Skip to Content


HOUSE DOCKET, NO. 175         FILED ON: 1/8/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1336

 

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

William C. Galvin, (BY REQUEST)

_______________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
              Court assembled:

              The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to law enforcement and unlawful immigrants within the Commonwealth of Massachusetts.

_______________

PETITION OF:

 

Name:

District/Address:

Andrea Goldstein

 


HOUSE DOCKET, NO. 175        FILED ON: 1/8/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1336

By Mr. Galvin of Canton (by request), a petition (accompanied by bill, House, No. 1336) of Andrea Goldstein relative to law enforcement and unlawful immigrants within the Commonwealth.  The Judiciary. 

 

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3631 OF 2011-2012.]


The Commonwealth of Massachusetts
 

_______________

In the Year Two Thousand Thirteen

_______________

 

An Act relative to law enforcement and unlawful immigrants within the Commonwealth of Massachusetts.
 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1.  The General Laws are hereby amended by inserting after chapter 274 the following chapter:--

              CHAPTER 275

              UNLAWFUL IMMIGRATION

              Section 1.  (a) Notwithstanding any general or special law to the contrary and to the extent permitted by federal law, any natural person who applies for a federal public benefit that is administered by the commonwealth or a political subdivision of the commonwealth and that requires participants to be citizens of the United States, legal residents of the United States or otherwise lawfully present in the United States shall submit at least 1 of the following documents to the entity that administers the federal public benefit demonstrating lawful presence in the United States:

              (i) a driver’s license or other identification issued by the registry of motor vehicles.

              (ii) a birth certificate or delayed birth certificate issued in any state, territory or possession of the United States.

              (iii) a United States certificate of birth abroad.

              (iv) a United States passport.

              (v) a foreign passport with a United States visa.

              (vi) an I–94 Arrival/Departure Record from the federal Department of Homeland Security with a photograph.

              (vii) a United States citizenship and immigration services employment authorization document or refugee travel document.

              (viii) a United States certificate of naturalization.

              (ix) a United States certificate of citizenship.

              (x) a tribal certificate of Indian blood.

              (xi) a tribal or bureau of Indian affairs affidavit of birth.

              (b) For the purposes of administering Medicaid programs, documentation of citizenship and legal residence shall conform with the requirements of Title XIX of the federal Social Security Act.

              (c) To the extent permitted by federal law, an agency of the commonwealth or political subdivision of the commonwealth may allow tribal members, the elderly and persons with disabilities or incapacity of the mind or body to provide documentation as specified in section 6036 of the federal Deficit Reduction Act of 2005, P.L. 109–171, and related federal guidance in lieu of the documentation required by this section.

              (d) Any person who applies for federal public benefits shall sign a sworn affidavit stating that the documents presented pursuant to subsection (a) are true under penalty of perjury.

              (e) Failure to report discovered violations of federal immigration law by an employee of an agency of the commonwealth or a political subdivision of the commonwealth that administers any federal public benefit shall be punished by a fine of not more than $750, or by imprisonment in a jail or house of correction for not more than 4 months or both. If that employee's supervisor knew of the failure to report and failed to direct the employee to make the report, the supervisor shall be punished by a fine of not more than $750, or by imprisonment in a jail or house of correction for not more than 4 months or both.

              (f) This section shall be enforced without regard to race, color, religion, sex, age, disability or national origin.

              (g) Any person who is a resident of the commonwealth has standing in any district court to bring suit against any agent or agency of the commonwealth or its political subdivisions to remedy any violation of any provision of this section, including an action for mandamus. Courts shall give preference to actions brought under this section over other civil actions or proceedings pending in the court.

              (h) The court may award court costs and reasonable attorney fees to any person or any official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth that prevails by an adjudication on the merits in a proceeding brought pursuant to this section.

              (i) For the purposes of this section, “federal public benefit” has the same meaning prescribed in 8 U.S.C. section 1611.

              Section 2. (a) Notwithstanding any general or special law to the contrary and to the extent permitted by federal law, any agency of the commonwealth or a political subdivision of the commonwealth that administers any state or local public benefit shall require each natural person who applies for the state or local public benefit to submit at least 1 of the following documents to the entity that administers the state or local public benefit demonstrating lawful presence in the United States:

              (i) a driver’s license or other identification issued by the registry of motor vehicles.

              (ii) a birth certificate or delayed birth certificate issued in any state, territory or possession of the United States.

              (iii) a United States certificate of birth abroad.

              (iv) a United States passport.

              (v) a foreign passport with a United States visa.

              (vi) an I–94 Arrival/Departure Record from the federal Department of Homeland Security with a photograph.

              (vii) a United States citizenship and immigration services employment authorization document or refugee travel document.

              (viii) a United States certificate of naturalization.

              (ix) a United States certificate of citizenship.

              (x) a tribal certificate of Indian blood.

              (xi) a tribal or bureau of Indian affairs affidavit of birth.

              (b) For the purposes of administering Medicaid programs, documentation of citizenship and legal residence shall conform with the requirements of Title XIX of the federal Social Security Act.

              (c) To the extent permitted by federal law, an agency of the commonwealth or political subdivision of the commonwealth may allow tribal members, the elderly and persons with disabilities or incapacity of the mind or body to provide documentation as specified in section 6036 of the federal Deficit Reduction Act of 2005, P.L. 109–171, and related federal guidance in lieu of the documentation required by this section.

              (d) Any person who applies for state or local public benefits shall sign a sworn affidavit stating that the documents presented pursuant to subsection (a) are true under penalty of perjury.

              (e) Failure to report discovered violations of federal immigration law by an employee of an agency of the commonwealth or a political subdivision of the commonwealth that administers any state or local public benefit shall be punished by a fine of not more than $750, or by imprisonment in a jail or house of correction for not more than 4 months or both. If that employee's supervisor knew of the failure to report and failed to direct the employee to make the report, the supervisor shall be punished by a fine of not more than $750, or by imprisonment in a jail or house of correction for not more than 4 months or both.

              (f) This section shall be enforced without regard to race, color, religion, sex, age, disability or national origin.

              (g) Any person who is a resident of the commonwealth has standing in any district court to bring suit against any agent or agency of the commonwealth or its political subdivisions to remedy any violation of any provision of this section, including an action for mandamus. Courts shall give preference to actions brought under this section over other civil actions or proceedings pending in the court.

              (h)The court may award court costs and reasonable attorney fees to any person or any official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth that prevails by an adjudication on the merits in a proceeding brought pursuant to this section.

              (i) For the purposes of this section, “state or local public benefit” has the same meaning prescribed in 8 U.S.C. section 1621, except that it does not include commercial or professional licenses, benefits provided by the public retirement systems and plans of this state or services widely available to the general population as a whole.

              Section 3.  (a) No official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

              (b) For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of the commonwealth or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of the commonwealth in the enforcement of any other law or ordinance of a county, city or town or the commonwealth where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 U.S.C. section 1373(c). A law enforcement official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or the constitution of the commonwealth. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

              (i) a valid driver’s license or other identification issued by the registry of motor vehicles;

              (ii) a valid tribal enrollment card or other form of tribal identification;

              (iii) if the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

              (c) If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States immigration and customs enforcement or the United States customs and border protection shall be immediately notified.

              (d) Notwithstanding any general or special law to the contrary, a law enforcement agency may securely transport an alien who the agency has received verification is unlawfully present in the United States and who is in the agency's custody to a federal facility in the commonwealth or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside of the commonwealth.

              (e) In the implementation of this section, an alien's immigration status may be determined by: (i) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; or (ii) the United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 U.S.C. section 1373(c).

              (f) Except as provided in federal law, officials or agencies of the commonwealth and counties, cities, towns and other political subdivisions of the commonwealth may not be prohibited or in any way be restricted from sending, receiving or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other federal, state or local governmental entity for the following official purposes: (i) determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of the commonwealth; (ii) verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of the commonwealth or a judicial order issued pursuant to a civil or criminal proceeding in the commonwealth; (iii) if the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by title II, chapter 7 of the federal Immigration and Nationality Act; or (iv) pursuant to 8 U.S.C. section 1373 and 8 U.S.C. section 1644.

              (g) This section does not implement, authorize or establish and shall not be construed to implement, authorize or establish the REAL ID act of 2005, P.L. 109–13, division B, including the use of a radio frequency identification chip.

              (h) A person who is a legal resident of the commonwealth may bring an action in superior court to challenge any official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws, including 8 U.S.C. sections 1373 and 1644, to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than $500 and not more than $5,000 for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.

              (i) A court shall collect the civil penalty prescribed in subsection (h) of this section and remit the civil penalty to the state treasurer for deposit in the gang and immigration intelligence team enforcement mission fund established by section 13.

              (j) The court may award court costs and reasonable attorney fees to any person or any official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth that prevails by an adjudication on the merits in a proceeding brought pursuant to this section.

              (k) Except in relation to matters in which the officer is adjudged to have acted in bad faith, a law enforcement officer is indemnified by the law enforcement officer's agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.

              (l) This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.

              Section 4. (a) In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. section 1304(e) or 1306(a).

              (b) In the enforcement of this section, an alien's immigration status may be determined by: (i) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status and (ii) the United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 U.S.C. section 1373(c).

              (c) A law enforcement official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or the constitution of the commonwealth.

              (d) A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basisuntil the sentence imposed by the court has been served or the person is eligible for release as authorized by chapter 127.

              (e) In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs.

              (f) This section does not apply to a person who maintains authorization from the federal government to remain in the United States.

              (g) Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record.

              (h) A violation of this section shall be punished by a fine of not more than $100, or by imprisonment in a jail or house of correction for not more than 20 days for a first offense and 30 days for a second or subsequent offense or both such fine and imprisonment.

              Section 5. Notwithstanding any other law, in the enforcement of any general law relative to the smuggling of human beings for profit or commercial purpose, a law enforcement officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law.

              Section 6.  (a) It shall be unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

              (b) It shall be unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

              (c) It shall be unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in the commonwealth.

              (d) A law enforcement official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or the constitution of the commonwealth.

              (e) In the enforcement of this section, an alien's immigration status may be determined by: (i) A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; or (ii) the United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 U.S.C. section 1373(c).

              (f) A violation of this section shall be punished by a fine of not more than $2,500, or by imprisonment in a jail or house of correction for not more than 6 months or both.

              (g) For the purposes of this section, the following words shall have the following meanings unless the context clearly requires otherwise:-

              “Solicit”, verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed.

              “Unauthorized alien”, an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. section 1324a(h)(3).

              Section 7.  (a) It is unlawful for a person who is in violation of a criminal offense to:

              (i) transport or move or attempt to transport or move an alien in the commonwealth, in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

              (ii) conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in the commonwealth, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

              (iii) encourage or induce an alien to come to or reside in the commonwealth if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.

              (b) A means of transportation that is used in the commission of a violation of this section is subject to mandatory vehicle immobilization or impoundment.

              (c) A law enforcement official or agency of the commonwealth or a county, city, town or other political subdivision of the commonwealth may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or the constitution of the commonwealth.

              (d) In the enforcement of this section, an alien's immigration status may be determined by: (i) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; or (ii) the United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 U.S.C. section 1373(c).

              (e) This section does not apply to a employee of the department of children and families acting in an official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medical technician and who is transporting or moving an alien in the commonwealth.

              (f) A person who violates this section shall be punished by a fine of not less than $1,000 and not more than $2,500, or by imprisonment in a jail or house of correction for not more than 6 months or both, except that a violation of this section that involves 10 or more illegal aliens shall be punished by a fine of not less than $1,000 or by imprisonment in a jail or house of correction for not more than 2 years or both for each alien who is involved.

              Section 8.  A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person to be arrested has committed any public offense that makes the person removable from the United States.

              Section 9.  (a) An employer shall not knowingly employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in the commonwealth, the employer knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

              (b) The attorney general shall prescribe a complaint form for a person to allege a violation of subsection (a). The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly employs an unauthorized alien, the attorney general or district attorney shall investigate whether the employer has violated subsection (a). If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or district attorney may investigate whether the employer has violated subsection (a). This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or district attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a district attorney shall be submitted to the district attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The state police or any local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the attorney general or district attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. section 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to said 8 U.S.C. section 1373(c). A person who knowingly files a false and frivolous complaint under this subsection shall be punished by a fine of not more than $500 or by imprisonment in a jail or house of correction for not more than 30 days or both.

              (c) If, after an investigation, the attorney general or district attorney determines that the complaint is not false and frivolous:

              (i) the attorney general or district attorney shall notify the United States immigration and customs enforcement of the unauthorized alien;

              (ii) the attorney general or district attorney shall notify the local law enforcement agency of the unauthorized alien; and

              (iii) the attorney general shall notify the appropriate district attorney to bring an action pursuant to subsection (d) if the complaint was originally filed with the attorney general.

              (d) An action for a violation of subsection (a) shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. The district attorney shall not bring an action against any employer for any violation of subsection (a) that occurs before January 1, 2008. A second violation of this section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (a) or subsection (a) of section 10.

              (e) For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

              (f) On a finding of a violation of subsection (a):

              (1) For a first violation, as described in paragraph (3), the court:

              (i) shall order the employer to terminate the employment of all unauthorized aliens;

              (ii) shall order the employer to be subject to a 3 year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports with the district attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work;

              (iii) shall order the employer to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in the commonwealth and that the employer will not intentionally or knowingly employ an unauthorized alien in the commonwealth. The court shall order the appropriate agencies to suspend all licenses subject to this clause that are held by the employer if the employer fails to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. All licenses that are suspended for failure to file a signed sworn affidavit shall remain suspended until the employer files a signed sworn affidavit with the district attorney. Notwithstanding any general or special law to the contrary, on filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate agencies. For the purposes of this clause, the licenses that are subject to suspension are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any general or special law to the contrary, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to subsection (g); and

              (iv) may order the appropriate agencies to suspend all licenses described in clause (iii) of this paragraph that are held by the employer for not to exceed 10 business days. The court shall base its decision to suspend under this clause on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant: the number of unauthorized aliens employed by the employer; any prior misconduct by the employer; the degree of harm resulting from the violation; whether the employer made good faith efforts to comply with any applicable requirements; the duration of the violation; the role of the directors, officers or principals of the employer in the violation; and any other factors the court deems appropriate.

              (2) For a second violation, as described in paragraph (3), the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

              (3) The violation shall be considered:

              (i) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or subsection (f) of section 10 for that employer's business location.

              (ii) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or subsection (f) of section 10 for that employer's business location.

              (g) The attorney general shall maintain copies of court orders that are received pursuant to subsection (f) and shall maintain a database of the employers and business locations that have a first violation of subsection (a) and make the court orders available on the attorney general's website.

              (h) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to said 8 U.S.C. section 1373(c).

              (i) For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.

              (j) For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 U.S.C. section 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien. An employer is considered to have complied with the requirements of said 8 U.S.C. section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

              (k) It is an affirmative defense to a violation of subsection (a) that the employer was entrapped. To claim entrapment, the employer must admit by the employer's testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:

              (i) the idea of committing the violation started with law enforcement officers or their agents rather than with the employer;

              (ii) the law enforcement officers or their agents urged and induced the employer to commit the violation; and

              (iii) the employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

              (l) An employer does not establish entrapment if the employer was predisposed to violate subsection (a) and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.

              Section 10. (a) An employer shall not intentionally employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer intentionally contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

              (b) The attorney general shall prescribe a complaint form for a person to allege a violation of subsection (a). The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly intentionally employs an unauthorized alien, the attorney general or district attorney shall investigate whether the employer has violated subsection (a). If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or district attorney may investigate whether the employer has violated subsection (a). This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or district attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a district attorney shall be submitted to the district attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The state police or any local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the attorney general or district attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. section 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to said 8 U.S.C. section 1373(c). A person who knowingly files a false and frivolous complaint under this subsection shall be punished by a fine of not more than $500 or by imprisonment in a jail or house of correction for not more than 30 days or both.

              (c) If, after an investigation, the attorney general or district attorney determines that the complaint is not false and frivolous:

              (i) the attorney general or district attorney shall notify the United States immigration and customs enforcement of the unauthorized alien;

              (ii) The attorney general or district attorney shall notify the local law enforcement agency of the unauthorized alien; and

              (iii) the attorney general shall notify the appropriate district attorney to bring an action pursuant to subsection (d) if the complaint was originally filed with the attorney general.

              (d) An action for a violation of subsection (a) shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. The district attorney shall not bring an action against any employer for any violation of subsection (a) that occurs before January 1, 2008. A second violation of this section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (a) or subsection (a) of section 9.

              (e) For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

              (f) On a finding of a violation of subsection (a):

              (1) For a first violation, as described in paragraph (3) of this subsection, the court shall:

              (i) order the employer to terminate the employment of all unauthorized aliens;

              (ii) order the employer to be subject to a 5 year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports with the district attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work; and

              (iii) order the appropriate agencies to suspend all licenses described in clause (iv) that are held by the employer for a minimum of 10 days. The court shall base its decision on the length of the suspension under this subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant: the number of unauthorized aliens employed by the employer; any prior misconduct by the employer; the degree of harm resulting from the violation; whether the employer made good faith efforts to comply with any applicable requirements; the duration of the violation; the role of the directors, officers or principals of the employer in the violation; andany other factors the court deems appropriate; (iv) order the employer to file a signed sworn affidavit with the district attorney. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in the commonwealth and that the employer will not intentionally or knowingly employ an unauthorized alien in the commonwealth. The court shall order the appropriate agencies to suspend all licenses subject to this clause that are held by the employer if the employer fails to file a signed sworn affidavit with the district attorney within 3 business days after the order is issued. All licenses that are suspended for failing to file a signed sworn affidavit shall remain suspended until the employer files a signed sworn affidavit with the district attorney. For the purposes of this clause, the licenses that are subject to suspension are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to subsection (g).

              (2) For a second violation, as described in paragraph (3), the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

              (3) The violation shall be considered:

              (i) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or subsection (f) of section 9 for that employer's business location.

              (ii) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or subsection (f) of section 9 for that employer's business location.

              (g) The attorney general shall maintain copies of court orders that are received pursuant to subsection (f) and shall maintain a database of the employers and business locations that have a first violation of subsection (a) and make the court orders available on the attorney general's website.

              (h) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to said 8 U.S.C. section 1373(c).

              (i) For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not intentionally employ an unauthorized alien.

              (j) For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 U.S.C. section 1324a(b) establishes an affirmative defense that the employer did not intentionally employ an unauthorized alien. An employer is considered to have complied with the requirements of said 8 U.S.C. section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

              (k) It is an affirmative defense to a violation of subsection (a) that the employer was entrapped. To claim entrapment, the employer must admit by the employer's testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:

              (i) the idea of committing the violation started with law enforcement officers or their agents rather than with the employer;

              (ii) the law enforcement officers or their agents urged and induced the employer to commit the violation; and

              (iii) the employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

              (l) An employer does not establish entrapment if the employer was predisposed to violate subsection (a) and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.

              Section 11.  (a) For the purposes of this subsection, the following words shall have the following meaning unless the context clearly requires otherwise:-

              “Economic development incentive”, any grant, loan or performance-based incentive from any government entity that is awarded after September 30, 2008. Economic development incentive does not include any tax provision under chapters 58 to 65C, inclusive.

              “E-verify program”, the federal program designed to allow employers to determine the eligibility of their employees to work in the United States.

              “Government entity”, the commonwealth and any political subdivision of the commonwealth that receives and uses tax revenues.

              (b) Every employer, after hiring an employee, shall verify the employment eligibility of the employee through the federal e-verify program and shall keep a record of the verification for the duration of the employee's employment or at least 3 years, whichever is longer.

              (c) In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the e-verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the e-verify program. If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail of the government entity's determination of noncompliance and the employer's right to appeal the determination. On a final determination of noncompliance, the employer shall repay all monies received as an economic development incentive to the government entity within 30 days of the final determination.

              (d) Every 3 months, the attorney general shall request from the federal Department of Homeland Security a list of employers from the commonwealth that are registered with the e-verify program. On receipt of the list of employers, the attorney general shall make the list available on the attorney general's website.

              Section 12. A law enforcement officer shall cause the removal and either immobilization or impoundment of a vehicle if the officer determines that a person is driving the vehicle while any of the following applies:

              (i) in furtherance of the illegal presence of an alien in the United States and in violation of a criminal offense, the person is transporting or moving or attempting to transport or move an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law;

              (ii) the person is concealing, harboring or shielding or attempting to conceal, harbor or shield from detection an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, entered or remains in the United States in violation of law.

              Section 13.  The gang and immigration intelligence team enforcement mission fund is established consisting of monies deposited pursuant to section 3 and monies appropriated by the legislature. The executive office of public safety and security shall administer the fund. Monies in the fund are subject to legislative appropriation and shall be used for gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration.

              Section 14.  (a) The terms of this act regarding immigration shall be construed to have the meanings given to them under federal immigration law.

              (b) This chapter shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.

              (c) Nothing in this chapter shall implement or shall be construed or interpreted to implement or establish the REAL ID act of 2005, P.L. 109–13, division B, including the use of a radio frequency identification chip.

              Section 15. (a) There is hereby established a joint border security advisory committee consisting of the following members: (i) the president of the senate or the president's designee; (ii) the speaker of the house of representatives or the speaker's designee; (iii) 2 members of the house of representatives who are appointed by the speaker of the house of representatives;(iv) 2 members of the senate who are appointed by the president of the senate; and (v) 6 members who are appointed by the governor.

              (b) Committee members are not eligible to receive compensation for committee activities but may be eligible for reimbursement of expenses.

              (c) The president and the speaker of the house of representatives shall each appoint a cochairperson of the committee.

              (d) The commission shall meet on the call of the 2 cochairpersons, but no more frequently than monthly.

              (e) The committee may: (i) take testimony and other evidence regarding the international border with Mexico; (ii) analyze border crossing statistics; (iii) analyze related crime statistics; (iv) make recommendations designed to increase border security; and (v) make other recommendations deemed essential by the committee.

              (f) The committee may use the services of legislative staff as required.

              (g) Beginning November 30, 2012 and each month thereafter, the commission shall submit a written report of its findings and recommendations to the speaker of the house of representatives, the president of the senate and the governor. The commission shall provide a copy of the report to the secretary of state.

              (h) Notwithstanding any general or special law to the contrary, the committee may vote to go into executive session to take testimony or evidence it considers sensitive or confidential in nature, which if released could compromise the security or safety of law enforcement or military personnel or a law enforcement or national guard law enforcement support operation.

              SECTION 2.  Section 15 of chapter 275 is hereby repealed.

              SECTION 3.  (a) Notwithstanding any general or special law to the contrary, the attorney general shall act at the direction of the governor in any challenge in a state or federal court to this act and any amendments to this act.

              (b) Notwithstanding any general or special law to the contrary, the governor may direct counsel other than the attorney general to appear on behalf of the commonwealth to defend any challenge to this act and any amendments to this act.

              SECTION 4.  Section 2 shall take effect on December 31, 2015.

The information contained in this website is for general information purposes only. The General Court provides this information as a public service and while we endeavor to keep the data accurate and current to the best of our ability, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Error