Using Criminal Trespass Laws To Stop Illegal Immigration From Mexico |
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Cities across the country are desperately trying to block the flow of illegal immigrants from Mexico into their towns by utilizing criminal trespass laws. Does the use of these local criminal laws for trespassing circumvent Congress' constitutionally mandated right to enforce immigration policies, or is it legally acceptable for the cities to prevent illegal Mexican immigrants from moving into their communities? Recent cases in New Hampshire shed a revealing light on this legal question.
Jaffrey, New Hampshire On July 12, 2005 in Jaffrey, New Hampshire, a police officer questioned a Mr. Jorge Mora Ramírez whom had stopped on the side of the road in their town to use his cell phone. Mr. Ramirez admitted to the police officer that he was an illegal immigrant from Mexico, so the officer contacted federal immigration officials for assistance. The federal officials informed the officer that they did not have available resources to assist in the matter, so the police officer arrested Mr. Ramirez as violating criminal trespassing laws. The police chief of Jaffrey explained, "I wanted the federal government to understand that I was going to take some type of action. If I can discourage illegal aliens from coming to or passing through my community, then I think I've succeeded." Prior to this arrest for criminal trespass in Jaffrey, the nearby town of Hudson had recently arrested ten illegal Mexican immigrants for criminal trespass as well. The activity in New Hampshire has led to police chiefs in other states such as California, Florida and Georgia to call the N. H. police chiefs for more information, as they also hope to follow their practice if it is successful in the courts. The ACLU and other civil liberty groups within the United States and Mexico loudly voiced their opposition to the case against the illegal immigrant in Jaffrey, arguing that immigration enforcement was the federal government's job and that the New Hampshire criminal trespassing statute was intended to apply to those intruding on private property, not to illegal immigrants. According to the defense attorney for Mr. Ramirex, "What the state is attempting to do here is to step into the federal government's shoes and determine whether a person is licensed or able to remain in the United States." The local prosecutor in the criminal trespassing case argued that they had a right to cite illegal immigrants in their jurisdiction as a matter of the state's interest in security of its citizens. If the state won it's case against Mr. Ramirez for criminally trespassing by being in their city illegally, the maximum fine was only $1,000, with no potential jail time. New Hampshire's criminal trespassing law states that the defendant is guilty if knowing he is not licensed or privileged to do so, he enters or remains in any place.
The State of New Hampshire v. Barros-Batistele On August 12, 2005, the Nashau district court in N.H. rendered its decision on eight illegal aliens from Mexico that had been charged with criminal trespass in the towns of New Ipswich and Hudson. In an attempt to block the flow of illegal immigration from Mexico, the local police department had arrested the eight defendants for knowingly entering the United States, and their towns, without license or privilege to do so. The lower court had dismissed the initial charges on the basis of the Supremacy Clause. Applying the Supremacy Clause, U.S. Constitution Article 1, §8 preempts state action to regulate immigration. The court sought to determine if state action (criminal trespassing charges) is preempted by federal laws under the test of constitutionality that was set forth by the U.S. Supreme Court in De Canas v. Bica. Under De Canas v. Bica, the court asked: (1) whether the federal law explicitly preempts state regulation in the area; (2) whether state law infringes on an area where Congress intended federal law to have complete jurisdiction absent specific preemption; (3) whether the state law conflicts with the federal law. Under the first criteria, the court found that the state's application of the criminal trespass laws were not unconstitutional since the Immigration and naturalization Act does not prevent the state from being involved in the handling of illegal immigration. Furthermore, prior decisions from the U.S. Supreme Court have allowed state laws to apply in the hiring of illegal aliens for employment. Under the second criteria, the court determined that the state's actions were unconstitutional because the federal laws occupied the field. Federal laws on illegal immigration offenses, sanction and penalties are pervasive, which allows virtually no room for state laws to add to them. Under the third and final criteria for determining if the state's actions are preempted by federal legislation, the court determined that the New Hampshire law of criminal trespass conflicts with the federal statutory scheme. The court then dismissed the trespassing charges against the illegal Mexicans and ordered that the application of the state's criminal trespassing laws in the case were unconstitutional.
Conclusion There is no doubt that illegal immigration, primarily from Mexico, is harming the United States. many towns across the country have become "safe havens" for those that choose to enter the country illegally, but it appears that our courts are not willing to allow the states to take care of the problem through criminal trespassing laws, even if the Border Patrol and other federal agencies are unwilling or unable to deal with the immigration problems.
This report was filed under the Criminal Law section of Legal News on May 13, 2008.
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