Delph's Immigration Bill Makes It To The Governor

Media reports have suggested the final version of Sen. Mike Delph's SB 590 was largely symbolic after the law enforcement provisions contained in a similar Arizona law that had been declared unconstitutional by lower federal courts was removed from the bill. The bill, which Gov. Mitch Daniels was expected to sign, still contains a lot of substantive provisions that Sen. Delph sought in his original bill. Sen. Delph is declaring victory on the issue. He had these comments on his blog concerning SB 590:

Conservatives won a four year campaign calling for a crackdown on illegal immigration. Hoosiers will now learn the true cost to taxpayers with a bill being sent to Washington, DC. Companies that benefit somehow from government will be required to use the free online federal web tool known as E-Verify to screen new hires ensuring they are able to work and reside in America. All government entities in Indiana will now be required to use E-Verify. E-Verify alone makes SB 590 a victory, but there's more. Strong Sanctuary City language was passed allowing and empowering private citizens to file in court to compel a local community to comply with existing federal law. Prosecutors will have more tools to help the crackdown. Not only will they be able to impound vehicles from those that traffic human beings, but those that engage in false identification, fraud, and duplication will be held accountable.


Businesses will be held accountable by losing state contracts, tax breaks and benefits. Law enforcement will be able to make arrests when they have a detainer or removal order against an illegal immigrant. The rest of our law enforcement provisions will be sent to a Summer Study Committee for further review to debunk opposition demagoguery. The Lieutenant Governor chairs our Counter Terrorism Task force which includes our State Homeland Security Director and Superintendent of State Police as well as members from local law enforcement. All would provide information to this Summer Study Committee with the end goal of trying to come up with some type of State policy with Federal ICE officers on the enforcement of existing law. The reality on the ground is that cops deal with this issue daily. When they are told to release unlawful immigrants it siphons off morale. Plus, each community is treated differently by ICE resulting in disparate treatment depending on the community and the circumstance. I personally believe this inconsistency feeds the racial profiling myth.

Verification of citizenship will be required for any and all public benefits as well. So at the end of the day, the only component we could not get in SB 590 was the English Only provisions which passed out of the Senate and House in different forms. However, at the end of the session it was deemed too risky to pursue and ultimately became the last issue taken off the table to give us Senate Enrolled ACT 590.

Sen. Delph's website also provided the following section by section breakdown of the bill's provisions:

Section 1: Requires the office of management and budget to calculate an estimate of the total costs of illegal aliens to the state of Indiana and make a written request to the Congress of the United States to reimburse the state of Indiana for those costs.

Section 2: Prohibits a governmental body from enacting or implementing an ordinance, a resolution, a rule, or a policy that prohibits or in any way restricts another governmental body from taking certain actions with regard to information concerning the citizenship or immigration status of an individual. Prohibits a governmental body from limiting or restricting the enforcement of federal immigration laws to less than the full extent permitted by federal law. Allows a person domiciled in Indiana to bring an action to compel a governmental body to comply with these provisions. Requires the court, if certain conditions are met, to enjoin a governmental body from violating these provisions. Requires every law enforcement agency to provide each law enforcement officer with a written notice that the law enforcement officer has a duty to cooperate with state and federal agencies and officials on matters pertaining to enforcement of state and federal laws governing immigration. Provides that these provisions shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

Section 3: Prohibits a law enforcement agency or law enforcement officer from requesting verification of the citizenship or immigration status of an individual from federal immigration authorities if the individual has contact with the agency or officer only as a witness to or a victim of a crime or for purposes of reporting a crime.

Section 4 and 7: Requires a taxpayer to add back the amount of any deduction taken on a federal tax return for a business expense related to employing a person who is not permitted by federal law to be hired as an employee. Excludes payments made for services to a business that was enrolled and participated in the E-Verify program during the time the taxpayer conducted business in Indiana in the taxable year.

Section 5 and 6: Prohibits an economic development for a growing economy tax credit from being computed on any amount withheld from an individual or paid to an individual for services provided in Indiana as an employee, if the individual was, during the period of service, not permitted by federal law to be hired as an employee. Makes an exception for a business that was enrolled and participating in the EVerify program during the time the taxpayer conducted business in Indiana in the taxable year.

Section 8: Requires a criminal offender be evaluated regarding the his or her citizenship and immigration status. Requires the Department of Correction to notify the United States Department of Homeland Security if an offender's citizenship or immigration status cannot be verified and provide certain information upon request by the United States Department of Homeland Security.

Section 9, 10, 11, and 12: Conforming changes for definitions.

Section 13: Requires a state agency or political subdivision to verify the eligibility of any individual who is at least 18 years old and applies for a state or local public benefit or federal public benefit. Makes certain exceptions for health care providers. Establishes requirements for verification and maintaining verification records. Makes it a Class D felony for false, fictitious, or fraudulent statements regarding verification.  Requires the state board of accounts to adopt rules applicable to all political subdivisions to carry out these provisions. Allows for certain variation on these requirements. Provides that these provisions shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

Section 14: If an individual applies for unemployment compensation benefits and is not a citizen or national of the United States, requires the Department of Workforce Development (DWD) to verify the status of the individual as a qualified alien through the Systematic Alien Verification for Entitlements program.

Section 15: Allows the DWD to file civil actions to obtain the reimbursement of amounts paid as unemployment insurance benefits from employers that knowingly employed unauthorized aliens. Prohibits the DWD from filing an action if: (1) the employer employed the unauthorized alien before July 1, 2011; or (2) the employer used the E-Verify program to verify the eligibility of the individual who is determined to be an unauthorized alien.

Section 16: Requires a state agency or political subdivision to use the E-Verify program to verify the work eligibility status of employees hired after June 30, 2011. Prohibits a state agency or political subdivision from entering into or renewing a public contract for services with a contractor unless: (1) the public contract contains provisions requiring a contractor to enroll in and verify the work eligibility status of newly hired employees through the E-Verify program; and (2) the contractor signs an affidavit affirming that the contractor does not knowingly employ unauthorized aliens. Prohibits a state agency or political subdivision from awarding a grant of more than $1,000 to a business entity unless the business entity: (1) signs a sworn affidavit and provides documentation that the business entity has enrolled in and is participating in the E-Verify program; and (2) signs an affidavit affirming the business entity does not knowingly employ unauthorized aliens. Allows a state agency or political subdivision to terminate a public contract for services if the contractor knowingly employs an unauthorized alien. Provides that if a state agency or political subdivision terminates a public contract for services, the contractor is liable to the state agency or political subdivision for actual damages. Requires a subcontractor who is providing services for work a contractor is performing under a public contract for services to certify to the contractor that the subcontractor does not knowingly employ or contract with unauthorized aliens and has enrolled and is participating in the E-Verify program.

Section 17: Prohibits individuals who are at least 18 years of age from commencing day labor without completing an attestation required under federal law. Requires a law enforcement officer or any other entity authorized to enforce the employment laws of Indiana that has probable cause to believe that an individual has not completed an attestation to submit a complaint in a form prescribed under federal regulations.

Section 18: Provides that a person who knowingly or intentionally offers, accepts, or records a consular identification as a valid form of identification for any purpose commits a Class C infraction. Establishes
higher penalties for second and third or subsequent offenses.

Section 19: Makes a cross reference in the provisions that list the statutes outside of IC 34 that confer immunity to the immunity granted in the bail language.

Section 20: Allows a law enforcement officer to arrest a person when the officer has: (1) a removal order issued for the person by an immigration court; (2) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or (3) probable cause to believe that the person has been indicted for or convicted of one or more aggravated felonies.

Section 21: Requires judicial officers in setting and accepting an amount of bail to consider that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law as relevant to risk of nonappearance.

Section 22: Provides that if bail is set for a defendant who is a foreign national who is unlawfully present in the United States under federal immigration law, the defendant may only be released from custody by posting a: (1) cash bond in an amount equal to the bail; (2) real estate bond in which the net equity in the real estate is at least two times the amount of the bail; or (3) surety bond in the full amount that is written by a licensed and appointed agent of an insurer. Provides that, if the defendant does not appear before the court as ordered because the defendant has been taken into custody or deported by a federal agency or arrested and incarcerated for another offense, a bond posted under this provision may not be declared forfeited by the court and the insurer that issued the bond is released from any liability regarding the defendant's failure to appear.

Section 23: Establishes the crime of false identity statement and makes the crime a Class A misdemeanor. Establishes a defense.

Section 24: Makes it a Class A misdemeanor for a person to knowingly or intentionally: (1) transport or move an alien; or (2) conceal, harbor or shield from detection an alien in any place; for the purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law. Makes it a Class D felony if a violation involved more than nine aliens. Establishes exceptions. Requires a law enforcement officer to impound a motor vehicle that is used to commit certain crimes.

Section 25: Urges the legislative council to: (1) assign certain immigration topics to an existing study committee; and (2) urge the study committee to consult with the lieutenant governor on the topics.