May 19th, 2013 | Comments Off on Undocumented Persons and the Ministry

Ministries are often  faced with decision regarding undocumented immigrants. Knowingly hiring a person who is undocumented is illegal. Beyond the hiring issues, the most likely source of issues is Georgia’s Illegal Immigration Reform and Enforcement Act of 2011 (as amended in 2013) (Georgia’s Immigration Law).

Section 7 of Georgia’s Immigration Law, O.C.G.A.§  16-11-200 et.seq.is (arguably) the most onerous part of the statute. Section 7 creates three distinct state criminal violations: (1) transporting or moving an illegal alien, O.C.G.A. § 16-11-200(b); (2) concealing or harboring an illegal alien, id. § 16-11-201(b); and (3) inducing an illegal alien to enter the state of Georgia, id. § 16-11-202(b). Each of these offenses requires that the accused also be engaged in another criminal  activity, and each further requires that the accused know of the illegal status of the subject.

Section 7 was attacked on constitutional grounds in federal court. The District Judge (the trial level) found Section 7 unconstitutional and entered a preliminary injunction against its enforcement. The Eleventh Circuit Court of Appeals (the appellate court that reviews cases from Georgia) examined that issue in Georgia Latino Alliance, et.al., v. Governor of Georgia, et.al., 691 F.3d 1250 (11th Cir. 2012). The Court of Appeals agreed with the trial judge and found that the law attempted to criminalize behavior not criminal under federal law. Echoing the decision of the U.S. Supreme Court in Arizona v. U.S., 132 S.Ct. 2492 (2012), the 11th Circuit found that Section 7 was preempted by federal law.  Because it is preempted, Section 7 is unconstitutional and the 11th Circuit struck it down. The trial judge issued a permanent injunction against Section 7 shorty afterward basically taking Section 7 off the books permanently.

Section 8 of the immigration law, O.C.G.A.§  17-5-100 et.seq.,  allows a Georgia police officer to investigate immigration status (including asking for documentation of legal status) when investigating another crime.  The 11th Circuit Court of Appeals, in a decision similar to the U.S. Supreme Court in the Arizona case, did not find that such a statute was necessary unconstitutional but remanded to the district court (trial level) for further proceedings. That issue is still being briefed and has yet be decided.

Georgia’ Immigration Law, as passed in 2011 and updated in 2013, imposes additional requirements. In summary:

First, the bill requires all public employers, their contractors and subcontractors to verify the work eligibility and “lawful presence” of all new employees though the online federal work authorization program called E-Verify. In addition, under Section 3 public employers must provide an annual report to exhibit compliance with the bill. Local government entities that do not comply with the immigration sanctuary policies “shall be subject to the withholding of state funding or state administered federal funding,” with the exception of funds listed under another code. Further, foreign passports alone are not considered a secure and verifiable identification document and cannot be used to obtain public benefits. SB 160 prevents undocumented immigrants from securing an adult education, driver’s license, grants, public housing, retirement and other listed federal, state and local benefits.

Importantly for most ministries, however, the bill does not penalize those who knowingly act in violation of the identification requirement by supplying basic human necessities to undocumented immigrants.