Bill Text: IN SB0213 | 2010 | Regular Session | Amended
Bill Title: Unauthorized aliens.
Spectrum: Moderate Partisan Bill (Republican 14-2)
Status: (Engrossed - Dead) 2010-02-09 - First reading: referred to Committee on Interstate and International Cooperation [SB0213 Detail]
Download: Indiana-2010-SB0213-Amended.html
Citations Affected: IC 5-2; IC 9-24; IC 11-10; IC 22-4; IC 22-5;
IC 34-28; IC 35-33; IC 35-44; IC 36-2.
Effective: July 1, 2010.
January 5, 2010, read first time and referred to Committee on Pensions and Labor.
January 21, 2010, reported favorably _ Do Pass; reassigned to Committee on
Appropriations.
January 28, 2010, amended, reported favorably _ Do Pass.
Digest Continued
through the E-Verify program. Prohibits a state agency or political
subdivision from entering into or renewing a public contract for
services with a contractor unless the contract requires the contractor to
verify employees through the E-Verify program. Provides that: (1) a
state agency or political subdivision may terminate a public contract for
services under certain conditions regarding the knowing employment
or retention of unauthorized aliens; and (2) if a public contract for
services is terminated, a contractor is liable for actual damages. Allows
a contractor of a public contract for services to terminate a contract
with a subcontractor if the subcontractor employs or contracts with
unauthorized aliens. Makes it, except in certain circumstances, a: (1)
Class C infraction for a person to knowingly or intentionally offer in
writing, accept, or record a consular identification for any public
purpose; or (2) Class C infraction for a person to knowingly or
intentionally offer in writing, accept, or record an individual taxpayer
identification number as a valid form of identification for any public or
private purpose. Increases penalties for certain crimes. Establishes
additional penalties for certain crimes. Makes making a false identity
statement a Class A misdemeanor. Makes it a: (1) Class A
misdemeanor to knowingly or intentionally transport or move; and (2)
Class A misdemeanor to knowingly or intentionally conceal, harbor, or
shield from detection; an alien, for purposes of commercial advantage
or private financial gain, knowing or in reckless disregard of the fact
that the alien has come to, entered, or remained in the United States in
violation of law.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
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A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Chapter 18. Citizenship and Immigration Status Information
Sec. 1. As used in this chapter, "governmental body" has the meaning set forth in IC 5-22-2-13.
Sec. 2. A governmental body may not enact an ordinance, a resolution, a rule, or a policy that prohibits or in any way restricts another governmental body, including a law enforcement officer (as defined in IC 5-2-1-2), a state or local official, or a state or local government employee, from taking the following actions with regard to information of the citizenship or immigration status, lawful or unlawful, of an individual:
(1) Communicating or cooperating with federal officials.
(2) Sending to or receiving information from the United States
Department of Homeland Security.
(3) Maintaining information.
(4) Exchanging information with another federal, state, or
local government entity.
Sec. 3. If a governmental body violates this chapter, a person
lawfully domiciled in Indiana may bring an action to compel the
governmental body to comply with this chapter.
commits a Class C misdemeanor. However, the offense is a Class A misdemeanor if the person has a prior unrelated conviction under this section.
(b) In addition to any other penalty imposed for a conviction under this section, the court shall recommend that the person be prohibited from receiving a valid driving license for a fixed period of at least ninety (90) days and not more than two (2) years.
(c) The court shall specify:
(1) the length of the fixed period of the prohibition; and
(2) the date the fixed period of the prohibition begins;
whenever the court makes a recommendation under subsection (b).
(d) The bureau shall, upon receiving a record of conviction of a person upon a charge of operating a motor vehicle while never having received a valid driving license, prohibit the person from receiving a driving license for a fixed period of at least ninety (90) days and not more than two (2) years. The bureau shall fix this period in accordance with the recommendation of the court that entered the conviction, as provided in subsection (c).
(1)
(2) the circumstances surrounding
commitment;
(3) his the offender's history of criminality; and
(4) the citizenship or immigration status of the offender by
making a reasonable effort to determine the offender's
citizenship or immigration status with the United States
Department of Homeland Security; and
(4) (5) any additional relevant matters.
(b) In making the evaluation prescribed in subsection (a), the
department may utilize any presentence report, any presentence
memorandum filed by the offender, any reports of any presentence
physical or mental examination, the record of the sentencing hearing,
or other information forwarded by the sentencing court or other agency,
if that information meets the department's minimum standards for
criminal offender evaluation.
(c) If an offender has undergone, within two (2) years before the
date of his the offender's commitment, a previous departmental
evaluation under this section, the department may rely on the previous
evaluation and the information used at that time. However, this
subsection does not deprive an offender of the right to a medical and
dental examination under IC 11-10-3.
(d) If the department is unable to verify the citizenship or
immigration status of a committed criminal offender, the
department shall notify the United States Department of Homeland
Security that the citizenship or immigration status of the offender
could not be verified. The department shall assist the United States
Department of Homeland Security with information leading to the
deportation of a committed criminal offender who is unlawfully
present in the United States.
(1)
(2) the circumstances surrounding
(3)
(4) the citizenship or immigration status of the offender with the United States Department of Homeland Security; and
(b) In making the evaluation prescribed in subsection (a), the department may utilize reports of any precommitment physical or mental examination or other information or records forwarded by the
committing court or other agency, if that information meets the
department's minimum standards for delinquent offender evaluation.
(c) If a committed offender has undergone, within one (1) year
before the date of his the offender's commitment, a previous
departmental evaluation under this section, the department may rely on
the previous evaluation and the information used at that time. However,
this subsection does not deprive an offender of the right to a medical
and dental examination under IC 11-10-3.
(d) If the department is unable to verify the citizenship or
immigration status of a committed offender, the department shall
notify the United States Department of Homeland Security that the
citizenship or immigration status of the committed offender could
not be verified. The department shall assist the United States
Department of Homeland Security with information leading to the
deportation of a committed offender who is unlawfully present in
the United States.
(b) For weeks of unemployment occurring subsequent to December 31, 1977, benefits may not be paid on the basis of services performed by an alien unless the alien is an individual who has been lawfully admitted for permanent residence at the time the services are performed, is lawfully present for purposes of performing the services, or otherwise is permanently residing in the United States under color of law at the time the services are performed (including an alien who is lawfully present in the United States as a result of the application of the provisions of Section 207, Section 208, or Section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1157 through 1158).
(1) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
(2) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to the individual are not payable because of
(3) Any modifications to the provisions of Section 3304(a)(14) of
the Federal Unemployment Tax Act, as provided by P.L.94-566,
which specify other conditions or other effective date than stated
in this section for the denial of benefits based on services
performed by aliens and which are required to be implemented
under state law as a condition for full tax credit against the tax
imposed by the Federal Unemployment Tax Act, shall be
considered applicable under this section.
(c) If an individual who applies for benefits is not a citizen or
national of the United States, the department shall verify the lawful
presence of the individual through the SAVE program to
determine the individual's eligibility for benefits. The department
shall implement this subsection in accordance with federal law.
Chapter 1.7. Public Contract for Services; Unauthorized Aliens
Sec. 1. As used in this chapter, "contractor" means a person that has or is attempting to enter into a public contract for services with a state agency or political subdivision.
Sec. 2. As used in this chapter, "E-Verify program" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (P.L. 104-208), Division C, Title IV, s. 403(a), as amended, operated by the United States Department of Homeland Security or a successor work authorization program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work authorization status of newly hired employees under the Immigration Reform and Control Act of 1986 (P.L. 99-603).
Sec. 3. As used in this chapter, "person" means an individual, a corporation, a limited liability company, a partnership, or another legal entity.
Sec. 4. As used in this chapter, "political subdivision" has the meaning set forth in IC 36-1-2-13.
Sec. 5. As used in this chapter, "public contract for services" means any type of agreement between a state agency or a political subdivision and a contractor for the procurement of services.
Sec. 6. As used in this chapter, "state agency" has the meaning set forth in IC 4-6-3-1.
Sec. 7. As used in this chapter, "subcontractor" means a person that:
(1) is a party to a contract with a contractor; and
(2) provides services for work the contractor is performing under a public contract for services.
Sec. 8. As used in this chapter, "unauthorized alien" has the meaning set forth in 8 U.S.C. 1324a(h)(3).
Sec. 9. A state agency or political subdivision shall use the E-Verify program to verify the work eligibility status of all employees of the state agency or political subdivision hired after June 30, 2010.
Sec. 10. A state agency or political subdivision may not enter into or renew a public contract for services with a contractor unless the public contract contains a provision requiring the contractor to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the E-Verify program.
Sec. 11. Before a state agency or political subdivision may enter into a public contract for services with a contractor, the contractor shall certify in a manner consistent with federal law that the contractor, at the time of the certification, does not employ or contract with an unauthorized alien.
Sec. 12. (a) A contractor or a subcontractor may not:
(1) knowingly employ or contract with an unauthorized alien; or
(2) retain an employee or contract with a person that the contractor or subcontractor subsequently learns is an unauthorized alien.
(b) If a contractor violates this section, the state agency or political subdivision shall require the contractor to remedy the violation not later than thirty (30) days after the date the state agency or political subdivision notifies the contractor of the violation.
(c) There is a rebuttable presumption that a contractor did not knowingly employ an unauthorized alien if the contractor verified the work eligibility status of the employee through the E-Verify program.
Sec. 13. (a) Except as provided in subsection (b), if the contractor fails to remedy the violation within the thirty (30) day period provided under section 12(b) of this chapter, the state agency or political subdivision shall terminate the public contract for services with the contractor for breach of the public contract for services.
(b) If a contractor employs or contracts with an unauthorized alien but the state agency or political subdivision (whichever the
contractor has a public contract for services with) determines that
terminating the public contract for services under subsection (a)
would be detrimental to the public interest or public property, the
state agency or political subdivision may allow the public contract
for services to remain in effect until the state agency or political
subdivision procures a new contractor.
(c) If a state agency or political subdivision terminates a public
contract for services under subsection (a), the contractor is liable
to the state agency or political subdivision for actual damages.
Sec. 14. A contractor may file an action with a circuit or
superior court having jurisdiction in the county to challenge:
(1) a notice of a violation to the contractor under section 12(b)
of this chapter not later than twenty (20) days after the
contractor receives the notice; or
(2) a termination of a public contract for services under
section 13(a) of this chapter not later than twenty (20) days
after the state agency or political subdivision terminates the
public contract for services with the contractor.
Sec. 15. If a contractor uses a subcontractor, the subcontractor
shall certify to the contractor in a manner consistent with federal
law that the subcontractor, at the time of certification, does not
employ or contract with an unauthorized alien.
Sec. 16. A contractor shall maintain on file a certification of a
subcontractor under section 15 of this chapter throughout the
duration of the term of a contract with the subcontractor.
Sec. 17. (a) If a contractor determines that a subcontractor is in
violation of this chapter, the contractor may terminate a contract
with the subcontractor for the violation.
(b) A contract terminated under subsection (a) for a violation of
this chapter by a subcontractor may not be considered a breach of
contract by the contractor or the subcontractor.
(c) A subcontractor may file an action with a circuit or superior
court having jurisdiction in the county to challenge a termination
of a contract under subsection (a) not later than twenty (20) days
after the contractor terminates the contract with the
subcontractor.
Chapter 7. Offenses Related to Identification Numbers and Documents
Sec. 1. As used in this chapter, "consular identification" means
an identification, other than a passport, issued by the government
of a foreign state for the purpose of providing consular services in
the United States to a national of the foreign state.
Sec. 2. As used in this chapter, "individual taxpayer
identification number" means a tax processing number issued by
the United States Internal Revenue Service for the purpose of
facilitating federal tax reporting by individuals who are not eligible
to obtain a federal Social Security number.
Sec. 3. (a) This section does not apply to a law enforcement
officer who is presented with a consular identification during the
investigation of a crime.
(b) Except as otherwise provided under federal law or to
document the foreign nationality of a cardholder, a person who
knowingly or intentionally offers in writing, accepts, or records a
consular identification for any public purpose commits a Class C
infraction. However, the person commits:
(1) a Class B infraction for a second offense; and
(2) a Class A infraction for a third or subsequent offense.
Sec. 4. Except as otherwise provided under law, a person who
knowingly or intentionally offers in writing, accepts, or records an
individual taxpayer identification number as a valid form of
identification for any public or private purpose, other than for
reporting, payment, or other processing of federal or state personal
taxation for which a Social Security number would otherwise be
required of a United States citizen, commits a Class C infraction.
However, the person commits:
(1) a Class B infraction for a second offense; and
(2) a Class A infraction for a third or subsequent offense.
(b) Bail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community. In setting and accepting an
amount of bail, the judicial officer shall take into account all facts
relevant to the risk of nonappearance, including:
(1) the length and character of the defendant's residence in the
community;
(2) the defendant's employment status and history and his the
defendant's ability to give bail;
(3) the defendant's family ties and relationships;
(4) the defendant's character, reputation, habits, and mental
condition;
(5) the defendant's criminal or juvenile record, insofar as it
demonstrates instability and a disdain for the court's authority to
bring him the defendant to trial;
(6) the defendant's previous record in not responding to court
appearances when required or with respect to flight to avoid
criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty
faced, insofar as these factors are relevant to the risk of
nonappearance;
(8) the source of funds or property to be used to post bail or to pay
a premium, insofar as it affects the risk of nonappearance; and
(9) that the defendant is a foreign national who has not been
lawfully admitted to the United States; and
(9) (10) any other factors, including any evidence of instability
and a disdain for authority, which might indicate that the
defendant might not recognize and adhere to the authority of the
court to bring him the defendant to trial.
(b) It is a defense to a prosecution under this section that both material statements concerning the person's identity are accurate or were accurate in the past.
(c) In a prosecution under subsection (a):
(1) the indictment or information need not specify which statement is actually false; and
(2) the falsity of a statement may be established sufficient for conviction by proof that the defendant made irreconcilably
contradictory statements concerning the person's identity.
Chapter 5. Offenses Relating to Illegal Aliens
Sec. 1. This chapter does not apply to the following:
(1) A church or religious organization.
(2) The provision of assistance for health care items and services that are necessary for the treatment of an emergency medical condition of an individual.
(3) A health care provider (as defined in IC 16-18-2-163(a)) that is providing health care services.
(4) An attorney or other person that is providing legal services.
(5) A person who:
(A) is a spouse of an alien or who stands in relation of parent or child to an alien; and
(B) would otherwise commit an offense under this chapter with respect to the alien.
Sec. 2. As used in this chapter, "alien" has the meaning set forth in 8 U.S.C. 1101(a).
Sec. 3. A person who knowingly or intentionally:
(1) transports; or
(2) moves;
an alien, for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of the law commits transporting an illegal alien, a Class A misdemeanor.
Sec. 4. A person who knowingly or intentionally:
(1) conceals;
(2) harbors; or
(3) shields from detection;
an alien in any place, including a building or means of transportation, for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law, commits harboring an illegal alien, a Class A misdemeanor.
Sec. 5. It is a defense to a prosecution under section 4(2) of this chapter that a landlord, before renting real property to a person, was provided with a driver's license from any state or other lawful
United States identification, including a Social Security card,
passport, or other unexpired document issued by the federal
government that evidences that the person is authorized to be in
the United States.
Sec. 6. A determination by the United States Department of
Homeland Security that an alien has come to, entered, or remained
in the United States in violation of law is evidence that the alien is
in the United States in violation of law.
(1) charged with a felony or with operating a vehicle while intoxicated; and
(2) confined, for any period, in a county jail.
(b) If the sheriff is unable to verify the citizenship or immigration status of a person described under subsection (a), the sheriff shall notify the United States Department of Homeland Security that the citizenship or immigration status of the person described in subsection (a) could not be verified. The sheriff shall assist the United States Department of Homeland Security with information leading to the deportation of a person described in subsection (a) who is unlawfully present in the United States.
(c) Upon request from the department of correction, the sheriff shall make available a copy of any information or documents the sheriff collects in attempting to determine the citizenship or immigration status of a person under this section to the department of correction.
