HB 87 Fact Sheet and KNOW YOUR RIGHTS
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GEORGIA’S HOUSE BILL 87 (HB 87) – FACT SHEET
HB 87 TIMELINE
- January 27, 2011: Rep. Matt Ramsey introduces HB 87
- April 14, 2011: GA legislature passes the amended version of HB 87
- May 13, 2011: Governor Nathan Deal signs HB 87 into law
- June 2, 2011: Lawsuit against HB 87 filed in federal district court
- June 20, 2011: Hearing for HB 87 lawsuit takes place under Judge Thomas Thrash
- June 27, 2011: Judge Thrash temporarily blocks or enjoins certain parts of HB 87 from going into effect. Specifically, Sections 7 and 8 are enjoined.
- July 1, 2011: All provisions of HB 87 become effective except:
o Public benefits (Sec. 17) effective January 1, 2012
o E-Verify (Sec. 12) effective Jan. 1, 2012 (500+ full-time employees); July 1, 2012 (100+ full-time employees); July 1, 2013 (10+ full-time employees).
- August 20, 2012: 11th Circuit Court of Appeals upholds injunction on Section 7 and reverses in part and remands Section 8 to District Court. Decision
- November 26, 2012: 11th Circuit Court of Appeals Sustains HB 87 and refuses to reconsider Section 7
WHAT DOES HB 87 DO?
HB 87 expands the state’s power and authority to enforce federal immigration law.
- Police Can Demand Identification of Anyone They Investigate (Sec. 8): During any investigation of a suspect, police will have the right to verify the suspect’s immigration status IF the suspect cannot provide (generally) any identification card issued by a state or the federal government (exs., GA driver license, GA ID card, US passport, valid I-94). Documents NOT accepted include Matricula Consular de Seguridad, consular matriculation or identification cards issued by a foreign government.
o Police may take you to jail if you cannot provide the right documents. If police verify you are undocumented, police may detain and transport you to a federal or state prison and notify the Department of Homeland Security.
o Exception: If you contact the state or local police to report a crime, to act as witness to a crime, or seek assistance as a crime victim “in good faith,” you will not be subject to an immigration status check.
- PoliceAuthority through “Secure Communities” and the 287(g) Program (Secs. 9-11): The 287(g) program grants local police and sheriffs the authority to act as federal immigration officers – currently Cobb, Gwinnett, Whitfield and Hall counties have 287(g) agreements. “Secure Communities” is another program that checks the fingerprints of everyone arrested and booked through immigration records – virtually all metro-Atlanta counties have S-Comm and the entire state will have S-Comm by September 2013.
o Section 9 gives the officers immunity from any damages or liability as long as they acted in “good faith.” Section 11 provides incentive programs and grants to use these programs.
- You Must Prove your Status to Receive Public Benefits (Sec. 17): Any agency providing “public benefits”- including adult education, health benefits, business and housing loans- must require every applicant to provide documentation of legal status. Citizen children of undocumented parents are still eligible for benefits.
HB 87 establishes new crimes.
- Aggravated Identity Fraud for those who use fake identification to gain employment (Secs. 4, 5, 6). Punishment for 1st time violators includes 1-10 years in jail and/or a fine up to $100,000. 2nd + violation include 3-15 years in jail and/or a fine up to $250,000. Adults and youth under 21 face 1-3 years in jail and/or a fine up to $5,000.
- Harboring or transporting undocumented immigrants (Sec. 7). Punishment for 1st time violators transporting 7 or less undocumented immigrants include up to 1 year in jail and/or a fine up to $1,000. Punishment for 2nd time violation OR for those who transport 8 or more undocumented immigrants includes 1-5 years in jail and/or $5,000 – $20,000 in fines.
o Any person (documented or undocumented) who violates a criminal offense while “knowingly and intentionally” transporting an undocumented person is guilty. Traffic violations are considered “criminal offenses.”
o Exception: Anyone transporting undocumented immigrants: (1) as part of their government job; (2) to a required court or administrative hearing; (3) who were “lawfully hired;” (4) that provides “privately funded social services.”
o Any person who violates a criminal offence while “knowingly” harboring or “substantially helping” undocumented immigrants anywhere in Georgia is guilty.
o Exception: Anyone who harbors undocumented immigrants that provides: (1) services to infants, children or crime victims; (2) emergency medical services; (3) legal representation in a criminal case; (4) “privately funded social services.” The law does not clearly define who providers of such privately funded social services are.
- Inducing / Enticing Undocumented Immigrants: Any person who violates a criminal offence while “knowingly” inducing or enticing an undocumented immigrant to this state is guilty. Employers that induce or entice undocumented immigrants are guilty of a felony.
HB 87 requires that all public employers, public contractors/ subcontractors, and many private employers use E-Verify (Secs. 3 and 12).
- What is E-Verify: E-Verify is a voluntary federal electronic employment verification program that is error-prone and subject to employer abuse. E-Verify should only be used for newly hired, full-time employees. “Full time” means working at least 35 hours a week.
- When required: Before a business can apply or re-apply for a business license, occupational tax certificate or other document required for operation. Proof will be received by signed affidavit that includes the business’ E-Verify user number and date of authority for use.
- Punishment: Loss or inability to obtain a business license. Any business that knowingly submits a false affidavit will be fined up to $1,000 and/or spend 1-5 years in prison. Government agencies may also be guilty of a misdemeanor.
- Defense: Acting in “good faith” and making a “reasonable attempt” to comply with the E-Verify requirements. Also, businesses will have 30 days to come into compliance before being charged with a crime.
GEORGIA’S HOUSE BILL 87 (HB 87) – KNOW YOUR RIGHTS!
When can a police officer ask about my immigration status?
Under HB 87, no officer has the authority to randomly check your immigration status unless she/he has “probable cause” to believe you have committed a state or federal crime and you fail to provide the appropriate identification listed below. Examples of crimes include minor traffic violations and the new crimes under HB 87 (see HB 87 Fact Sheet). Note it is not a crime to simply be out of status (i.e., visa overstay); however, it is a crime to be deported and return without papers.
“Probable cause” is a legal term that tells officers when they have the right to check your status and gives them the right to arrest you. In real life, what constitutes “probable cause” is largely up to the officer and what facts she/he presents as evidence that made them believe you committed a crime. A common example of probable cause includes admitting guilt. However, an officer cannot say there is probable cause based simply on your refusing to answer questions, declining a search, or on your race or national origin.
What ID must I show? What are “secure and verifiable documents?”
Under HB 87, you would need to show one of the following “secure and verifiable documents” when an officer questions you:
1) A valid Georgia Driver’s License (“DL”);
2) A valid Georgia Identification Card;
3) A valid DL from another state or district that checks immigration status (New Mexico and Washington do not check status), or a valid ID from the federal government;
4) A valid DL from your home country + a valid international driving permit if that driver’s license is not in English;
5) A US passport or valid I-94 document/foreign passport; or
6) Other ID that a police officer deems is “sufficient.” However, officers will not accept Matricula Consular de Seguridad, consular matriculation or identification cards issued by a foreign government.
Even though we believe HB 87 is unconstitutional, practically speaking it is advisable to carry a valid ID with you when out in public. Police may stop you on the street, in your car, anywhere.
What if passengers in my car are undocumented? Can police question their immigration status?
It depends but generally yes. HB 87 says that unless the person is suspected of committing a state or federal crime police cannot question their status. So in the case of a traffic violation, passengers generally can’t be held responsible for the driver’s conduct unless police become suspicious of the passengers during the course of the stop. The unfortunate reality is that passenger questioning happens often and HB 87 may further increase “suspicion” of passengers that look or talk a certain way. Passengers have the right to and should politely refuse to answer questions and refuse search requests. See below for more information.
Under HB 87, can anyone else (other than police) ask about my immigration status?
- Public Benefits. Starting January 1, 2012, any GA public agency providing ‘public benefits’ (exs., adult education, health benefits, business and housing loans) may ask you to provide “secure and verifiable” ID to receive benefits.
- Any agency requiring ID. Starting January 1, 2012, any other public agency that requires identification for “any official purpose” will require the presentation of “secure and verifiable” ID. Agencies could include security guards inside a public building, public school officials, immigration lawyers submitting documents to court, etc.
- HB 87 provides specific exceptions for this ID check for those reporting a crime; service providers of children or domestic violence victims; emergency medical providers; and attorneys representing criminal defendants.
- Employers / E-Verify. Under HB 87, all public employers and many private employers will be required to register with E-Verify and to check the immigration status of any newly hired full-time employee or risk being guilty of a crime.
If you are asked for ID in any of these settings, please contact AALAC at 404.585.8446.
What should I do if I am asked about my immigration status?
STAY CALM, DON’T RUN: Do not argue with or run from police, this may give police the ‘reasonable suspicion’ they need to stop you. If you’re in the car, keep your hands on the wheel.
STATE YOUR NAME BUT OTHERWISE REMAIN SILENT: Anything you say can and will be used against you in court, so the less you say the better! You are required to state your name if asked by police but nothing more. Police may also try to get you to admit to breaking the law by asking, “Do you know how fast you were going?” Don’t fall for it! You do not have to admit you might have broken a law. The best answer to that and similar questions is “No, Officer.”
Don’t announce to police that you “know your rights.” They’ll take that as a challenge. Anytime before or after arrest you can state that “I wish to remain silent and speak to my lawyer” even if you don’t have one.
DON’T CARRY FAKE ID, DON’T LIE: If you are undocumented, do not lie about your status and do not provide fake IDs to anyone. If a police officer asks for your ID, say “I wish to remain silent” and/or ask if you are free to go.
ASK IF YOU CAN LEAVE. Detentions are voluntary unless you verbally asked to leave. Any time police detain you, it’s a good idea to ask: “Officer, are you detaining me, or am I free to go?” If the officer says you may leave, it’s up to you to leave. If you choose to stay, the detention is automatically legal.
DON’T BE INTIMIDATED OR FOOLED INTO AGREEING TO A SEARCH: If police detain and frisk you, you have the right to clearly state your refusal to consent to the search. For example, you may say “Officer, I know you’re just doing your job, but I don’t consent to searches.” But you should only verbally refuse. Never physically resist.
If you are at home or at work, police or immigration officers cannot enter without a warrant or permission by your employer. You can refuse to let them enter your home without a written warrant. If they do enter the premises, remain calm, do not run, and remain silent.
IF YOU ARE ARRESTED DO NOT SIGN ANY DOCUMENTS WITHOUT SPEAKING WITH AN ATTORNEY.
The information provided here is not intended to serve as legal advice. Please consult with an attorney if you have specific questions about your situation. Please also contact AALAC at 404.585.8446 or firstname.lastname@example.org.
HB 87 Fact Sheet:
HB 87 KNOW YOUR RIGHTS Sheet:
Video of our June 25th HB 87 Know Your Rights Event: http://www.youtube.com/watch?v=6QZPqA4ZEDQ