-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.
H/T: Seattle Weekly, Peninsula Daily News, Catholic Legal Immigration Network, Radley Balko.
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rcampbell, that’s the beauty of federalism. You like a state law? Trumpet the 10th Amendment! You think a federal law is better than a state law? Go with the Commerce Clause!
Oro – I tried to edit it, to help myself understand the points you were making. I know I didn’t get the ending right, but that is because I didn’t understand it.
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Undocumented workers are a source of low wage labor. Low wages help increase profits for business owners, restrain prices for counsumers, and control inflation. Rather than modify immigration laws to provide low cost labor, the existing laws were not enforced. Politicians avoided the controversary that a public discussion would entail, and the immigrants were placed in a weak position, unable to bargain, and subject to deportation.
Still, a large supply of immigrant laborers found better paying work in the USA. This allowed them to send money back home to help their families and their communities. But the immigrant was often not getting the protection of the laws, and was living on the margins of society.
Little by little, the need for labor was reduced by increased mechanization and automation. With globalization, manufacturing shifted overseas, in auto and steel, and also in clothing, to take advantage of even cheaper labor in even less regulated markets. These changes had the same downward effect on costs, prices, and inflation.
The decline in the need for labor crushed the unions, but also crushed undocumented labor. With the failure of the unions, auto workers, steel workers, airline pilots, nurses and others began to be pushed out of the middle class. The animus about undocumenteds and the desire to close the borders are less about securing America from terrorist threats and more about securing low level, no benefits jobs for American citizens.
America’s economic problems were birthed during post-WWII luxury – when jobs creation in order to serve the community was replaced by jobs created to satisfy individual desires for doo-dads. The economy changed from being about full employment to full garages.
WWII resulted in the U.S. economy becoming a single economic unit where the concern for the bottom line became more important than concern for one’s neighbor –profit over people. Local just doesn’t matter in a single economic unit as huge as the United States.
Did you try to edit it at all?
Oro Lee
Thank you for the post. As you suggested, it’s spot on in each and every paragraph.
Oro Lee,
I echo rcampbell’s comment. I am copying and pasting the entire post for future reference when I an excellant restatement of the issues elaborated upon.
I beg pardon for the following extensive remarks.They are excerpts of a chain email which my daughter received from a fellow, college student and forwarded to me. It is part of a longer discourse emanating from an on-campus matter involving immigration issues. The remarks touch on several issues which have been mentioned here in recent articles. It ends rather abruptly because the not-included final paragraphs deal only with local college concerns. The excerpts contain ideas I had not encountered before and found worthy of contemplation
“To the issues at hand and what I call “unseen” government regulation. Most people think of law as Constitutions, statutes, regulations, and court decisions. There are two other types as well. One is bureaucratic policy – you gotta follow their procedures and make sure that some decision maker is able to put an x in every box on his checklist – even if the box is totally inapplicable. On this, it’s just easier and cheaper to simply play their game instead of trying to educate them.
“The other type is written on purse strings. Government doesn’t just hand out money willy-nilly – it comes with all sorts of conditions. Fail to meet or violate a condition, the purse strings transform into a noose.
One of those purse strings has to do with the employment of undocumenteds. Yes, we should obey the law because it’s the law. But a lot of people obey the law only if there is the probability of being severely punished. That has been true of immigration for a long time.
Here’s my take. There is the law that is on the books and there is the law on the ground. The real, at the moment public policy of a state is not expressed by words in books but in boots on the ground. It is a matter of enforcement. And when it came to undocumented laborers, there was no enforcement. Huge numbers of manual labor jobs were performed by undocumenteds and everyone knew the risk of enforcement was negligible. They were taking the difficult, dirty, cheap jobs (made even cheaper because the udocumented’s wages were below legal limits, and there were no benefits or tax withholdings). And with the growing post-WWII economy, there were plenty of higher paying, easier jobs for Americans. And, in a growing economy, this was a pretty good deal on various economic fronts, even for the undocumented worker.
Barring enslavement and other inhumane or imminently dangerous situations, the undocumented worker considered ti better to be in the U.S. than elsewhere (or he would remain in or return to his home country). In some localities, there was even wage competition for undocumenteds. Often times, some earnings were remitted to family back home which represented much desired hard currency being injected into the home country – good for both the family and home country. Depressed labor costs (which include more than just wages) resulted in various combinations of greater profits and reduced consumer prices. It also reduced inflationary pressures in the labor force in general by freeing up more citizens for other and more desirable work – not necessarily (but probably) good for the American worker but especially for capitalists and consumers.
The undocumented worker was never fully integrated into society, so his social costs remained less than the American worker. Should he seek greater pay, safer work conditions, access to social or medical services, his employment would be terminated and/or he would be reported for deportation (with no negative consequences for the employer). Since the borders were wide open, a replacement was always at hand.
Non-enforcement of immigration laws concerning undocumented workers was – simply put — a big, fat government subsidy to labor intensive industries.
Then the economy began to change. There are a host of various factors which have converged to create today’s perfect economic storm. One of those factors is the dismantling of American Unions – which, I believe, constitutes one of the greatest unseen threats to democracy. I am certain that democracy is dependent on a large and affluent middle class and I also believe labor unions are a key component in growing and raising that middle class. Growing and raising the middle class should be the primary focus of this nation’s economic policy as it is the strongest bulwark in the protection of this democracy and its citizens’ freedoms.
Our economy is consumer driven (over the long run, it is self-evident that this model is non-sustainable). The major cost in supplying consumer products is labor – from extraction, through production, onto distribution, with associated transportation and marketing. In mature markets facing reduced growth rates (get that? – the economy is still growing, only slower), it is much more difficult to increase demand for a product to achieve greater profit than it is to find cheaper resources. The greatest savings are to be found in labor costs.
As stated, undocumented workers depressed labor costs. In the modern time, outsourcing production (think China) or converting labor into capital (think robots) does the same. These later practices have had the effect of busting unions – its as if huge armies of underpaid undocumenteds invaded technology and manufacturing companies. With the expiration of unemployment benefits in a stagnant economy and the abrogation of workers’ pensions (why do you think American Airlines filed a bankruptcy petition), where are these folks going to find employment? The arguments now are (wrongly?) that the undocumenteds are a drain on society and are taking away American jobs. The animus about undocumenteds and the desire to “close” the borders are less about securing America from terroristic threats and more about securing low level, no benefits jobs for American citizens displaced by global, free trade. (Driving its citizenry to subsistence wages seems to be the true field of competition among nations in this type of economic model — even without the skewing effect of the capitalists’ transnational corporations and their massive, accumulated wealth).
The undocumenteds served their purpose, now f___ ‘em. It’s all about me, mine, and more (and your’s if I can get away with it – think investment bankers).
The massive and unrestricted use of undocementeds for several decades is part of the larger transformation of the American economic system. It started shortly after WWII. We were not a consumer society before WWII. For many, we were a subsistence society – think Appalachia, deep south, Indian lands. Any post-Depression social net was nascent. America could hardly be thought of as a single economic unit. Most everything was local, almost tribal. Communities were small but tight. It took everyone working together to make sure things went well. Economies weren’t about maximizing profits. It wasn’t about the latest, shiniest doo-dad. It was about jobs. Government spending was behind those jobs – FDR’s Great Society and war industries and military enlistments.
America’s economic problems were birthed during post-WWII luxury – when jobs creation in order to serve the community was replaced by jobs created to satisfy individual desires for doo-dads. And could those converted war-time plants and those returning enlisted men turn out the doo-dads! And employers competed for laborers to such an extent that Unions and employee pensions were smiled upon. And undocumenteds were permitted easy access to depress labor costs in certain industries. But make no mistake, the economy changed from being about full employment to full garages.
WWII resulted in the U.S. economy becoming a single economic unit where the concern for the bottom line became more important than concern for one’s neighbor –profit over people. Local just doesn’t matter in a single economic unit as huge as the United States.”
What about “material support” of bankers, or “in furtherance”.
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You made them criminals. You catch them.
In high school Civics class we were taught that one is subject to the laws of the country we’re in at any given time. When not in the US, we must obey the laws of the country we are visting and are subject to their version of justice. So it is with people who have overstayed their visa or entered the country illegally. We have existing laws to cover that and they are administrered in amanner consistant with American values and due legal process. That’s the law of this land. I’m not interested in using the paradigm of how Mexico or Saudi Arabia or Iran handles people in their country illegally. I care that America be the most humane in it’s adherence to it’s laws. That’s what the concept of American exceptionalism should be about.
Can’t we start arresting REAL criminals? Maybe law enforcement officers could hang out on Wall street and arrest the banksters who tanked our economy.
One of our family members is a physician who sees numerous possibly suspect people every day in a medical practice. It’s possible that either he/she could be doing something illegal by giving the person a ride home because there’s no bus or taxi in the desert. Letting a patient walk miles in the hot sun while ill would be cruel indeed, and violate a medical oath. So, this law and others are ignored.
What would you do?
But what if I pick up the Swedish Bikini Team, who have overstayed their Visa; that’s about six concurrent counts. How was I supposed to know? All the Swedish I know is what I learned on “The Muppets”.
To Betty Kath:
The “illegal alien” is not guilty by the act of existing, rather he is guilty by the intentional presence in the US.
His illegal act, is affirmatively being in the US.
“Is the Border Patrol unaware of the Ninth’s ruling or do they think they’re above its jurisdiction?”
Nal, thanks for the well written post. I think the answer to the above is yes.
It’s worth noting that the federal investigation of Maricopa County (AZ) Sheriff Joe Arpaio found egregious breaches of immigration laws and multiple civil rights violations in his handling of racial profiling sweeps.
I’m confused, however, about the opposing legal stances the State of Arizona has taken on this and another controversial issue where the question is state laws versus federal. One the one hand, the state has sued the federal government claiming it’s immigration bill, SB1070, supercedes federal law.
On the other hand, the state has been dragging it feet in implementing a citizens’ initiative passed last year allowing medical marijuana use. The state filed a suit in federal court allegedly to seek a determination of whether a state employee might be held in violation of federal law if they implement the state statute. The Attorney General was reprimanded by the federal judge last week for not taking an affirmative position one way or the other in the suit. She said the state must decide if they are claiming the federal law or the state law supercedes the other and prosecute accordingly. The other day, the AG informed the court of the state’s decision that the federal law supercedes state law.
Can someone please explain how federal law can supercede AZ on the medical marijuana issue and not on immigration and vice versa? If SB1070 goes down because of this, does that take medical cannabis with it? If states can mandate medical pot laws despite federal objections, can they do the same with immigration?
A bit of a quibble here but how are individuals illegal, as in illegal aliens? I thought that acts were illegal, not people. Is being a person an act of illegality?
“Would or could you violate the laws by complying with the “good Samaritan” duties imposed in some states….”
AY,
That’s a good question and I was thinking along those lines myself. Hypothetically, if you find someone whose is an illegal alien and identifies themselves as such, injured on the side of the road. Your rush them to the hospital since the injuries are serious and are stopped for speeding by a LEO. If you tell the LEO the story to explain your speeding, have you broken the law? From the LEO’s perspective you should have used your cell phone and called 911.
This is of course silly, but then what if you picked up a hitchhiker? There should be an intent to significantly aid, or harbor for the purposes of evading the immigration laws, before any charges are made. Rather than an arrest an investigation would have been much more appropriate. Could it be something about the name Bautista and it Latino origins, that had something to do with this man’s arrest?
Would or could you violate the laws by complying with the “good Samaritan” duties imposed in some states….