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Nevada is told federal role preempts effort to fine employers

By Timothy Pratt
lasvegassun.com

An almost 6-month-old state law that calls for fining businesses employing illegal immigrants can’t be enforced, an official said Friday.

The reason: The state attorney general’s office says immigration is an issue for the federal government, not states. The law, AB 383, mostly focuses on combatting the trafficking of immigrants, but includes a provision for the Taxation Department to fine employers whom the federal government has proved were knowingly hiring undocumented workers.

The law took effect Oct. 1. Dino DiCianno, executive director of the Taxation Department, wrote the state attorney general Sept. 6, asking whether federal law preempted the provision. On March 3, Senior Deputy Attorney General Karen Dickerson replied that federal immigration law “expressly preempts state and local laws which impose criminal or civil sanctions on employers who hire illegal immigrants, except through licensing and similar laws.”

The result: “The letter of the law (AB 383) as written cannot be carried out,” DiCianno said.

“I don’t know where this leaves us now,” he added.

Peter Ashman, a local immigration attorney and former chairman of the American Immigration Lawyers Association, Nevada chapter, called the attorney general’s opinion “the right decision.”

Enforcing immigration laws should be left to federal immigration officials, he said, adding that the measure, a first for Nevada, “reflects the frustration of state and local governments nationwide ... as they’re trying to fill a gap.”

The provision’s story mirrors those of thousands of ordinances and laws on immigration nationwide: Constituents voice concerns about immigration and lawmakers move legislation forward with relatively little opposition, only to have an attorney general or outside lawsuits strike down the laws.

According to the National Conference of State Legislatures, 1,562 state bills on immigration were introduced in 2007 and 240 became law. Laws in Pennsylvania and Oklahoma have faced high-profile legal challenges.

Arizona is a notable exception. Its law allowing the state to take away the business licenses of employers who knowingly hire undocumented workers recently survived a challenge in federal court.

David Thronson, a founder of the immigration law clinic at UNLV’s Boyd School of Law, said, “There is great political will to pass these bills regardless of whether they’ll take effect.” His students helped draft the part of AB 383 addressing immigrant trafficking.

“Whether they’re enforceable or not, these laws speak to issues that motivate voters,” Thronson said.

The bill’s sponsor, Assemblywoman Marilyn Kirkpatrick, D-North Las Vegas, said AB 383 was “very important” to her and her constituents. She pointed to another provision that ordered the Business and Industry Department to post a link on its Web site to E-Verify, the federal government’s tool for verifying the Social Security numbers of workers.

“Our philosophy was there’s got to be tools to verify Social Security numbers, and there’s got to be ramifications,” she said.

Kirkpatrick said she wouldn’t comment further until she saw the attorney general’s opinion.

For now, the ramifications or consequences of hiring illegal immigrants will be left to the federal government.

DiCianno said he would still forward any complaints about undocumented workers to the state attorney general. He intends to speak with the Legislative Counsel Bureau to determine what the next steps will be.

“Until I have that conversation, I’m not going to move forward. We need to do what’s legally defensible and appropriate,” he said.

Assemblyman Moises Denis, D-Las Vegas, one of three Hispanics in the Legislature, said he supported the bill, which passed unanimously in the House and Senate, because he thought the “provisions for trafficking were useful.” He said he wasn’t sure at the time whether the provision aimed at employers would work and he intends to look more closely at such provisions in the future.

“In any case,” Denis added, “I have thought all along that the true solution to the problem lies in comprehensive immigration reform by the federal government.”

Nevada Contact Info

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