decision in the Tenth Circuit Court of Appeals upheld the independent authority of local police departments to enforce federal immigration law, as long as state law prescribing police power of arrest authorized such an arrest. The U.S. Dept. of Justice endorsed this doctrine in April 2002. Under Attorney General Ashcroft, the U.S. Dept. of Justice took the position that state and local police have inherent authority to enforce civil immigration laws.
Assistant Attorney General Kobach explained that the inherent arrest authority of states arises from their pre-constitutional status as sovereign entities. The powers retained by the states at the time of ratification proceeded �not from the people of the United States, but from the people of the several states,� and remain unchanged, except as they have been �abridged� by the Constitution. The authority of a state to arrest for violations of federal law is thus not delegated; but �inheres in the ability of one sovereign to accommodate the interests of another sovereign.� This federalism-based analysis has a strong judicial pedigree.
The courts also ruled (Miller v. U.S., 357 U.S. 301, 305(1958) that a warrant less arrest �of an arrest for violation of federal law by state peace officers, �the lawfulness of the arrest without warrant is to be determined by reference to state law.�
Sanctuary policies are illegal. Local, state, or federal government agencies that sanction or retaliate against employees or officials who report immigration law violations to ICE or the Border Patrol can be sued by the whistleblower under 8 U.S.C. 1373 or 8 U.S.C. 1644 for damages and costs.
Citizens have a constitutional right to expect the protection of federal laws which prohibit unauthorized activities by non-citizens are denied equal protection when a police department or magistrate acts in a manner that encourages or assists persons selected on the basis of nationality or alienage to engage in such unlawful activities.
Aggrieved residents may sue in state or federal court to block unlawful municipal passive resistance policies (so called Sanctuary Policies), and may sue officials and employees in their official or private capacities for violations of their rights. Local government officials do not possess Eleventh Amendment immunity or qualified immunity when sued in their official for prospective injunctive or declaratory relief to end statutory and constitutional violations.
�Harboring� includes any conduct that tends to substantially help an alien to remain in the United States unlawfully. Criminal liability for harboring or sheltering could arise from acceptance of a Mexican matricula consular � which, presented without proper immigration documents, is prima facie evidence of illegal alien status � by a local government agency that , for example, provide housing or utility assistance, made referrals to a public or private job assistance program or detained matricula presenters for violation of city ordinances and release them without verifying their immigration status with the U.S. Immigration and Customs Enforcement.
No policy or humanitarian argument has been identified by the courts that would negate the criminal mens rea of reckless disregard for the fact that aliens are present in the United States in violation of law. Neither sanctuary nor humanitarian concern is a valid defense to either civil or criminal violations of the Immigration and Nationality Act. It is illegal for non-profit, religious, or civic organizations to knowingly assist in the commission of an alien smuggling felony, regardless of claims that their member� convictions may require them to assist aliens. The First Amendment does not protect actions that aid illegal aliens to remain in the United States.
Illegal aliens are not a suspect class entitled to Fourteenth Amendment based strict scrutiny of any discriminatory classification based on that status, nor are they defined by an immutable characteristic, since their status is the product of conscious unlawful action.
Every alien who has seen issued a registration document is a required to carry the document on his or her person. Federal regulations specify the immigration document that are evidence of alien registration. The U.S. Supreme Court has held that the unregistered presence of an alien in the U.S. is in itself a crime. Failure to register is a continuing violation for which there is no statute of limitations. Other criminal misdemeanors are failure to have a registration card in personal possession ($100 fine and /or 30 days imprisonment), and failure to report a change of address ($200 fine and /or 30 days).
A law enforcement officer has probable cause to detain an individual who admits he or she is an alien (legal or illegal) but is not in possession of registration documents. This is a crime that a warrant less arrest can be made in most jurisdictions.
Immigration document fraud is a felony enforceable by local police officers under 18 U.S.C. 1028. Criminalizes eight types of knowing conduct that relate to false identification documents.
The Bail Reform Act of 1984 created a powerful detention provision that authorizes a state of local police officer to arrest any alien other than a legal permanent resident for a federal �offense,� and to request a local magistrate to temporarily detain the alien for up to ten days without bail while awaiting transfer into federal custody, so long as the alien is found to be a �flight risk� or danger to any other person or the community.�
The authority to make arrest for federal offenses under 18 U.S.C. 3041 extends to state and local law enforcement officers. (U.S. v Bowdach, 561 F.2d 1160, 1168 (5th Cir. 1977) This authority applies to states that have authority to arrest for federal misdemeanors.
An illegal alien is an inherent flight risk.