Wednesday, July 13, 2005

Illegal aliens as "trespassers"

Town Uses Trespass Law to Fight Illegal Immigrants - New York Times:
The officer questioned Mr. Ramírez, a 21-year-old Mexican who acknowledged that he was in the country illegally, and the New Ipswich police tried to get federal immigration authorities to arrest him. But when immigration officials demurred, not considering him a priority given scarce enforcement resources, the police acted on their own. They took the highly unusual step of charging Mr. Ramírez with criminal trespassing, and held him overnight.

The prosecutor, Nicole Morse, argued that local police agencies had a right to cite illegal immigrants.

"Just as with a sex offender," Ms. Morse said, "the hope is that they will go and register with the state. And if they don't, then they are violating the law.

Noting that if Mr. Ramírez was found guilty, he would be sentenced to nothing more than a $1,000 fine, not jail time, the judge also asked the prosecutor, "How is national security or even local security enhanced by giving someone a citation?"

He decided that in the future he would use the state's criminal trespassing law, which says that a person is guilty "if, knowing he is not licensed or privileged to do so, he enters or remains in any place."

Even some critics of the New Hampshire citations, like Susan J. Cohen, a Boston immigration lawyer, said the law's broad language made it seem applicable to immigration.

Ms. Cohen said most states' criminal trespassing laws referred specifically to private property and could not be easily applied to immigration. But Kris W. Kobach, a law professor at the University of Missouri-Kansas City, who was counsel to John Ashcroft when Mr. Ashcroft was attorney general, said he believed that New Hampshire's wording was not unusual, and added that the charges were appropriate because the government "has always been careful to invite and encourage local assistance with immigration arrests."
So, we've got a cop arresting an illegal immigrant for trespassing, a prosecutor comparing illegal immigrants to sex offenders, and last, but not least, Kris Kobach! While the Times fails to mention his ties to racist groups and his work on behalf of a racist anti-immigrant group, we can imagine that putting his name close to Ashcroft's is a warning flag.

The appropriate context for this is that the state is 96% white. I'm guessing this cop isn't busting Polish tourists who've overstayed their visas. In this case, the arrestee was stopped on the side of the road making a cell phone call. It isn't clear why the officer decided to talk to him in the first place, or how his immigration status came up to begin with. I'm thinking this is a case of racial profiling, parking while Mexican.

I love the vacuity of Kobach's defense. He thinks that it's appropriate to charge a guy with trespassing in hopes that it will "encourage local assistance with immigration arrests."

I'm no lawyer, but isn't the granting of "licenses" or "privileges" to be in the country a federal matter, and not subject to state oversight? If the state's could regulate behavior like this, what's to stop the town from saying that particular racial groups, or citizens of particular states, are not "licensed or privileged" to be on public property in a town?

I seem to remember a similar case from North Carolina, but can't find it.