Tuesday, April 17, 2007

TN Immigrant Legislation Update

From the Tennessee Immigrant Rights and Refugee Coalition . . .

TN Legislative Update
Posted by: "Stephen Fotopulos" stephen@tnimmigrant.org
Mon Apr 16, 2007 8:29 am (PST)
Dear Supporters,

The TN Legislature will be finishing up committee and subcommittee meetings in the coming weeks, and most of the 40+ anti-immigrant bills are now finding their way to committee calendars. This is another busy week at Legislative Plaza.

(Please follow this link for a short list of bills on the move: http://www.tnimmigrant.org/TN_Coalition/Legislation/Bills2007short.html)

The bill to eliminate the driving certificate program (SB 1968 by Kyle, HB 1827 by Turner M, ) is scheduled for a full vote in the House today, although the sponsor has indicated that he will defer the bill for several weeks (so that it can be considered at the same time as the TN Highway Patrol bill below). There is a proposed but unlikely amendment that would continue the certificate program, but only for certain immigrants who are petitioning to adjust their status (Form I-797). Immigrant community members will be participating in a small vigil today at 3:30 at Legislative Plaza, to demonstrate opposition to the effective criminalization of driving to work. If you would like to participate in this vigil, please contact Leticia Alvarez at 615-293-3717.

The bill that would allow the TN Highway Patrol to enforce federal immigration laws (SB 1604 by Norris, HB 491 by Gresham ) has passed the House Transportation committee, and will go to the House Budget subcommittee this week. It has been amended to be permissive, and restates authority to enter into an agreement with ICE that the Governor likely already has. There is a pending amendment to request that the TN Highway Patrol collect certain information from every vehicle stop, so that any increases in racial or ethnic profiling can be monitored. Immigrant community members met with the TN Commissioner of Safety and the head of the TN Highway Patrol on Thursday to discuss their concerns with the proposed program.

We are also closely monitoring the following four bills, which would be particularly harmful to Tennessee's immigrant community and detrimental to the interest of all Tennesseans. If you would like to visit the legislature to oppose these bills (or possibly testify against them in a committee), please let me know.

SB 576 by Burks, HB 1216 by Fincher -This bill amounts to a broad transfer of immigration enforcement responsibilities from the federal government to the state of Tennessee, local "peace officers," and private businesses. Scheduled for House Judiciary on April 18th.

* Mandates that the Governor enter into a Memorandum of Understanding (MOU) with the US Immigration and Customs enforcement agency (ICE) and designate state "peace officers" as immigration enforcement agents.
* Mandates that state and local jailors check immigration status of certain arrestees, with no provisions for training.
* Requires that public employers and contractors use the Basic Pilot program to verify work authorization of employees. According to the Social Security Administration, the Basic Pilot program includes 17.8 million records with substantive data errors . Current immigration reform proposals at the federal level (such as the STRIVE Act of 2007) would eliminate the Basic Pilot program altogether in favor of a workable Employee Eligibility Verification System .
* Imposes tax penalties on any employer or small business that fails to use the Basic Pilot program. Although the House sponsor has suggested this bill would only affect state employers, it provides significant tax penalties for any small business that does not have the training or capacity to implement the Basic Pilot program.
* Requires state and local employees to check immigration status for government services. Undocumented immigrants are barred from most entitlement programs, except for those mandated by federal law. Administrative obstacles to government services promise to impact all Tennesseans with higher costs, decreased efficiency, and the accidental denial of services to qualified applicants. "Colorado's new law banning state spending on illegal immigrants has cost more than $2 million to enforce-and has saved the state nothing" (State Budget Report in the Denver Post ). The projected cost of this TN bill is $1,870,900 a year.

SB 2318 by Ketron, HB 1983 by DuBois -Empowers "local law enforcement agencies" to enforce current TN law that makes it "unlawful for any person...to knowingly employ...any individual who has illegally entered the United States." The fiscal impact of this bill is minimal, because current TN law regarding employment of undocumented immigrants is preempted by federal statute, and therefore cannot be enforced. Transferring this enforcement responsibility to local police doesn't make the law any less in violation of federal statute. Scheduled for Senate vote on April 16th; scheduled for House Consumer & Employees Affairs on April 17th.

* According to the fiscal note , "The enforcement of penalties imposed by this bill is pre-empted by federal law, 8 U.S.C. § 1324a(h)(2), which provides: 'The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.' The penalties therefore cannot be enforced and there will be no incarceration costs associated with enactment."
* It's interesting to note-as perhaps an indication of any state's competence to regulate federal immigration policy-that current TN law prohibits hiring an immigrant who illegally entered the country, but later adjusted his/her status and is now authorized to work. The law allows hiring an undocumented immigrant who entered the country legally, but overstayed a visa and is not authorized to work.
* An Attorney General's opinion should address the questions, "Does current TN law (50-1-103, Employment of illegal aliens) contradict the specific preemption clause in 8 U.S.C. § 1324a(h)(2) ? Would enforcement of this statute by local law enforcement agencies violate federal law?"

SB 193 by Burchett, HB 600 by Turner M -Creates new crime of driving with an immigrant into the state of Tennessee, if driver "should have known" the immigrant "illegally entered or remained in the United States." According to the sponsor, this bill is intended to address the smuggling and exploitation of undocumented immigrants by unscrupulous transportation companies. Unfortunately, the bill does something else altogether. It creates a legal responsibility for any individual driving across state lines to know the immigration status of everyone in his/her car, and makes that individual a criminal if someone in the car is undocumented. This bill, like any bill that burdens untrained individuals with enforcement of federal immigration law, will encourage discrimination against people who look or sound foreign-born. Passed House Judiciary on April 11th and referred to House Calendar and Rules.

* The regional office of the US Citizenship and Immigration Service is located in Memphis, TN, serving immigrants and their families from Mississippi and Arkansas. Is it now a crime to drive your immigrant spouse to an appointment at the USCIS office, if you know their tourist visa has expired and you're attempting to adjust their status?
* Is the foreman of a highway work crew now responsible for the immigration status of everyone in his truck?
* Is a cab driver near Bristol, TN, required to check the immigration papers of a foreign-looking customer, if they happen to start the trip on the Virginia side of town? How would that cab driver interpret an asylum-seeker's letter from an immigration judge, explaining that her asylum case is being reviewed?
* How will this new law be enforced? Are police officers and sheriff's deputies now allowed to pull over cars with out-of-state tags-or car with foreign-looking occupants-to interrogate people about their immigration status? Knowing that the Immigration and Customs Enforcement agency requires 5 weeks of training before officers can enforce federal immigration law, what type of training will local police officers receive to enforce this law?
* If it serves the interests of the state to target the smuggling of undocumented workers, than it should pass a bill that deals with smuggling. This bill creates a blanket legal burden for tens of thousands of people who drive into TN every day.

SB 252 by Haynes, HB 66 by Turner -Creates a state crime for working in Tennessee having "illegally entered the United States," with all compensation to be confiscated. Even if this bill were not preempted by federal law, it would create a perverse incentive for employers to hire undocumented workers, who can now be more easily exploited under slavery conditions. Deferred in Consumer & Employees Affairs committee to a special "immigration" calendar, possibly to occur next week.

* According to the National Employment Law Project, SB252 is clearly out of step with federal law. "For many years, federal courts have held that to deprive undocumented workers of wages owed them for work performed under the federal minimum wage law, the Fair Labor Standards Act (FLSA), would encourage unscrupulous employers to seek them out, and would be inconsistent with the goals of restricting illegal immigration...It would also reward employers who violate both immigration and labor laws by hiring and then taking advantage of undocumented immigrant workers by giving them free labor. It would be out of step with state policy across the United States, as well as federal labor and immigration policies" (read NELP analysis of SB252 with case law) .
* The Kansas Supreme Court determined in March, 2007, that wages cannot be denied to a worker, regardless of immigration status. "To deny or dilute an action for wages earned but not paid on the grounds that such employment contracts are 'illegal,' would thus directly contravene the public policy of the state of Kansas," Justice Lawton Nuss wrote in the court's opinion. (Associated Press )
* According to the fiscal note , "The penalties imposed by this bill are pre-empted by federal law, 8 U.S.C. § 1324a(h)(2), which provides: 'The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.' The penalties therefore cannot be enforced and there will be no incarceration costs associated with enactment."

Stephen Fotopulos

Policy Director

Tennessee Immigrant & Refugee Rights Coalition




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