A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING article 6 to chapter 9, title 16 SO AS TO PROVIDE THAT ANY PERSON ARRESTED FOR VIOLATING A CRIMINAL LAW OF THIS STATE WHO IS SUBSEQUENTLY DETERMINED TO BE UNLAWFULLY PRESENT IN THE UNITED STATES IS GUILTY OF A FELONY, TO PROVIDE PENALTIES FOR VIOLATIONS, TO ALLOW FOR DEPORTATION IN LIEU OF IMPRISONMENT, AND TO REQUIRE THE COLLECTION AND MAINTENANCE OF IDENTIFYING INFORMATION OF PERSONS ARRESTED PURSUANT TO THIS ARTICLE.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 9, Title 16 of the S.C. Code is amended by adding:

 

Article 6

 

Offenses Committed by Undocumented Immigrants

 

    Section 16-9-500.  (A) As used in this section, "alien" means any person not a citizen or national of the United States.

    (B) Any person who is apprehended and arrested for violating a criminal law of this State, and after determining the citizenship status the person is found to be unlawfully present in the United States, shall be guilty of a felony and, upon conviction, sentenced to imprisonment for a term of not less than five years.

    (C) In lieu of the sentence of imprisonment, the court shall have the authority to dismiss the criminal prosecution and issue a written order discharging the person and requiring said individual to return to his country of origin if the person:

       (1) agrees to the written order;

       (2) has not previously been convicted of a violent crime, as defined in Section 16-1-60, in this State or another state; and

       (3) is not charged with another felony offense.

    Upon issuance of the written order, the court shall direct the law enforcement agency having custody of the person to remand the person to the custody of the Department of Corrections with instructions to return the person to his country of origin.

    (D) Once the Department of Corrections receives custody of the person, the department shall notify the United States Customs and Border Protection of the Department of Homeland Security within seven days to arrange transportation for the repatriation of said person back to his country of origin.

    (E) Any alien who has been denied admission, excluded, deported, or removed, or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter enters, attempts to enter, or is at any time found in South Carolina shall, upon conviction, be guilty of a felony and punished in accordance with the provisions of subsection (B), unless:

       (1) prior to reembarkation of the alien at a place outside the United States or application by the alien for admission from a foreign contiguous territory, the United States Attorney General has expressly consented to such alien's reapplying for admission; or

       (2) with respect to an alien previously denied admission and removed, such alien established that he was not required to obtain such advance consent under this section or any prior statute.

    (F) The arresting law enforcement agency shall collect all identifying information of the person including all fingerprints and any other applicable photographic and biometric data to identify the person. Once obtained, the law enforcement agency shall cross-reference the collected information with:

       (1) all relevant local, state, and federal criminal databases; and

       (2) federal lists or classifications used to identify a person as a threat or potential threat to national security.

    The South Carolina Law Enforcement Division shall have the authority to collect and maintain the identifying information collected by law enforcement agencies pursuant to the provisions of this subsection.

    (G) It shall be an affirmative defense to prosecution under the provisions of subsection (B) that:

       (1) the federal government has granted the defendant:

           (a) lawful presence in the United States; or

           (b) asylum under Section 1158 of Title 8 of the United States Code; or

       (2) the defendant was approved for benefits under the federal Deferred Action for Childhood Arrivals program between June 15, 2012, and July 16, 2021.

    (H) Any person convicted of an offense pursuant to the provisions of this section shall not be eligible for probation or delayed sentencing.

    (I) The legislature finds that the presence of persons who are unauthorized to be present within the State of South Carolina is a matter of statewide concern. Therefore, the legislature hereby occupies and preempts the entire field of legislation in this State regarding the presence of persons who have entered and remained in this State without first having obtained the legal authorization to do so. Any municipality or other political subdivision of this State shall be prohibited from adopting any ordinance, regulation, resolution, rule, or policy that conflicts with the provisions of this article.

 

SECTION 2.  This act takes effect upon approval by the Governor.

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