AB173: Bill Text

LRB-1116/4

PJH&MES:cjs:jf

2011 - 2012 LEGISLATURE

2011 Assembly BILL 173

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.

AB173,1,4 An Act to amend 302.372 (2) (a) (intro.) and 302.372 (3); and to create 66.0408 and 175.55 of the statutes; relating to: local ordinances, determining the lawful presence of a person arrested for or charged with a crime or certain civil violations, 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 lawful presence.

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 Section 1. 66.0408 of the statutes is created to read:

AB173,2,3 66.0408 Local ordinances, immigration status, illegal aliens. (1) Definitions. In this section:

AB173,2,5 (a) "Illegal alien" means an individual who is not a U.S. citizen and who is not lawfully present in the United States.

AB173,2,6 (b) "Political subdivision" means a city, village, town, or county.

AB173,2,8 (c) "Satisfactory immigration status" means immigration status under which an individual who is not a U.S. citizen is lawfully present in this country.

AB173,2,12 (2) Inquiries about immigration status; reporting illegal aliens. (a) A political subdivision may not enact an ordinance, adopt a resolution, or establish a policy that prohibits an employee of that political subdivision from doing any of the following:

AB173,3,2 1. Inquiring whether an individual seeking or receiving public services from the political subdivision has satisfactory immigration status.

AB173,3,4 2. Notifying the federal government of the presence of illegal aliens in the political subdivision.

AB173,3,5 3. Acting according to or complying with s. 175.55.

AB173,3,8 (b) If a political subdivision has in effect on the effective date of this paragraph .... [LRB inserts date], an ordinance or resolution that is inconsistent with par. (a), the ordinance or resolution does not apply and may not be enforced.

AB173,3,13 (3) Private right of action. (a) If a resident of this state believes that an employee of a political subdivision is acting in a way that is inconsistent with sub. (2) (a), the resident may file a writ of mandamus with the circuit court of the county in which the activity is alleged to have occurred to compel the political subdivision to comply with sub. (2).

AB173,3,16 (b) If the court finds that the political subdivision has failed to comply with sub. (2) (a), the political subdivision shall forfeit $500 for each day after the filing of an action under par. (a) that it was noncompliant.

AB173, s. 2 Section 2. 175.55 of the statutes is created to read:

AB173,3,19 175.55 Determination of lawful presence. (1) In this section, "law enforcement officer" has the meaning given in s. 165.85 (2) (c).

AB173,4,2 (2) If a law enforcement officer has reasonable suspicion that a person who is arrested for or charged with a crime or with a violation of state law that may result in the imposition of a fine, forfeiture, or period of imprisonment is not lawfully present in this state, a person authorized under sub. (7) shall determine the lawful presence of the person before the person is released. For the purposes of this 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 suspicion that the person is not lawfully present in this state.

AB173,4,4 (3) For the purposes of this section, proof of lawful presence may be any of the following:

AB173,4,5 (a) A U.S. passport.

AB173,4,8 (b) A birth certificate bearing an official seal or other mark of authentication and issued by a state, county, or municipality within the United States or by a territory or possession of the United States.

AB173,4,9 (c) A certification of birth abroad issued by the federal department of state.

AB173,4,10 (d) A certificate of naturalization

AB173,4,11 (e) A certificate of U.S. citizenship.

AB173,4,13 (f) A permanent resident card or alien registration receipt card, along with the person's bureau of citizenship and immigration services alien registration number.

AB173,4,15 (g) Any other proof specified in 49 CFR 383.71 (a) (9), along with the person's bureau of citizenship and immigration services alien registration number.

AB173,4,17 (h) Documentary proof of conditional permanent resident status in the United States.

AB173,4,19 (i) A valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States.

AB173,4,21 (j) An approved application for asylum in the United States or documentary proof that the person has entered into the United States in refugee status.

AB173,4,22 (k) A pending application for asylum in the United States.

AB173,4,24 (L) A pending or approved application for temporary protected status in the United States.

AB173,4,25 (m) An approved deferred action status.

AB173,5,3 (n) A pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

AB173,5,5 (o) A valid Wisconsin operator's license or a valid identification card issued under s. 343.50.

AB173,5,11 (4) Any person who does not provide proof of his or her lawful presence in this state as provided under sub. (3) may be held in secured custody for no more than 48 hours. If the person provides proof of his or her lawful presence during that time, the person may be released. If the person is not being held in secured custody pursuant to another statute and does not provide proof of his or her lawful presence during that time, the law enforcement agency shall proceed under sub. (5).

AB173,5,18 (5) The law enforcement agency shall notify the U.S. Immigration and Customs Enforcement or the U.S. Customs and Border Protection that a person who has not provided proof of his or her lawful presence in this state has been identified and shall securely transport the person to a federal facility in this state or to any other point of transfer into federal custody. A law enforcement officer shall obtain judicial authorization before securely transporting a person under this section to a point of transfer that is outside of this state.

AB173,5,22 (6) If a person who does not provide proof of his or her lawful presence is convicted of a crime and is imprisoned, upon the person's discharge from jail or from confinement in prison, the sheriff or the department of corrections shall proceed under sub. (5).

AB173,5,24 (7) For the purposes of this section, a person's lawful presence may be determined by: