2011 - 2012 LEGISLATURE
June 8, 2011 - Introduced by Representatives Pridemore, Wynn, LeMahieu,
Kleefisch, Steineke and Jacque, cosponsored by Senator Lasee. Referred to
Committee on Homeland Security and State Affairs.
1An Act to amend
302.372 (2) (a) (intro.) and 302.372 (3); and to create
and 175.55 of the statutes; relating to: local ordinances, determining the
3lawful presence of a person arrested for or charged with a crime or certain civil
4violations, and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill requires a law enforcement officer to have a federal agency, or a person
authorized by a federal agency, determine whether a person who is arrested for or
charged with a crime or civil violation is lawfully present in the state if the officer
has reasonable suspicion that the person is not lawfully present. Under the bill, a
law enforcement officer may not consider a person's race, color, or national origin
except as permitted under the U.S. and the Wisconsin constitutions. The bill states
that if a person refuses or fails to provide identification at the time he or she is
arrested for or charged with a crime or civil violation, that refusal or failure can give
rise to reasonable suspicion that the person is not lawfully present.
Under the bill, a person who cannot prove his or her lawful presence may be
held in secured custody for up to 48 hours to allow the person to obtain
documentation of his or her lawful presence. The bill specifies the kinds of
documentation that are satisfactory to prove lawful presence. Under the bill, no
state or local law enforcement officer may verify a person's lawful presence unless
he or she has been authorized by the federal government to do so. If the person
produces the required documentation, he or she may be released.
Under the bill, a law enforcement agency must transport a person who cannot
produce documentation that he or she is lawfully present to a federal immigration
or border patrol agency. Under the bill, this can be done before the person is tried
for a crime or, if the person is convicted of a crime, after the person's discharge from
jail or prison. The bill allows counties to seek reimbursement for jail costs from a
person who was held in secured custody because he or she could not provide proof of
Further, the bill prohibits a city, village, town, or county (political subdivision)
from enacting an ordinance, adopting a resolution, or establishing a policy that
would prohibit an employee from inquiring whether an individual who receives
public services is lawfully present in the state, notifying the federal government of
the presence of aliens who are not lawfully present, or acting according to or
complying with state law regarding arrested persons who are not lawfully present.
Under the bill, a private citizen who believes that a political subdivision is not
complying with these requirements may petition for a writ of mandamus requiring
compliance, and, if a court finds that a political subdivision has failed to comply, the
political subdivision must forfeit $500 for each day of noncompliance.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB173, s. 1
66.0408 of the statutes is created to read:
266.0408 Local ordinances, immigration status, illegal aliens. (1) 3Definitions.
In this section:
(a) "Illegal alien" means an individual who is not a U.S. citizen and who is not 5
lawfully present in the United States.
(b) "Political subdivision" means a city, village, town, or county.
(c) "Satisfactory immigration status" means immigration status under which 8
an individual who is not a U.S. citizen is lawfully present in this country.
9(2) Inquiries about immigration status; reporting illegal aliens.
(a) A 10
political subdivision may not enact an ordinance, adopt a resolution, or establish a 11
policy that prohibits an employee of that political subdivision from doing any of the 12
1. Inquiring whether an individual seeking or receiving public services from 2
the political subdivision has satisfactory immigration status.
2. Notifying the federal government of the presence of illegal aliens in the 4
3. Acting according to or complying with s. 175.55.
(b) If a political subdivision has in effect on the effective date of this paragraph 7
.... [LRB inserts date], an ordinance or resolution that is inconsistent with par. (a), 8
the ordinance or resolution does not apply and may not be enforced.
9(3) Private right of action.
(a) If a resident of this state believes that an 10
employee of a political subdivision is acting in a way that is inconsistent with sub. 11
(2) (a), the resident may file a writ of mandamus with the circuit court of the county 12
in which the activity is alleged to have occurred to compel the political subdivision 13
to comply with sub. (2).
(b) If the court finds that the political subdivision has failed to comply with sub. 15
(2) (a), the political subdivision shall forfeit $500 for each day after the filing of an 16
action under par. (a) that it was noncompliant.
AB173, s. 2
175.55 of the statutes is created to read:
18175.55 Determination of lawful presence. (1) I
n this section, "law 19
enforcement officer" has the meaning given in s. 165.85 (2) (c).
If a law enforcement officer has reasonable suspicion that a person who is 21
arrested for or charged with a crime or with a violation of state law that may result 22
in the imposition of a fine, forfeiture, or period of imprisonment is not lawfully 23
present in this state, a person authorized under sub. (7) shall determine the lawful 24
presence of the person before the person is released. For the purposes of this 25
subsection, a person's refusal or failure to provide identification at the time he or she
is arrested for or charged with the crime or the violation may give rise to reasonable 2
suspicion that the person is not lawfully present in this state.
For the purposes of this section, proof of lawful presence may be any of the 4
(a) A U.S. passport.
(b) A birth certificate bearing an official seal or other mark of authentication 7
and issued by a state, county, or municipality within the United States or by a 8
territory or possession of the United States.
(c) A certification of birth abroad issued by the federal department of state.
(d) A certificate of naturalization
(e) A certificate of U.S. citizenship.
(f) A permanent resident card or alien registration receipt card, along with the 13
person's bureau of citizenship and immigration services alien registration number.
(g) Any other proof specified in 49 CFR 383.71
(a) (9), along with the person's 15
bureau of citizenship and immigration services alien registration number.
(h) Documentary proof of conditional permanent resident status in the United 17
(i) A valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry 19
into the United States.
(j) An approved application for asylum in the United States or documentary 21
proof that the person has entered into the United States in refugee status.
(k) A pending application for asylum in the United States.
(L) A pending or approved application for temporary protected status in the 24
(m) An approved deferred action status.
(n) A pending application for adjustment of status to that of an alien lawfully 2
admitted for permanent residence in the United States or conditional permanent 3
resident status in the United States.
(o) A valid Wisconsin operator's license or a valid identification card issued 5
under s. 343.50.
Any person who does not provide proof of his or her lawful presence in this 7
state as provided under sub. (3) may be held in secured custody for no more than 48 8
hours. If the person provides proof of his or her lawful presence during that time, 9
the person may be released. If the person is not being held in secured custody 10
pursuant to another statute and does not provide proof of his or her lawful presence 11
during that time, the law enforcement agency shall proceed under sub. (5).
The law enforcement agency shall notify the U.S. Immigration and 13
Customs Enforcement or the U.S. Customs and Border Protection that a person who 14
has not provided proof of his or her lawful presence in this state has been identified 15
and shall securely transport the person to a federal facility in this state or to any 16
other point of transfer into federal custody. A law enforcement officer shall obtain 17
judicial authorization before securely transporting a person under this section to a 18
point of transfer that is outside of this state.
If a person who does not provide proof of his or her lawful presence is 20
convicted of a crime and is imprisoned, upon the person's discharge from jail or from 21
confinement in prison, the sheriff or the department of corrections shall proceed 22
under sub. (5).
For the purposes of this section, a person's lawful presence may be 24