HCR2039 - 482R - House Bill Summary

House of Representatives

HCR 2039

illegal aliens; enforcement; trespassing

Sponsors: Representatives Pearce, Barnes, Burge, et al.

X	Committee on Government
	Caucus and COW
	House Engrossed

HCR 2039, if approved by the voters, requires officials, agencies and personnel of counties, cities and towns to fully comply with and, to the full extent permitted by law, assist in the enforcement of the federal immigration laws and establishes the crime of trespassing by illegal aliens.

History

Title 8 of the United States Code (U.S.C.) (Aliens and Nationality) contains federal laws relating to immigration in the U.S. 8 U.S.C. § 1325 provides penalties for an alien who:

Enters or attempts to enter the U.S. at any time or place other than as designated by immigration officers.
Eludes examination or inspection by immigration officers.
Attempts to enter/obtain entry into the U.S. by false representation.
Knowingly enters into marriage for the purpose of evading U.S. immigration laws.
Knowingly establishes a commercial enterprise for the purpose of evading U.S. immigration laws.

Currently, Immigration and Customs Enforcement (ICE) is the primary authority for the enforcement of federal immigration law. Created in March 2003, ICE is the largest investigative branch of the Department of Homeland Security. The agency was created by combining the law enforcement arms of the Immigration and Naturalization Service (INS) and the US Customs Service.

8 U.S.C. § 1373(c) requires ICE to respond to inquiries by federal, state or local government agencies seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

In 1924, the Labor Appropriation Act of 1924 officially established the U.S. Border Patrol for the purpose of “securing the borders between inspection stations.” Today, U.S. Customs and Border Protection (CBP) is charged with a number of duties ranging from securing America’s borders to fostering world trade.

Currently, Arizona Revised Statutes Title 13, Section 1504 states that a person commits criminal trespass in the first degree by knowingly entering or remaining unlawfully:

In or on a residential structure.
In a fenced residential yard.
On any residential yard and, without lawful authority, looking into the residential structure thereon in reckless disregard of infringing on the inhabitant's right of privacy.
On real property that is subject to a valid mineral claim or lease with the intent to hold, work, take or explore for minerals on the claim or lease.
On the property of another and burning, defacing, mutilating or otherwise desecrating a religious symbol or other religious property.
In or on a critical public service facility.

Criminal trespass in the first degree committed by entering or remaining unlawfully in relation to a residential structure, for the purpose of negatively affecting religious articles or a critical public service facility is a class 6 felony. Offenses under the remaining circumstances are class 1 misdemeanors.

United States v. Di Re

Michael Di Re was convicted on a charge of knowingly possessing counterfeit gasoline ration coupons. The evidence was found after his body was searched and he was arrested without a warrant. The U.S. Supreme Court found that in the absence of an applicable federal statute, the law of the state where an arrest without warrant takes place determines its validity. It was further determined that marshals and their deputies “shall have the power to make arrests without warrant for any offense against the laws of the United States committed in their presence or for any felony cognizable under the laws of the United States.” Notwithstanding these findings, the conviction against Di Re was overturned on appeal.

United States v. Janik

The defendant, Mitchell Janik was convicted for possessing two unregistered guns and he appealed. The two questions posed in the case are whether or not Janik’s speedy trial rights were violated and if the evidence of his possession of the guns was sufficient to support the conviction, considering that he was handcuffed by federal agents, but arrested by local law enforcement. Janik was ultimately indicted on federal charges. It was found that the state law enforcement officers had the implicit authority to make federal arrests by the Seventh Circuit of the U.S. Court of Appeals.

United States v. Salinas-Calderon

The defendant was charged with knowingly transporting six aliens unlawfully in the United States. The question was whether the highway patrol trooper had probable cause to arrest the defendant and if the defendant lacked standing to object to any violation of his Fifth Amendment rights, and the Fifth Amendment rights of the passengers. The U.S. Supreme Court found that the highway patrolman did have probable cause to arrest Salinas-Calderon and there was no violation of the Miranda rights. The evidence is undisputed that each of the persons received their Miranda rights in Spanish before they were interrogated.

Provisions

Enforcement of Federal Immigration Law

· Requires all officials, agencies and personnel of this state and counties, cities and towns to fully comply with and, to the full extent permitted by law, assist in the enforcement of federal immigration laws.

· Requires officials, agencies and personnel to determine the citizenship of every person arrested.

· Stipulates that if a person arrested is an alien, the person’s immigration status must be verified as prescribed by 8 U.S.C. 1373(c).

· Stipulates the following for an arrested person that is unlawfully present:

· If the state or local governmental entity chooses not to prosecute, the person must be transferred to ICE or CBP.

· If the person is acquitted of any state or local law, discharged from imprisonment or pays any fine imposed, the person must be transferred to ICE.

· If the person is convicted a crime, the person must complete the full sentence before released to ICE or CBP.

· Prohibits, except as provided in federal law, officials, agencies or personnel of counties, cities and towns from being prevented or restricted from sending, receiving or maintaining information relating to the immigration status, of any individual or exchanging that information with another governmental entity for the following official purposes:

Determination of eligibility for any federal, state or local public benefit, service or license that is restricted on the basis of immigration status.
Verification of any claim of legal domicile if legal domicile is required by law or contract.
Confirmation of the identity of any person who is detained.

· Withholds states funding from any law enforcement entity that adopts or implements any policy that limits officers from makes inquiries regarding immigration status or reporting an unlawfully present person to the federal government. The Attorney General or a county attorney determines if a law enforcement entity is violating this provision.

Trespassing by an Illegal Alien

· Specifies that it is unlawful for a person who is a citizen of any country other than the U.S. to enter into or be on any public or private land if the person is in violation of 8 U.S.C. § 1325.

· Provides the arresting authority with the discretion to either:

Transfer the arrestee to the federal agency with jurisdiction.
Refer the arrestee for prosecution.

· Makes a first offense a Class 1 misdemeanor. Any subsequent violation is a Class 4 felony.

· Requires a convicted person to be sentenced to a term of imprisonment no less than the presumptive sentence.

· Prevents a person convicted of the new offense from being eligible for suspension or commutation of sentence or release on any basis until the sentence is served.

· Requires the sentence to run consecutively to any other sentence imposed on the person.

· Requires the court to order the person to pay jail costs and an additional assessment of:

At least $500 for a first offense.
Twice the amount the person was ordered to pay for the first offense if this is the second or subsequent offense.

· States that the court will collect the assessments and transmit the collected monies to the Department of Public Safety for deposit in a special sub-account of the account established for the Gang and Immigration Intelligence Team Enforcement Mission.

· Stipulates that monies in the sub-account are subject to legislative appropriation for distribution for gang and immigration enforcement and for county jail costs relating to illegal immigration.

· Increases the penalty to a Class 2 felony if the person commits the offense while in possession of:

A dangerous drug (A.R.S. § 13-3401).
Precursor chemicals used to manufacture methamphetamine (A.R.S. § 13-3404.01).
A deadly weapon (A.R.S. § 13-3101).
A dangerous instrument (A.R.S. § 13-105).
Property used for committing an act of terrorism (A.R.S. § 13-2308.01).

· Contains a legislative intent section.

· Contains a severability clause.

· Directs the Secretary of State to submit this proposition to the voters at the next general election.

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· Forty-eighth Legislature