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Illegal mmigrants may be prosecuted for hiring smugglers, judge rules

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PHOENIX — People who hire smugglers to get them into this country can be prosecuted under a year-old state law, a Maricopa County Superior Court judge ruled Friday.

Judge Thomas O'Toole rejected arguments by an attorney for several illegal entrants that they cannot be charged with conspiring to smuggle themselves across the border.

He said state law makes it clear that when two or more people are involved in a plan to break the law, that constitutes a conspiracy.

The judge also said federal immigration laws do not pre-empt states from imposing their own regulations.

That part of the ruling has potential implications beyond the specific questions of the law in question. It also goes to the ongoing fight at the Capitol over whether the state has the power to enact various laws dealing with illegal entrants — and specifically whether it can punish companies that hire undocumented workers.

Maricopa County Attorney Andrew Thomas called the ruling "a historic day in the fight against illegal immigration."

Sheriff Joe Arpaio, whose deputies and posse members already have arrested more than 250 people under the law, said the "court of public opinion" already was on his side. Friday's ruling, he said, ensured the court of law also is there, too.

But Tim Agan, one of the attorneys for the more than 48 illegal entrants arrested on March 2, vowed to appeal.

He said O'Toole erred in concluding that the 2005 law gives the state the power over issues of immigration — issues he said are exclusively the purview of the federal government.

Jose Colon, another attorney, said he will appeal another aspect of O'Toole's ruling that people can be prosecuted in Arizona for a conspiracy that he said occurred in Mexico to smuggle them into the state.

O'Toole, however, said the "ongoing nature" of the conspiracy meant some of the elements occurred in this state.

The ruling comes despite public statements by sponsors of the legislation that their intent was to give state and local police some legal options to arrest and prosecute people smugglers.

Both Senate Majority Leader Tim Bee and Rep. Jonathan Paton, both Tucson Republicans, said they never designed the measure to go after the immigrants themselves.

But O'Toole said the statute is clear "and there is no evidence from the legislative history that the Legislature intended to exclude any prosecution for conspiracy to commit human smuggling."

The fact that the conspiracy involves people smuggling themselves does not make it any less of a crime, O'Toole concluded.

Paton said he introduced the legislation to supplement federal laws aimed at smugglers.

"The U.S. Attorney's Office, because of resources and the like, couldn't keep up with all the cases they had," Paton said. This was designed to let state prosecutors pick up the slack and go after those who smuggle people for pay.

Paton said he never thought the measure would be used to arrest illegal entrants. But O'Toole did not have the benefit of those thoughts: Paton said no one involved in the case ever talked with him.

Paton said he hasn't considered whether to try to amend the statute to narrow its scope.