ARIZONA STATE SENATE
Forty-seventh Legislature, Second Regular Session
VETOED
FINAL AMENDED
FACT SHEET FOR S.B. 1157
trespassing by illegal aliens
Purpose
Establishes the crime of trespassing by illegal aliens. Permits a peace officer to question a person about his or her immigration status in certain situations and provides the public employee and public entity qualified immunity for questioning immigration status.
Background
Arizona law punishes the act of human smuggling, but it is silent on penalties against persons who have illegally entered the United States and enter or remain in Arizona. Federal law provides that any alien who: 1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers; 2) eludes examination or inspection by immigration officers; 3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact is guilty of improper entry by an alien. For the first commission of the offense, the person is fined, imprisoned up to six months, or both, and, for a subsequent offense, is fined, imprisoned up to two years, or both (8 U.S.C. § 1325).
The Office of Detention and Removal (DRO) is a division of Immigration and Customs Enforcement (ICE) responsible for removing persons who have illegally entered the country. DRO transports these persons, manages them while in custody and waiting for their cases to be processed and removes them from the United States when ordered.
ICE operates eight secure detention facilities called Service Processing Centers (SPCs), one of which is located in Florence, Arizona. Additionally, ICE has seven contract detention facilities, uses state and local jails on a reimbursable detention day basis and has joint federal facilities with the Bureau of Prisons in Oakdale, Louisiana and Eloy, Arizona.
There may be a fiscal impact associated with criminal prosecution and detention of persons who are accused and convicted of trespassing by illegal aliens. According to the Department of Justice’s Bureau of Justice Statistics, in FY 2002-2003, there were 2,555 defendants in cases filed in federal court for violations of 8 U.S.C. § 1325.
Provisions
1. Prohibits, as “trespassing by illegal aliens,” a person who is not a citizen of the United States and who has improperly entered the United States, from entering into or being on any public or private land in Arizona.
2. Requires the arresting authority to fingerprint a person arrested for trespassing by illegal aliens.
3. Permits the arresting authority, on a person’s first offense for trespassing by illegal aliens, to transfer the person to a federal agency with jurisdiction over the person or refer the person for prosecution.
4. Prescribes the following penalties for trespassing by illegal aliens:
a) a class 1 misdemeanor for a first offense.
b) a class 6 felony for a second or subsequent offense.
c) a class 2 felony for any offense if the defendant also is in possession of a dangerous drug, a precursor chemical used in manufacturing methamphetamine, a deadly weapon, dangerous instrument or property used for the purpose of committing an act of terrorism.
5. Intends that a person, who has once been transferred to the federal agency with jurisdiction for a first offense of trespassing by illegal aliens, is referred for prosecution for a second or subsequent offense.
6. Permits a peace officer to question a person about his or her immigration status if the peace officer has lawfully detained a person based on the reasonable suspicion that the person has committed, is committing or is about to commit a crime.
7. Prevents the state and any political subdivision of the state from prohibiting a peace officer from questioning a person about his or her immigration status.
8. Exempts a public entity and public employee from liability for a peace officer questioning a person about his or her immigration status pursuant to state law, unless the public employee was not acting within the scope of his or her employment, intended to cause injury or was grossly negligent.
9. Makes technical and conforming changes.
10. Becomes effective on the general effective date.
Amendments Adopted by Rules Committee
· Removes the arresting authorities’ ability to deport a person for trespassing by illegal aliens.
Amendments Adopted by House of Representatives
1. Adds the qualified immunity for public employees and entities.
2. Permits a peace officer to question a person about his or her immigration status in specific situations.
3. Makes conforming changes.
Amendments Adopted by Conference Committee
1. Reduces the criminal penalties for the first and second conviction of trespassing by illegal aliens.
2. Makes a technical change.
Governor’s Veto Message
The Governor indicates in her veto message that S.B. 1157 was opposed by almost every major law enforcement group and many mayors. She indicates that the bill will impose an unfunded burden on law enforcement. The Governor also indicates that although she agrees with several components of the bill, she does not agree that all persons here in violation of federal law should be deemed criminal trespassers under state law. Finally, the Governor emphasizes her desire that Arizona’s and the nation’s border security efforts need to focus on providing financial resources and border security equipment to law enforcement agencies along the border, imposing effective employer sanctions and getting Congress to pass a no-amnesty guest worker program.
Senate Action House Action
JUD 1/30/06 DP 5-2-1-0 FMPR 3/6/06 DPA 3-2-1-0
RULES 2/6/06 PFCA 3rd Read 3/30/06 32-26-2-0
3rd Read 2/16/06 17-11-2-0 Final Read 4/12/06 33-27-0-0
Final Read 4/12/06 17-12-1-0
Vetoed by the Governor 4/17/06
Prepared by Senate Research
April 21, 2006
JE/jas