Law on the Edge The year 2006 was to be the year of true immigration reform. Employer sanctions, the , massive immigrant-rights marches and rallies—these all entered the lexicon and consciousness last year. Given all that, immigration law change was said to be near-certain. Near-certain is as close as it got. As 2007 begins, the same issues will arise and may lead to legislation. Until then, we present articles on three aspects of the topic. Send your own thoughts on the state of immigration law to [email protected].

Alien Smuggling: Federal and State Refugees in , by J. James An Illegal Immigrant’s Journey, 29 Responses, by Colleen DiSanto 38Christian & Kyrsten Sinema 44 by Robert J. McWhirter BY COLLEEN DISANTO

Alien Smuggling Along the Arizona–Mexico Border Federal and State Responses

As long as nations have competing bills that have passed the House made in Arizona.3 attempted to regulate entry through their and Senate illustrate the broad disagree- In response to the flow of illegal entrants borders, there have been individuals who ment over the most effective methods of into the through the wish to evade such regulations. Not surpris- addressing alien smuggling. Department of Arizona–Mexico border, in August 2005 ingly, an underground network developed Homeland Security (DHS) law enforce- Governor Janet Napolitano declared that a in which transportation and assistance is ment agencies continue their efforts to “state of emergency” existed, which made offered for illicit financial gain, a network address this growing problem through $1.5 million in state funds available to bor- commonly referred to as “alien smuggling” focused strategies, with varying degrees of der counties, particularly for law enforce- or “human smuggling.” success. ment. This was just one of several state The volume and sophistication of Of the border states that have been measures aimed at addressing human smug- human smuggling, especially into the affected by alien smuggling, Arizona has gling. United States, has increased dramatically in been a focal point for implementing and In 2005, in addition to other immigra- recent years. The U.S. Government developing a national strategy by tion-related legislation, Arizona enacted Accountability Office reported to Congress Immigration and Customs Enforcement new criminal laws specifically to target in 2005, “Estimates by the United Nations (ICE) and U.S. Customs and Border human smuggling. As Arizona attempts to and the federal law enforcement and intelli- Protection (CBP), two of the DHS agencies control alien smuggling on its borders, gence communities indicate that people tasked with securing the border and enforc- other states are closely monitoring its smuggling is a huge and highly profitable ing U.S. immigration laws. The controver- enforcement efforts. Like other immigra- business worldwide, involving billions of sial deployment of U.S. National Guard tion-related Arizona legislative initiatives, its dollars annually, and the United States is a troops to the Arizona–Mexico border is one methods to address human smuggling will major destination country.” 1 of the most recent attempts by the federal likely influence other states. These “anti- The difficult and sometimes deadly deci- government to gain control over alien ” laws are being tested in the courts sion to seek illegal entry into the United smuggling. for the first time, and the resolution of argu- States is almost always motivated by higher- Border states, frustrated with relying ments over the application of these laws and paying jobs or reunification with family upon the federal response, are taking action whether they should be amended will have members. But fears that terrorists could at the state level, including legislating in an a significant impact on border enforcement enter the country through the same alien area that has traditionally been relegated to at the state and federal levels. smuggling channels have helped to drive the federal government. Arizona has Typical of the polarizing debate over the debate over border security. received national attention on this issue as a immigration, personal views and experi- Although different agencies within the result of the exponential increase in the ences often inform one’s immediate federal government bear responsibility and number of individuals attempting to cross response to a deceptively complex problem are expected to effectively control the its border with Mexico without proper such as alien smuggling. It could easily be admission of aliens into the United States, inspection or admission into the United characterized as an issue primarily involving illegal immigration, and the alien smuggling States. As more populated border areas of human rights, law enforcement, economic that accompanies it, has continued virtually the country have became more uniformly reality or national security. The problem of unabated. Out of an estimated 7.2 million regulated, Arizona has become the border alien smuggling is not easily categorized, unauthorized workers—almost five percent crossing destination of the U.S. labor force—2.5 million of them of choice for the illicit arrived between 2000 and 2005.2 The human smuggling Colleen DiSanto is a Member of the Scottsdale law firm of recent, and often divisive, national debate trade, and of the 1.2 DiSanto & DiSanto, PLC. Her practice focuses on business, investor over how to effectively address this issue has million illegal immi- and employment visas and family-based immigration issues. She brought terms such as alien smuggling and grants apprehended in is the Chair of the Immigration Section of the State Bar and a “coyotes”—for-profit human smugglers— Fiscal Year 2005 by graduate of Villanova University School of Law. She can be reached into the national vocabulary. CBP, more than half at [email protected]. The vastly different provisions in the the crossings were

www.myazbar.org JANUARY 2007 ARIZONA ATTORNEY 29 and the lack of an effective operations to address the human smuggling It incorporates the anti-smuggling methods response or satisfactory problem. ICE conducted a financial analysis of the ABC Initiative and focuses on work- solution reflects that reality. during a six-month period in early 2003 site monitoring and document fraud. ICE that revealed more than $160 million was officials have reported to Congress that Human Smuggling Versus sent through Phoenix money-transmitting worksite enforcement will be a key compo- Human Trafficking businesses, much of which was likely nent of its continued enforcement efforts as Alien smuggling, also referred to as human intended for payment of smuggling fees.6 “part of a comprehensive layered approach smuggling, involves the procurement of Following the creation of the DHS in that focuses on how illegal aliens get to our illegal entry into a country for financial or March 2003, “Operation ICE Storm” was country, the ways in which they obtain other material benefit. The Arizona and fed- initiated, which focused on combating alien identity documents allowing them to eral statutes criminalizing alien smuggling smuggling along the Arizona focus on any act associated with transporta- border and within the state by tion of aliens into the United States without coordinating with federal, state lawful inspection or admission.4 “Human and local law enforcement trafficking” is a distinct offense involving agencies. DHS has claimed it the exploitation of an alien who is being served “as a strategic model for transported by force, coercion or deception anti-smuggling operations in and for purposes of forced labor or prosti- other parts of the nation” and In some cases, tution.5 for more recent federal DHS, through ICE, has made combat- enforcement efforts.7 ICE the relationship ing human trafficking rings a major focus in Storm focused on financial its enforcement efforts, which have led to a investigations to target and between the steep increase in arrests and convictions. seize the assets of human Congress has passed several laws specifically smuggling rings. It resulted in to address trafficking issues, including the the seizure of more than $7.4 smuggled alien Trafficking Victims Protection million dollars and the prose- Reauthorization Act, pursuant to which the cution of 343 defendants.8 and coyote Bush Administration authorized more than DHS subsequently $200 million to combat human trafficking. announced the first phase of its changes, and Whether human smuggling or human Arizona Border Control trafficking has taken place is sometimes dif- (ABC) Initiative in March ficult to ascertain. In a typical “smuggling” 2004, which also involved smuggling evolves situation, there is a financial agreement coordination between federal between an alien and a smuggler, often agencies, such as ICE, CBP, into a human referred to as a “coyote,” that transporta- and the Transportation tion will be provided into the United States. Security Administration (TSA), trafficking The smuggled individual consents to being and state and local officials. An transported, and the relationship with the additional 200 CBP officers coyote ends once the transportation is com- were deployed to the Arizona offense. plete. border along with additional In some cases, during the course of surveillance resources, which transportation, the relationship between the DHS stated resulted in smuggled alien and coyote changes, and 384,954 apprehensions during smuggling evolves into a human trafficking Fiscal Year 2004, as opposed to offense. There are unfortunate incidents in 270,585 in FY2003.9 which smuggled aliens are held against their Although the exact number of migrant become employed, and the employers who will at a “drop house” upon their arrival in deaths along the Arizona border is often knowingly hire them.”10 ICE also cites the United States and forced to perform disputed, DHS stated it had reduced the worksite enforcement as a means to combat labor while money is extorted from family number by 19 percent during 2004. The alien smuggling, such as the April 19, 2006, members abroad. In those cases, the smug- ABC Initiative has been renewed each year, raids on IFCO Systems worksites in eight gled alien becomes the victim of human with additional increases in the number of states, which resulted in the arrest of 1,187 trafficking. CBP agents in Arizona and along its border, illegal workers.11 as well as helicopters and unmanned aerial When the SBI was announced, DHS Federal Initiatives To Combat vehicles. DHS has claimed significant dis- stated it was ending the “catch and release” Alien Smuggling ruption to alien smuggling rings. enforcement program by “streamlining” Arizona, and its border with Mexico, has DHS announced its nationwide Secure the removal process for all illegal aliens been the focus of several ICE and CBP Border Initiative (SBI) in November 2005. apprehended in the United States. These

30 ARIZONA ATTORNEY JANUARY 2007 www.myazbar.org expedited removal procedures raise con- Current Application of Federal ment of U.S. National Guard troops to the cerns about providing due process while Anti-Alien Smuggling Laws and U.S.–Mexico border, including Arizona’s quickly removing individuals from the Calls for Change border, has continued the nationwide United States. They will likely be the sub- Section 274 of the Immigration and debate over the best way to address alien ject of court challenges. Nationality Act, the federal statute used to smuggling. The various enforcement pro- As part of the Intelligence Reform and prosecute alien smugglers, prohibits know- grams implemented by DHS must some- Terrorism Prevention Act (IRTPA) passed ingly or recklessly bringing in, transporting how be reconciled with the President’s by Congress in 2004, the Human or harboring certain aliens.13 Under this statement that, “We must remember that Smuggling and Trafficking Center (HSTC) statute, a conviction could result in a maxi- the vast majority of illegal immigrants are was established as an “Interagency intelli- mum penalty of 10 years’ imprisonment per decent people who work hard, support their alien smuggled. families, practice their faith, and lead If the violation responsible lives.” involves serious The deployment of National Guard bodily injury or troops to the border has had an immediate placing life in impact on the number of individuals jeopardy, detained at the border. CBP reported that Section 274 apprehensions along the U.S.–Mexico bor- provides for der decreased by 21 percent, to 26,994, in additional the first 10 days of June, compared with penalties. 34,077 for the same period in 2005, and a There have 23 percent decrease occurred along the been many Arizona border.15 This reduced figure was high-profile reported even though fewer than 100 prosecutions of National Guard troops had actually been alien smuggling deployed. rings by federal Alien smugglers have reportedly law enforcement increased their fees for travel into the officials. For United States from approximately $2,000 example, in May to as high as $4,000.16 Whether the combi- 2006, the exec- nation of high transport fees and general utives of a bus fears regarding encounters with U.S. troops company that will continue to discourage border crossers transported an remains to be seen. It is theorized that alien estimated smugglers might decide to use more diffi- 40,000 illegal cult or dangerous routes to avoid detection, aliens from which could add to the more than 1,900 Tucson to Los deaths that have occurred on the Angeles pled U.S.–Mexico Border since CBP began its guilty to federal tally in October 1998.17 human smug- President Bush’s deployment of gling charges. National Guard troops was only part of his Since FY call for comprehensive immigration reform. 1999, federal Such reform would necessarily have to prosecutors address alien smuggling. have convicted gence/law enforcement/diplomacy fusion more than 2,000 smugglers annually under Pending Immigration Legislation center and information clearinghouse com- Section 274.14 The disparity between the in Congress and Alien Smuggling posed of representatives from the number of prosecutions under the federal In 2006, immigration reform bills passed Departments of State, Justice, and statute and the volume of alien smuggling both the House and Senate. However, the Homeland Security and the Intelligence may be attributed in part to a lack of disparity between them was so great, there Community.”12 The HSTC is a specific resources. Federal prosecutors have focused were realistic concerns that no action would example of the federal response to human their resources on serious smuggling offens- be taken. That, of course, turned out to be smuggling at the international level, because es leading to violence or bodily harm. the case, when the session ended with no its duties include maintaining partnerships The lack of prosecutorial deterrence has significant immigration legislation passed. with foreign governments and law enforce- led to efforts to deter smuggling at the bor- Despite that, it is worth noting the details of ment agencies to share intelligence concern- der itself. President Bush’s May 15, 2006, the bills. They exemplify much of the ongo- ing smuggling and human trafficking. primetime address and subsequent deploy- ing debate about immigration, and the www.myazbar.org JANUARY 2007 ARIZONA ATTORNEY 31 same issues—and similar years. However, bipartisan compromises on of the financial burden placed upon Yuma, bills—are likely to return in such a divisive issue will be difficult to Pima, Santa Cruz and Cochise counties. the coming session. secure, and some aspects of comprehensive Public frustration over the ease by which The House Bill, HR 4437, reform would likely prove unpopular with a illegal immigrants enter through the was an “enforcement-only” bill, which legislator’s constituents. The political liabil- Arizona border has given rise to groups included a provision that all illegal aliens ities of making a strong push for compre- such as the Minuteman Project, which has currently in the United States, approximate- hensive immigration reform may prove to received national attention for its private ly 11.5 million to 12 million people,18 could outweigh the recognized need for it. An efforts to patrol the Arizona border. The be charged with an . alternative may be the passage of piecemeal Arizona legislature responded by proposing Furthermore, it greatly expanded the defini- legislation aimed at strengthening border a number of immigration enforcement bills, tion of felony “alien smuggling” to include security and increasing the number and some of which were vetoed by the governor. knowingly giving assistance to In a highly charged political an illegal alien so he or she may climate, this has led to accu- remain or attempt to remain in More than 200 individuals smuggled sations and acrimonious the United States. This broad debate over what measures definition would criminalize through the Arizona border who appeared in should be taken on an issue currently lawful conduct by affecting an estimated social services organizations, Maricopa County have been charged with 400,000 to 450,000 illegal refugee agencies, churches and violating the anti-smuggling statute. immigrants in the state.22 immigration attorneys. An ille- gal immigrant would be unable Arizona “Anti-Coyote” to even consult with an attor- Statute ney without the attorney facing potential availability of certain types of visas. On August 12, 2005, Arizona enacted a penalties as an alien smuggler, and family Even if Congress acts in the next legisla- state law, A.R.S. § 13-2319, which makes it members or charitable workers could face tive session, it is an open question whether a crime to intentionally engage in the smug- felony charges for assisting undocumented Congress would preempt the states’ ability gling of human beings for profit or com- immigrants. to enact their own laws criminalizing alien mercial purpose. The statute defines “smug- The Senate’s immigration bill, S.2611, smuggling and other immigration-related gling of human beings” as “the transporta- proposed by Sen. John McCain and Sen. offenses. Courts have upheld the ability of tion or procurement of transportation by a Edward Kennedy, addressed alien smug- states to enact laws that do not “burden or person or an entity that knows or has reason gling by continuing to support cooperative conflict” with federal laws.20 Arizona, for to know that the person or persons trans- efforts and operations similar to the ABC example, has taken such measures in ported or to be transported are not United Initiative and SBI. ICE, CBP and federal, response to what has been deemed an States citizens, permanent resident aliens or state, local and tribal authorities would be “emergency” along its border. persons otherwise lawfully in this state.”23 A required to improve coordination efforts to person who engages in the smuggling of oppose human smuggling. It would also Arizona’s Response to Alien aliens—a “coyote”—is guilty of a Class 4 continue to make visas available to the vic- Smuggling felony. tims of human trafficking and other crimes Although DHS has reported improvements In response to the passage of this legisla- who assist in criminal prosecutions. It would in federal enforcement along the tion, Arizona’s Attorney General formed a not criminalize illegal aliens currently in the Arizona–Mexico border, Arizona continues Border Trafficking Team, focused on the United States and provide a means for many to have the highest rate of illegal immigra- investigation and prosecution of human of them, depending upon their length of tion in the country, and the increased smuggling operations and seizure of their residence in the United States, to eventually detention of illegal aliens comes at great assets, which has filed criminal charges earn lawful residence and citizenship. costs to the state. against 58 coyotes as of October 2006.24 Shortly before the mid-term elections, Since October 1, 2005, CBP has report- The Attorney General’s Office has obtained Congress did agree to pass the Secure Fence ed an average of 1,600 arrests a day in the court orders to seize more than $17 million Act, which requires the building of 700 Yuma and Tucson sectors of the Arizona that was suspected to be intended for miles of fence along the 1,951 mile border. In 2005, Arizona’s four border human smuggling organizations.25 Western U.S.–Mexico border. The law has strained counties asked the federal government for Union has filed suit against the Attorney U.S.–Mexico relations, and the incoming $23.2 million to cover the cost of jailing General’s Office over the seizure of wire chair of the House Homeland Security thousands of illegal immigrants, but they transfer funds, although its request for a Committee has suggested he will “re-visit” were only reimbursed for $731,000.21 temporary restraining order to halt the pro- the issue in the next session.19 Shortfalls such as these led Governor gram was rejected.26 A separate class action Immigration reform has been identified Napolitano to declare that a state of emer- lawsuit was filed on October 18, 2006, by as one area in which the newly elected gency has existed along the border since several individuals who transferred money Congress and President Bush may be able to August 2005, and $1.5 million in state via Western Union into Arizona.27 The reach some compromise over the next two funds are being used to relieve a small part Attorney General’s Office has stated it has —continued on p. 37

32 ARIZONA ATTORNEY JANUARY 2007 www.myazbar.org —continued from p. 32 procedures for individuals The Maricopa County Attorney’s Office The consequences of failing to clarify to recover money that was reports a 90 percent conviction rate for the anti-smuggling law on this point are part of a legitimate transfer, defendants charged under these laws, and far-reaching. A conviction under the statute but opponents have criticized 161 individuals have been convicted of may bar the alien from obtaining lawful sta- the program as discriminatory. felonies under A.R.S. §§ 13-2319, 13- tus in the U.S. at any point in the future, A.R.S. § 13-2319 also has been the sub- 1003 and 13-1001 as of November 1, leading to family unification and undocu- ject of controversy concerning its applica- 2006.31 Though appeals are likely to chal- mented immigration concerns. If Arizona tion to those aliens who agreed to be smug- lenge the application of these laws, Arizona legislators consider the absence of statutory gled into the United States. stands to prosecute virtually any illegal language specifically excluding the conspir- The Maricopa County Attorney’s Office entrant who received the assistance of acy statute to be a regrettable oversight, it interpreted the new law as creating liability another individual with the intent to would be inexcusable for them to fail to for such individuals under Arizona’s con- “smuggle themselves.” Other counties in take action. spiracy statute, A.R.S. § 13-1003. On June Arizona may start to follow the lead of the It remains to be seen whether Arizona’s 9, 2006, this interpretation was upheld by Maricopa County Sheriff’s Office and “anti-coyote” statute will be an effective the Maricopa County Superior Court after County Attorney’s Office in arresting and deterrent to alien smuggling or whether its the defendants arrested under the statute prosecuting illegal immigrants under this application will have political or societal moved for dismissal under various grounds. statutory interpretation. consequences. Alien smuggling organiza- The court found jurisdiction and venue This controversial application of A.R.S. tions have proved to be resilient at resisting were proper in Maricopa County because § 13-2319 may be broader than intended both federal and state efforts to prevent overt acts in furtherance of smuggling by the legislature or by some of the bill’s them from operating along Arizona’s bor- occurred there. The court found the defen- sponsors. However, if the application of the der with Mexico. Whether or not state and dants “may be prosecuted for conspiracy to conspiracy statute was an unintended con- federal enforcement efforts are able to stem smuggling themselves” if it is proved they sequence, the responsibility to address the the tide, Arizona will be forced to deal with provided themselves as “human cargo” and problem and amend A.R.S. § 13-2319 falls the consequences of alien smuggling for 28 AZ agreed to be transported as illegal aliens. to the legislature. years to come. AT Despite testimony from one of the bill’s sponsors that A.R.S. § 13-2319 was not intended to be applied to the aliens who were being smuggled, such exclusionary endnotes language was not included in the statute and the legislature is presumed to have 1. GAO-05-892T, p. 4. Crossings, June 12, 2006, at Press Release, Oct. 18, known and intended the conspiracy statute 2. Pew Hispanic Center, Fact 1. 2006, “Terry Goddard Sheet (April 13, 2006), at 1. 16. Associated Press, Mexico’s Vows to Continue would apply to a violation of A.R.S. § 13- 3. CBP Border Patrol Migrant Smugglers Hike Human Smuggling 2319. Overview (Jan. 11, 2006). Rates, June 14, 2006, at 1. Prosecutions.” More than 200 individuals smuggled 4. 18 U.S.C. § 17. Id. 26. Arizona Attorney General, through the Arizona border who appeared 1324(a)(1)(A)(i)-(v); A.R.S. 18. Pew Hispanic Center, Fact Press Release, Sept. 20, § 13-2319(C). Sheet (May 22, 2006), at 1. 2006, “Terry Goddard in Maricopa County have been charged 5. 18 U.S.C. §§ 1592-95; 22 19. United Press International, Applauds Court’s with violating the anti-smuggling statute. U.S.C. §§ 7101-7110; Nov. 13, 2006, “Dem Rejection of Bid to Limit In the case decided on June 9, 2006, 48 A.R.S. §§ 1306-1308. Congress May Scrap Border ‘Coyote’ Investigations.” illegal immigrants were charged as conspir- 6. White House Press Release Fence.” 27. Arizona Attorney General, regarding Operation ICE 20. State v. Alvarado, CR 06- Press Release, Oct. 18, ators to human smuggling after they were Storm (Nov. 10, 2003), p. 005932-033, June 9, 2006, 2006, “Terry Goddard discovered in a pair of furniture trucks 50 1. Minute Entry, p. 7. Vows To Continue miles west of Phoenix. Some pled guilty to 7. GAO-05-892T, p. 2. 21. Loose Borders Sap County Human Smuggling solicitation to commit human smuggling, a 8. DHS Fact Sheet for Arizona Coffers, USA TODAY, Mar. 7, Prosecutions.” Border Control 2006, at 1 (citing 28. Alvarado, CR 06-005932- Class 6 felony that carries up to a year in Initiative–Phase II (Mar. 30, Department of Justice 033, June 9, 2006, jail. 2005), p. 1. records). Minute Entry, p. 3. On October 19, 2006, for the first 9. Id. 22. Pew Hispanic Center, Fact 29. Maricopa County time in the United States, a jury convicted 10. Statement of ICE Asst. Sec’y Sheet (April 26, 2006), at 1. Attorney Press Release, Julie Myers to Senate 23. A.R.S. § 13-2319(C). October 19, 2006, an illegal immigrant of conspiring to com- Judiciary Subcommittee 24. Arizona Attorney General, “Illegal Immigrant Found mit human smuggling, a Class 4 felony, (June 19, 2006), p. 2. Press Release, undated, Guilty By Jury.” under the “anti-coyote” and conspiracy 11. Id. at 3. “Border Trafficking Team to 30. Id. 12. HSTC Report to Congress 31. Id.; Maricopa County statutes.29 The illegal immigrant, who was Combat Human Smuggling (June 16, 2005), p. 3. and Drugs,” available at Attorney Press Release, found to have agreed to be smuggled into 13. 8 U.S.C. § 1324. www.azag.gov/ Nov. 1, 2006, “List of the United States, now faces a potential 14. GAO-05-305, p. 15. CriminalProsecutions/Border Felons Convicted Under sentence of almost four years’ imprison- 15. Associated Press, Troops TrafficingTeam.html Arizona’s Human ment when he is sentenced on December Reducing Illegal Border 25. Arizona Attorney General, Smuggling Law.” 5, 2006.30 www.myazbar.org JANUARY 2007 ARIZONA ATTORNEY 37