-Submitted by David Drumm (Nal), Guest Blogger
Maclovio Bautista, a legal resident of Washington state and the U.S. for more than twenty years, is under threat of deportation because he was caught giving a ride to an illegal alien. While on their way to see a mechanic, they were pulled over by a Border Patrol agent. Bautista’s companion fled only to be apprehended later. Bautista was held for three days at the Northwest Detention Center in Tacoma.
A spokesman for the Border Patrol, Jeffrey Jones, said that agents are empowered to detain “anyone” on suspicion of “alien smuggling” if they’re found to have an illegal alien in their vehicle. Jones said it’s a crime to transport an illegal alien “within” the United States.
Jones cites U.S. Code §1324 (a)(1)(A)(ii) which reads:
knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
That last portion, “in furtherance of such violation of law,” is the relevant phrase. Ann Benson, director of the Washington Defender Association’s Immigration Project, claims that “simple transportation does not meet the legal test for conviction.” Let’s look at the case law.
The Ninth Circuit Court of Appeals has jurisdiction for Washington state. In the case of United States v. Moreno (1977), the Ninth found:
Mr. Moreno was transporting the aliens as part of the ordinary and required course of his employment as foreman.4 As such, his transportation of the aliens was only incidentally connected to the furtherance of the violation of law, if at all.
We merely state that where the transportation of such an alien occurs, there must be a direct or substantial relationship between that transportation and its furtherance of the alien’s presence in the United States.
The Ninth’s test is that a “direct or substantial relationship” must exist for “furtherance of such violation of law” to have any meaning. The Court recognized that a broader interpretation of that phrase would “potentially have tragic consequences for many American citizens who come into daily contact with undocumented aliens and who, with no evil or criminal intent, intermingle with them socially or otherwise,” creating “a new crime and a new class of criminals.”
Is the Border Patrol unaware of the Ninth’s ruling or do they think they’re above its jurisdiction?
In a patchwork of rulings, other Circuits have different interpretations of the “in furtherance of” phrase. In the case of United States v. 1982 Ford Pick-Up (1989), the Sixth Circuit found that Moreno was wrongly decided. The Sixth took an “intent-based” approach:
The government may not obtain a forfeiture under section 1324(b)(1) pursuant to a violation of section 1324(a)(1)(B) unless it proves that the defendant willfully transported an illegal alien with the specific intent of supporting the alien’s illegal presence.
In United States v. Merkt (1985), the Fifth Circuit found that:
Willful transportation of illegal aliens is not, per se, a violation of the statute, for the law proscribes such conduct only when it is in furtherance of the alien’s unlawful presence. The jury must be instructed that proof of this element of the offense is prerequisite to conviction.
In United States v. Parmelee (1994), the Seventh Circuit ruled that the government must prove the “in furtherance of” part of the case:
As in other criminal prosecutions that require mens rea, the government may prove the defendant’s knowledge by reference to the facts and the circumstances surrounding the case.
While our states and cities are cutting services due to budget shortfalls, it’s refreshing to see that the federal government can afford to spend tax dollars arresting, incarcerating, and trying drivers who simply give rides to illegal aliens.
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