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Court upholds Arizona county's use of unique new statute to prosecute illegal immigrants

By Rachel Alexander
web posted June 19, 2006

The federal government may not be doing much when it comes to illegal immigration, but Arizona's Maricopa County Attorney and Sheriff are. The top two criminal law enforcement officials in Arizona have teamed up to arrest and prosecute illegal immigrants crossing the border into Arizona using a new state human smuggling law, and the courts agree. Arizona is the first state in the nation to pass a law against human smuggling.

Following the legal advice of Maricopa County's tough on crime prosecutor Andrew Thomas, Maricopa County Sheriff Joe Arpaio began arresting illegal immigrants under the new law and referring them for prosecution. Since the enforcement began, 272 illegal immigrants have been arrested and charged. Twenty-three illegal immigrants and one coyote have pled guilty, and will serve jail-time before being deported. With a felony on their record, they will have a slim chance at ever entering the U.S. legally or obtaining U.S. citizenship.

Under Arizona's statutes, the crime of conspiracy automatically applies to felonies unless specifically exempted by statute. After thorough legally researching the issue, Maricopa County Attorney Andrew Thomas provided a legal opinion to Sheriff Arpaio confirming that illegal immigrants caught using the services of a coyote to sneak across the border could be arrested along with the coyotes for conspiracy to commit human smuggling.

The Mexican government tried to interfere with the prosecution. The Consul General of Mexico, Carlos Flores-Vizcarra, asked California lawyer Peter Schey to file legal motions on behalf of the criminal defendants. Schey's motions to dismiss the charges argued that conspiracy didn't apply to the human smuggling statute, and that the human smuggling statute should be struck down as unconstitutional, claiming it was an impermissible infringement on federal jurisdiction. Maricopa County Attorney Andrew Thomas said this was troubling, because it went beyond mere defense of a Mexican citizen in American courts, attempting to strike down Arizona's laws. Thomas wrote a letter to Secretary of State Condoleeza Rice requesting that the U.S. Government lodge a formal complaint with the Mexican government.

Judge Thomas O'Toole of Maricopa County Superior Court issued an opinion on June 9, 2006, dismissing defense arguments that federal law preempted the state law, and noting that the states are only preempted from making law where specifically prohibited in federal law. O'Toole cited the U.S. Supreme Court decision De Canas v. Bica (1976), which held that California law penalizing employers for hiring illegal immigrants was not preempted by the exclusive federal law to regulate immigration. The Supreme Court opinion stated, "[This court] has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised."

The federal government has not made any law or regulation preempting the states from passing laws regulating human smuggling. Although preemption is an excuse frequently referred to by politicians, it is a red herring used to avoid debate on the merits of enforcing laws against illegal immigration.

Judge O'Toole was equally dismissive of arguments that conspiracy doesn't apply to the crime of human smuggling. The defense argued that the legislature didn't intend to apply conspiracy law to the new statute. O'Toole said this wasn't true, and that the legislative history and plain language of the statute clearly supported application of the conspiracy law.

Sheriff Arpaio cheered the ruling, saying, "I just don't believe in turning them over to I.C.E. for a free air-conditioned ride back to Mexico. They're getting a free ride to the county jail to be prosecuted by the County Attorney." He also criticized municipal law enforcement who refuse to enforce the conspiracy law against illegal immigrants because of the additional cost, noting that counties pay for felony arrests, not cities.

After the court's opinion was released, Maricopa County Attorney Andrew Thomas commented, "I guess I would view the scoreboard as Arizona taxpayers – 1, Mexican Government - nothing. It is an important and historic day in fighting against illegal immigration." Sheriff Arpaio added, "Let them appeal, we're still going to lock them up."

Defense attorneys and the organization Center for Human Rights and Constitutional Law intend to appeal the decision, claiming that it will cost taxpayers additional money to defend the county from lawsuits. Maricopa County Attorney Andrew Thomas responded that protecting public safety is not a decision that should be determined based on whether it costs money, and is prepared to defend the law all the way to the U.S. Supreme Court.

Rachel Alexander is a Deputy County Attorney with the Maricopa County Attorney's Office. She is also the founder of the wildly popular Intellectual Conservative.

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