Forget the Minutemen, that group of anti-immigration activists patrolling the Arizona desert in search of illegal immigrants this month. A small-town police chief in New Hampshire might have found the best way to embarrass the Department of Homeland Security into finally doing something about America’s porous borders: Arrest illegal aliens and charge them with trespassing.
New Ipswich, N.H., a small town by the Massachusetts border, is not where one would imagine a major immigration dispute involving illegals from Central America would begin. The town of fewer than 5,000 residents is roughly 2,300 miles from the Mexican border, and its Hispanic population is less than one percent. Yet it has become a hotbed for border patrol issues thanks to Police Chief W. Garrett Chamberlain’s efforts to get the federal government to do something with the illegal aliens he keeps finding in town.
Last July Chief Chamberlain stopped a black Chevy van for speeding. Inside were nine Ecuadorians who confessed to being in the country illegally. They said they had come through California after paying as much as $10,000 a piece to be smuggled over the border. Some had been in country as long as four years. The chief contacted immigration officials (then the Immigration and Naturalization Service), but they refused to take custody of the aliens.
“They told me they didn’t have the resources to take them,” Chamberlain told the Union Leader newspaper. “We had to let them go.”
A few months later police discovered 11 illegal Mexicans living in the town. This time immigration did take them. Things calmed down after that, but this month they heated up again after police arrested Jorge Ramirez at a traffic stop. Ramirez had a valid Mexican driver’s license, but all of his other documents were forgeries. He admitted being in the United States illegally.
Chamberlain charged Ramirez with criminal trespass. Under New Hampshire law, a “person is guilty of criminal trespass if, knowing he is not licensed or privileged to do so, he enters or remains in any place.”
“Mr. Ramirez entered the United States illegally,” Chamberlain told the Union Leader. “He was not licensed or privileged to be here.”
On Tuesday Ramirez goes to court, where a judge will decide if Chamberlain’s application of the trespass statute is legally sound. If it holds up, it would mean any police officer in New Hampshire could arrest any illegal alien simply for being an illegal alien. That is a power only federal authorities have now.
If confined to New Hampshire, this tactic probably would have little effect on Washington. But if law enforcement officers in other states follow Chamberlain’s lead, there is the potential to terribly embarrass Department of Homeland Security bureaucrats as well as administration officials.
Arizona’s criminal trespass law covers people “(k)nowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.”
The border contains “reasonable notice prohibiting entry.” Imagine if, instead of meeting Minutemen with flashlights, illegal immigrants in Arizona met local police officers who immediately arrested them and charged them with criminal trespass. The jails would fill up pretty quickly, producing a big news story and highlighting Immigration and Customs Enforcement’s inability to take all of these newly arrested illegals off the hands of local law enforcement.
In Texas the criminal trespass law states: “A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.”
The Texas statute is not as plain, but it could easily be argued that it applies to illegal border crossers.
New Mexico’s criminal trespass law is divided into offenses against private and public property. It includes “knowingly entering or remaining upon lands owned, operated or controlled by the state or any of its political subdivisions knowing that consent to enter or remain is denied or withdrawn by the custodian thereof.”
The way the statute is written, it would be harder to prove that an illegal alien has trespassed merely by crossing the border in New Mexico than in Texas or Arizona. But the chances for succeeding with such an argument are better in New Mexico than in California.
California’s criminal trespass statutes are tightly defined and run for pages, outlining in very specific detail each type of trespass and apparently precluding any interpretation that would apply to someone illegally crossing the border. But maybe a creative lawyer could prove otherwise.
Of course, immigrants illegally enter from Canada too, and it would be worth researching trespass laws in all border states to see if criminal trespass could be applied to illegal aliens all along the border. (For the sake of brevity, I restricted my statute search to the four states bordering Mexico, where the immigration issue is most highly charged and the problem is most severe.)
The application of criminal trespass laws to illegal aliens would not have to hold up in court in all states to have an effect. If enough police departments simply arrested people for the offense, it could generate a public outcry that would pressure lawmakers and the administration to speed up the reforms that are slowly winding their way through Congress and the Department of Homeland Security.
Congress has told DHS to hire 2,000 new border agents this year. But last week DHS Secretary Michael Chertoff told a Senate subcommittee that the number would be 210 new agents this year. The department just is not able to train or pay 2,000 new agents, he said.
Since DHS won’t be devoting the resources necessary to clamp down on illegal immigration in the near future, it sure wouldn’t hurt if local police did.
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