S.B. 81

1

ILLEGAL IMMIGRATION
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: John W. Hickman
5 House Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill deals with provisions related to the immigration status of individuals within
10 the state.
11 Highlighted Provisions:
12 This bill:
13 . requires a county sheriff to make a reasonable effort to determine the citizenship
14 status of a person confined to a county jail for a period of time and to verify the
15 immigration status of a confined foreign national, and makes it a rebuttable
16 presumption, for the purpose of determining the grant or issuance of a bond, that a
17 person verified by the sheriff's efforts as a foreign national not lawfully admitted
18 into the United States is at risk of flight;
19 . provides that the Alcoholic Beverage Control Commission may not grant a
20 restaurant liquor license or private club license to a person who is not lawfully
21 present in the United States;
22 . restricts the exemption from paying the nonresident portion of total tuition at a state
23 institution of higher education to students without lawful immigration status who
24 meet certain statutory prerequisites and register as an entering student at the
25 institution prior to May 1, 2010;
26 . provides that an individual who is not lawfully present in the United States is not
27 eligible on the basis of residence within the state for a higher education benefit, to

28 include scholarships, financial aid, and resident tuition, with one temporary exception;
29 . provides for the withholding of state income tax at the top rate from an independent
30 contractor who fails to provide documentation to the contracting entity that verifies
31 the independent contractor's employment authorization pursuant to the prohibition
32 against the use of unauthorized alien labor;
33 . provides for the creation and issuance of identification documents and requires that
34 those identification documents issued by public entities go only to United States
35 citizens, nationals, or legal permanent resident aliens with certain exceptions;
36 . provides for exceptions to the issuance of identification documents by public
37 entities based on valid documentation of certain approved or pending immigration
38 status and places time period restrictions on the length of validity of the documents;
39 . requires public employers to register with and use a Status Verification System to
40 verify the federal authorization status of a new employee;
41 . beginning July 1, 2009, provides that a public employer may not enter into a
42 contract for the physical performance of services within the state with a contractor
43 unless the contractor registers and participates in the Status Verification System to
44 verify the work eligibility status of the contractor's new employees;
45 . identifies as a discriminatory employment practice the discharging of a lawful
46 employee while retaining an unauthorized alien in the same job category;
47 . requires an agency or political subdivision of the state to verify the lawful presence
48 in the United States of an individual who has applied for a state or local public
49 benefit, as defined by federal law, or a federal public benefit that is administered by
50 the agency or the political subdivision and provides for exceptions;
51 . requires an applicant for a state or local public benefit to execute an affidavit
52 attesting to the applicant's lawful presence in the United States, and provides
53 penalties for making a false, fictitious, or fraudulent statement or representation in
54 the affidavit;
55 . provides, subject to the availability of funding, for the establishment of a Fraudulent
56 Documents Identification Unit by the attorney general for the primary purpose of
57 investigating, apprehending, and prosecuting individuals who participate in the sale
58 or distribution of fraudulent identification documents created and prepared for

59 individuals who are unlawfully residing within the state;
60 . requires the attorney general to negotiate a Memorandum of Understanding with the
61 United States Department of Justice or the United States Department of Homeland
62 Security for the enforcement of federal immigration and customs laws within the
63 state by state and local law enforcement personnel;
64 . prohibits a unit of local government from enacting an ordinance or policy that limits
65 or prohibits a law enforcement officer or government employee from
66 communicating or cooperating with federal officials regarding the immigration
67 status of a person within the state; and
68 . makes it a class A misdemeanor for a person to:
69 . transport in this state an alien, knowing that the alien is in the United States in
70 violation of federal law, in furtherance of the illegal presence in the United
71 States; or
72 . conceal, harbor, or shelter from detection an alien, in a place within this state,
73 knowing or in reckless disregard of the fact that the alien is in the United States
74 in violation of federal law.
75 Monies Appropriated in this Bill:
76 None
77 Other Special Clauses:
78 This bill coordinates with H.B. 63, Recodification of Title 63 State Affairs in General,
79 by providing technical renumbering.
80 Utah Code Sections Affected:
81 AMENDS:
82 32A-4-103, as last amended by Laws of Utah 2003, Chapter 314
83 32A-5-103, as last amended by Laws of Utah 2003, Chapter 314
84 53B-8-106, as enacted by Laws of Utah 2002, Chapter 230
85 ENACTS:
86 17-22-9.5, Utah Code Annotated 1953
87 53B-8-106.5, Utah Code Annotated 1953
88 59-10-409, Utah Code Annotated 1953
89 63-99a-101, Utah Code Annotated 1953

90 63-99a-102, Utah Code Annotated 1953
91 63-99a-103, Utah Code Annotated 1953
92 63-99a-104, Utah Code Annotated 1953
93 67-5-22.5, Utah Code Annotated 1953
94 67-5-26, Utah Code Annotated 1953
95 76-10-2701, Utah Code Annotated 1953
96
97 Be it enacted by the Legislature of the state of Utah:
98 Section 1. Section 17-22-9.5 is enacted to read:
99 17-22-9.5. Citizenship determination of incarcerated persons.
100 (1) The sheriff shall make a reasonable effort to determine the citizenship status of a
101 person charged with a felony or driving under the influence under Section 41-6a-502 when the
102 person is confined to the county jail for a period of time.
103 (2) If the confined person is a foreign national, the sheriff shall make a reasonable
104 effort to verify that the person:
105 (a) has been lawfully admitted into the United States; and
106 (b) the person's lawful status has not expired.
107 (3) (a) If the sheriff cannot verify the confined person's lawful status from documents
108 in the person's possession, the sheriff shall attempt to verify that status within 48 hours of the
109 person's confinement at the jail through contacting:
110 (i) the Law Enforcement Support Center of the United States Department of Homeland
111 Security; or
112 (ii) an office or agency designated for citizenship status verification by the United
113 States Department of Homeland Security.
114 (b) The sheriff shall notify the United States Department of Homeland Security of a
115 person whose lawful citizenship status cannot be verified under Subsection (2) or (3)(a).
116 (4) It is a rebuttable presumption for the purpose of determining the grant or issuance
117 of a bond that a person who is verified under this section as a foreign national not lawfully
118 admitted into the United States is at risk of flight.
119 Section 2. Section 32A-4-103 is amended to read:
120 32A-4-103. Qualifications.

121 (1) (a) The commission may not grant a restaurant liquor license to any person who has
122 been convicted of:
123 (i) a felony under [any] a federal or state law;
124 (ii) [any] a violation of [any] a federal or state law or local ordinance concerning the
125 sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic
126 beverages;
127 (iii) [any] a crime involving moral turpitude; or
128 (iv) on two or more occasions within the five years before the day on which the license
129 is granted, driving under the influence of alcohol, [any] a drug, or the combined influence of
130 alcohol and [any] a drug.
131 (b) In the case of a partnership, corporation, or limited liability company the
132 proscription under Subsection (1)(a) applies if any of the following has been convicted of [any]
133 an offense described in Subsection (1)(a):
134 (i) a partner;
135 (ii) a managing agent;
136 (iii) a manager;
137 (iv) an officer;
138 (v) a director;
139 (vi) a stockholder who holds at least 20% of the total issued and outstanding stock of
140 the applicant corporation; or
141 (vii) a member who owns at least 20% of the applicant limited liability company.
142 (c) The proscription under Subsection (1)(a) applies if [any] a person employed to act
143 in a supervisory or managerial capacity for a restaurant has been convicted of [any] an offense
144 described in Subsection (1)(a).
145 (2) The commission may immediately suspend or revoke a restaurant liquor license if
146 after the day on which the restaurant liquor license is granted, a person described in Subsection
147 (1)(a), (b), or (c):
148 (a) is found to have been convicted of [any] an offense described in Subsection (1)(a)
149 prior to the license being granted; or
150 (b) on or after the day on which the license is granted:
151 (i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or

152 (ii) (A) is convicted of driving under the influence of alcohol, [any] a drug, or the
153 combined influence of alcohol and [any] a drug; and
154 (B) was convicted of driving under the influence of alcohol, [any] a drug, or the
155 combined influence of alcohol and [any] a drug within five years before the day on which the
156 person is convicted of the offense described in Subsection (2)(b)(ii)(A).
157 (3) The director may take emergency action by immediately suspending the operation
158 of a restaurant liquor license according to the procedures and requirements of Title 63, Chapter
159 46b, Administrative Procedures Act, for the period during which the criminal matter is being
160 adjudicated if a person described in Subsection (1)(a), (b), or (c):
161 (a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii);
162 or
163 (b) (i) is arrested on a charge for the offense of driving under the influence of alcohol,
164 [any] a drug, or the combined influence of alcohol and [any] a drug; and
165 (ii) was convicted of driving under the influence of alcohol, [any] a drug, or the
166 combined influence of alcohol and [any] a drug within five years before the day on which the
167 person is arrested on a charge described in Subsection (3)(b)(i).
168 (4) (a) (i) The commission may not grant a restaurant liquor license to [any] a person
169 who has had any type of license, agency, or permit issued under this title revoked within the
170 last three years.
171 (ii) The commission may not grant a restaurant liquor license to an applicant that is a
172 partnership, corporation, or limited liability company if [any] a partner, managing agent,
173 manager, officer, director, stockholder who holds at least 20% of the total issued and
174 outstanding stock of the applicant corporation, or member who owns at least 20% of the
175 applicant limited liability company is or was:
176 (A) a partner or managing agent of [any] a partnership that had any type of license,
177 agency, or permit issued under this title revoked within the last three years;
178 (B) a managing agent, officer, director, or stockholder who holds or held at least 20%
179 of the total issued and outstanding stock of [any] a corporation that had any type of license,
180 agency, or permit issued under this title revoked within the last three years; or
181 (C) a manager or member who owns or owned at least 20% of [any] a limited liability
182 company that had any type of license, agency, or permit issued under this title revoked within

183 the last three years.
184 (b) An applicant that is a partnership, corporation, or limited liability company may not
185 be granted a restaurant liquor license if any of the following had any type of license, agency, or
186 permit issued under this title revoked while acting in that person's individual capacity within
187 the last three years:
188 (i) a partner or managing agent of the applicant partnership;
189 (ii) [any] a managing agent, officer, director, or stockholder who holds at least 20% of
190 the total issued and outstanding stock of the applicant corporation; or
191 (iii) a manager or member who owns at least 20% of the applicant limited liability
192 company.
193 (c) A person acting in an individual capacity may not be granted a restaurant liquor
194 license if that person was:
195 (i) a partner or managing agent of a partnership that had any type of license, agency, or
196 permit issued under this title revoked within the last three years;
197 (ii) a managing agent, officer, director, or stockholder who held at least 20% of the
198 total issued and outstanding stock of a corporation that had any type of license, agency, or
199 permit issued under this title revoked within the last three years; or
200 (iii) a manager or member of a limited liability company who owned at least 20% of
201 the limited liability company that had any type of license, agency, or permit issued under this
202 title revoked within the last three years.
203 (5) (a) A minor may not be granted a restaurant liquor license.
204 (b) The commission may not grant a restaurant liquor license to an applicant that is a
205 partnership, corporation, or limited liability company if any of the following is a minor:
206 (i) a partner or managing agent of the applicant partnership;
207 (ii) a managing agent, officer, director, or stockholder who holds at least 20% of the
208 total issued and outstanding stock of the applicant corporation; or
209 (iii) a manager or member who owns at least 20% of the applicant limited liability
210 company.
211 (6) If [any] a person to whom a license has been issued under this part no longer
212 possesses the qualifications required by this title for obtaining that license, the commission
213 may suspend or revoke that license.

214 (7) The commission may not grant a restaurant liquor license to an applicant who is not
215 lawfully present in the United States.
216 Section 3. Section 32A-5-103 is amended to read:
217 32A-5-103. Qualifications.
218 (1) (a) The commission may not grant a private club license to [any] a person who has
219 been convicted of:
220 (i) a felony under [any] a federal or state law;
221 (ii) [any] a violation of [any] a federal or state law or local ordinance concerning the
222 sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic
223 beverages;
224 (iii) [any] a crime involving moral turpitude; or
225 (iv) on two or more occasions within the five years before the day on which the license
226 is granted, driving under the influence of alcohol, [any] a drug, or the combined influence of
227 alcohol and [any] a drug.
228 (b) In the case of a partnership, corporation, or limited liability company, the
229 proscription under Subsection (1)(a) applies if any of the following has been convicted of [any]
230 an offense described in Subsection (1)(a):
231 (i) a partner;
232 (ii) a managing agent;
233 (iii) a manager;
234 (iv) an officer;
235 (v) a director;
236 (vi) a stockholder who holds at least 20% of the total issued and outstanding stock of
237 the applicant corporation; or
238 (vii) a member who owns at least 20% of the applicant limited liability company.
239 (c) The proscription under Subsection (1)(a) applies if [any] a person employed to act
240 in a supervisory or managerial capacity for a private club has been convicted of [any] an
241 offense described in Subsection (1)(a).
242 (2) The commission may immediately suspend or revoke a private club license if after
243 the day on which the private club license is granted, a person described in Subsection (1)(a),
244 (b), or (c):

245 (a) is found to have been convicted of [any] an offense described in Subsection (1)(a)
246 prior to the license being granted; or
247 (b) on or after the day on which the license is granted:
248 (i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
249 (ii) (A) is convicted of driving under the influence of alcohol, [any] a drug, or the
250 combined influence of alcohol and [any] a drug; and
251 (B) was convicted of driving under the influence of alcohol, [any] a drug, or the
252 combined influence of alcohol and [any] a drug within five years before the day on which the
253 person is convicted of the offense described in Subsection (2)(b)(ii)(A).
254 (3) The director may take emergency action by immediately suspending the operation
255 of a private club license according to the procedures and requirements of Title 63, Chapter 46b,
256 Administrative Procedures Act, for the period during which the criminal matter is being
257 adjudicated if a person described in Subsection (1)(a), (b), or (c):
258 (a) is arrested on a charge for [any] an offense described in Subsection (1)(a)(i), (ii), or
259 (iii); or
260 (b) (i) is arrested on a charge for the offense of driving under the influence of alcohol,
261 [any] a drug, or the combined influence of alcohol and [any] a drug; and
262 (ii) was convicted of driving under the influence of alcohol, [any] a drug, or the
263 combined influence of alcohol and [any] a drug within five years before the day on which the
264 person is arrested on a charge described in Subsection (3)(b)(i).
265 (4) (a) (i) The commission may not grant a private club license to [any] a person who
266 has had any type of license, agency, or permit issued under this title revoked within the last
267 three years.
268 (ii) The commission may not grant a private club license to [any] an applicant that is a
269 partnership, corporation, or limited liability company if [any] a partner, managing agent,
270 manager, officer, director, stockholder who holds at least 20% of the total issued and
271 outstanding stock of an applicant corporation, or member who owns at least 20% of an
272 applicant limited liability company is or was:
273 (A) a partner or managing agent of [any] a partnership that had any type of license,
274 agency, or permit issued under this title revoked within the last three years;
275 (B) a managing agent, officer, director, or a stockholder who holds or held at least 20%

276 of the total issued and outstanding stock of [any] a corporation that had any type of license,
277 agency, or permit issued under this title revoked within the last three years; or
278 (C) a manager or member who owns or owned at least 20% of [any] a limited liability
279 company that had any type of license, agency, or permit issued under this title revoked within
280 the last three years.
281 (b) An applicant that is a partnership, corporation, or limited liability company may not
282 be granted a private club license if any of the following had any type of license, agency, or
283 permit issued under this title revoked while acting in that person's individual capacity within
284 the last three years:
285 (i) [any] a partner or managing agent of the applicant partnership;
286 (ii) [any] a managing agent, officer, director, or stockholder who holds at least 20% of
287 the total issued and outstanding stock of the applicant corporation; or
288 (iii) [any] a manager or member who owned at least 20% of the applicant limited
289 liability company.
290 (c) A person acting in an individual capacity may not be granted a private club license
291 if that person was:
292 (i) a partner or managing agent of a partnership that had any type of license, agency, or
293 permit issued under this title revoked within the last three years;
294 (ii) a managing agent, officer, director, or stockholder who held at least 20% of the
295 total issued and outstanding stock of a corporation that had any type of license, agency, or
296 permit issued under this title revoked within the last three years; or
297 (iii) a manager or member of a limited liability company who owned at least 20% of
298 the limited liability company that had any type of license, agency, or permit issued under this
299 title revoked within the last three years.
300 (5) (a) A minor may not be granted a private club license.
301 (b) The commission may not grant a private club license to an applicant that is a
302 partnership, corporation, or limited liability company if any of the following is a minor:
303 (i) a partner or managing agent of the applicant partnership;
304 (ii) a managing agent, officer, director, or stockholder who holds at least 20% of the
305 total issued and outstanding stock of the applicant corporation; or
306 (iii) a manager or member who owns at least 20% of the applicant limited liability

307 company.
308 (6) If [any] a person or entity to whom a license has been issued under this chapter no
309 longer possesses the qualifications required by this title for obtaining that license, the
310 commission may suspend or revoke that license.
311 (7) The commission may not grant a private club license to an applicant who is not
312 lawfully present in the United States.
313 Section 4. Section 53B-8-106 is amended to read:
314 53B-8-106. Resident tuition -- Requirements -- Rules.
315 (1) If allowed under federal law, a student, other than a nonimmigrant alien within the
316 meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States
317 Code, shall be exempt from paying the nonresident portion of total tuition if the student:
318 (a) attended high school in this state for three or more years;
319 (b) graduated from a high school in this state or received the equivalent of a high
320 school diploma in this state; and
321 (c) registers as an entering student at an institution of higher education:
322 (i) not earlier than the fall of the 2002-03 academic year[.]; and
323 (ii) before May 1, 2010.
324 (2) In addition to the requirements under Subsection (1), a student without lawful
325 immigration status shall file an affidavit with the institution of higher education stating that the
326 student has filed an application to legalize his immigration status, or will file an application as
327 soon as [he] the student is eligible to do so.
328 (3) An institution of higher education shall continue to provide the exemption from
329 paying the nonresident portion of total tuition for a student who entered the institution before
330 May 1, 2010, through the time that the student remains admitted as a student at that institution
331 in a program of study leading to a degree or a certificate.
332 [(3)] (4) The State Board of Regents shall make rules for the implementation of this
333 section.
334 [(4)] (5) Nothing in this section limits the ability of institutions of higher education to
335 assess nonresident tuition on students who do not meet the requirements under this section.
336 Section 5. Section 53B-8-106.5 is enacted to read:
337 53B-8-106.5. Limitation on higher education benefits.

338 Except as otherwise provided in Section 53B-8-106 , an individual who is not lawfully
339 present in the United States is not eligible on the basis of residence within the state for a higher
340 education benefit, to include:
341 (1) scholarships;
342 (2) financial aid; and
343 (3) resident tuition.
344 Section 6. Section 59-10-409 is enacted to read:
345 59-10-409. Withholding of state income tax when lacking verification of lawful
346 immigration status -- Noncompliance.
347 (1) If an individual independent contractor, contracting for the physical performance of
348 services in this state, fails to provide to the contracting entity documentation to verify the
349 independent contractor's employment authorization pursuant to the prohibition against the use
350 of unauthorized alien labor through contract set forth in 8 U.S.C., Sec. 1324a (a)(4), the
351 contracting entity shall withhold state income tax at the top marginal income tax rate as
352 provided in Title 59, Chapter 10, Part 4, Withholding of Tax, as applied to compensation paid
353 to the individual for the performance of the services within this state which exceeds the
354 minimum amount of compensation the contracting entity is required to report as income to the
355 United States Internal Revenue Service pursuant to federal law.
356 (2) A contracting entity who fails to comply with the withholding requirements of this
357 section is liable for the taxes required to have been withheld unless exempt from federal
358 withholding with respect to the individual pursuant to Section 1441 of the United States
359 Internal Revenue Code.
360 (3) For purposes of this section, "individual" means a resident or nonresident
361 individual as defined in Section 59-10-103 .
362 Section 7. Section 63-99a-101 is enacted to read:
363 CHAPTER 99a. IDENTITY DOCUMENTS AND VERIFICATION
364 63-99a-101. Title.
365 This chapter is known as "Identity Documents and Verification."
366 Section 8. Section 63-99a-102 is enacted to read:
367 63-99a-102. Creation of identity documents -- Issuance to citizens, nationals, and
368 legal permanent resident aliens -- Exceptions.

369 (1) The following entities may create, publish, or otherwise manufacture an
370 identification document, identification card, or identification certificate and possess an
371 engraved plate or other device for the printing of an identification document:
372 (a) a business, company, corporation, service organization, or federal, state, or local
373 government agency for employee identification, which is designed to identify the bearer as an
374 employee;
375 (b) a business, company, corporation, or service organization for customer
376 identification, which is designed to identify the bearer as a customer or member;
377 (c) a federal, state, or local government agency for purposes authorized or required by
378 law or a legitimate purpose consistent with the duties of the agency, including such documents
379 as voter identification cards, driver licenses, identification cards, passports, birth certificates,
380 and Social Security cards;
381 (d) a public school or state or private educational institution to identify the bearer as an
382 administrator, faculty member, student, or employee;
383 (e) a professional organization or labor union to identify the bearer as a member of the
384 professional organization or labor union; and
385