A judge upheld an Arizona law that created the state crime of immigrant smuggling, rejecting arguments that it was an unconstitutional attempt by the state to regulate immigration.
The ruling June 9 was a victory for a prosecutor who has used the 9-month-old law to target not only smugglers but also their customers as conspirators to the crime.
The interpretation led to scores of prosecutions against immigrants in Maricopa County and drew a sharp response from immigrant advocates and the law’s author, who said it was intended to apply only to smugglers.
Maricopa County Superior Court Judge Thomas O’Toole rejected arguments by defense attorneys that the Legislature never intended the law to be used on the customers of smugglers.
“There is no evidence from the legislative history that the Legislature intended to exclude any prosecution for conspiracy to commit human smuggling,” Judge O’Toole wrote.
Most of the 229 people charged in Maricopa County under the smuggling law since March are immigrants accused of paying to be smuggled into Arizona, the nation’s busiest illegal entry point.
The law went into effect Aug. 12, 2005, and was a response to frustration over Arizona’s porous border with Mexico and the costs of health care and education for illegal immigrants and their families.
The challenge came in the first case brought by Maricopa County Attorney Andrew Thomas under his legal opinion that the customers of smugglers can be prosecuted as conspirators.
In that case, 48 illegal immigrants — all but one of whom are Mexicans — were discovered in a pair of vans in March about 50 miles west of Phoenix.
So far, 20 of the 48 have pleaded guilty to the lower-tier felony of solicitation to commit immigrant smuggling. Most of those pleading guilty have been sentenced to two years’ probation and are expected to face deportation proceedings.
Appeal planned
Timothy Agan, one of the attorneys who challenged the law, said he plans to appeal the ruling to the Arizona Court of Appeals.
“We have a right to have somebody else review the decision,” Mr. Agan said.
Defense lawyers said Mr. Thomas’ approach was overreaching and that the state should not regulate immigration, which they contend is under the exclusive control of the federal government.
Prosecutors argued the law was constitutionally sound.
Federal law does not prevent Arizona from enforcing its smuggling law, and enforcement of state and federal smuggling laws serves the interests of both levels of government, Judge O’Toole wrote.
“In fact, concurrent enforcement enhances rather than impairs federal enforcement objectives,” Judge O’Toole wrote.
Mr. Thomas, who campaigned on a promise to get tough on illegal immigration, has defended his interpretation as necessary for holding the customers of smugglers accountable. Critics said his approach is overreaching and would be expensive if applied on a wide scale.
The law’s use has been limited mostly to Maricopa County, a hub for smugglers transporting illegal workers across the country.
Authorities elsewhere in the state have found it hard to hold immigrants who are witnesses to the crime when they have not been accused of working as smugglers or charged with state crimes.
Another problem is that some local authorities do not have enough money or employees to enforce the law, which provided no extra funding.
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