Published: 10.04.2006
IMMIGRATION DEBATE
Should you check your passenger's legal status?You may not be arrested, but your car could be seized if you are stopped while transporting someone in the country illegally
CLAUDINE LoMONACO
Tucson Citizen
Every day, in the course of routine activities, thousands of Tucsonans transport people who are in the country illegally.
An errand to the supermarket with the maid, a ride to a family gathering with a relative or a trip to the hospital with the handyman who falls off a ladder.
According to the U.S. Border Patrol, those drivers are committing a crime by transporting illegal immigrants.
"It doesn't make any difference whether you're taking them to the grocery store or taking them from the desert to the hospital," said Jesus Rodriguez, a spokesman for the agency's Tucson sector. "There is no free pass."
Case law and those in the legal profession, including the U.S. Attorney's Office for Arizona, which prosecutes smuggling cases, present a more complex picture, one that differentiates between smuggling somebody into the country and driving a co-worker to a construction site.
According to the courts, the mere presence of an illegal immigrant in a vehicle does not mean the driver has committed a crime.
On the streets, however, the Border Patrol calls the shots.
Its agents can seize vehicles based simply on the presence of a passenger who is an illegal immigrant, Rodriguez said. The vehicle's owners then face steep impound fees and long waits to retrieve their cars, according to experts.
The number of such seizures was not available from either the Border Patrol or the U.S. Attorney's Office.
A 1999 class-action law suit, Gete v. Immigration and Naturalization Service, successfully challenged the Border Patrol's seizure policy.
"It's absolutely incorrect what they're saying that they can seize just because there is somebody illegally in the car," said Robert Pauw, a Seattle lawyer who filed the suit. "They cannot do that and it's very clear."
According to the settlement agreed to by the INS, which has since been dismantled and folded in the Department of Homeland Security, agents can seize a car only when they have reason to believe a driver was attempting to bring someone into the country illegally.
Xavier Rios, a spokesman at Border Patrol headquarters in Washington, D.C., said he was not familiar with the details of the settlement, but defended the agency's current practice.
After repeated requests to discuss the settlement, another Washington spokesman, Mario Martinez sent an e-mail containing the exact wording of U.S. Criminal Code Title 8-1324, which relates to alien smuggling. He reiterated the agency's stand that agents can arrest anyone in the United States or a U.S. territory if they have "probable cause that a violation of alien smuggling has occurred."
The Border Patrol's message and practice, together with mounting political pressure on the topic of illegal immigration, has led to fear and confusion.
"Are they saying we're supposed to check somebody's immigration status?" asked Cecilia Gutierrez-Arce, a real estate agent and legal permanent resident whose extended family includes U.S. citizens, illegal immigrants and a Border Patrol agent.
"It's like McCarthy days. Are we supposed to be spying on our neighbors? On our relatives?"
Absolutely, according to Chris Simcox of the Minuteman Civil Defense Corps.
He said people have a "civic duty" to check the immigration status of passengers and alert authorities if they suspect someone is in the country illegally.
"It would certainly have a chilling effect on employers," he said.
The debate on transporting illegal immigrants was set to play out during the trial of Daniel Strauss and Shanti Sellz, two 23-year-old volunteers with the aid group No More Deaths who were arrested in 2005 while driving three illegal immigrants from the desert to a medical clinic in a Tucson church.
But a federal judge in Tucson dismissed the charges last month. The government had given No More Deaths volunteers reason to believe their actions were legal, and therefore could not prosecute them, U.S. District Judge Raner C. Collins ruled. He did not address the legality of their action.
"That issue must wait for another day," Collins wrote.
Lawyers for Sellz and Strauss argued that the two were innocent because they were trying to get medical aid for the three men and were not transporting them "in furtherance of" illegal entry into the United States, as required by federal statute.
The U.S. Attorney's Office for the district of Arizona declined to discuss the specifics of the law.
Spokesman Patrick Hornbuckle said only that the office looks to see if transportation was "in furtherance of an illegal entry into the United States," when deciding who to prosecute.
That's exactly what Sellz and Strauss did when they picked up the men and headed to Tucson, the U.S. Attorney charged in the indictment against them.
Defense attorneys balked, citing a 1977 precedent-setting decision by the 9th U.S. Circuit Court of Appeals that overturned the conviction of Encarnacion Moreno, a foreman in Washington state charged with transporting illegal immigrants. The court found that Moreno, who worked for a reforestation company, was "transporting aliens as part of the ordinary and required course of his employment."
As such, he had not violated the law, the decision said, which required that there be "a direct or substantial relationship between that transportation and its furtherance of the alien's presence in the United States."
The 9th Circuit judges cautioned that a broader interpretation of the law 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."
Three decades later, drivers can and do face serious consequences.
A year and a half ago, 23-year-old Marana native Richard Morales was driving a neighbor to a junkyard for car parts when a Border Patrol agent pulled him over.
It turned out his neighbor of 10 years was in the country illegally. Morales had no idea.
"He'd lived here since I was kid," said Morales, a former mechanic at Pep Boys.
"He had a job here, three kids, a wife that worked at Wal-Mart. Why should I ever think about it?"
Border Patrol agents arrested him on suspicion of smuggling.
He was released after six hours, he said. The agency seized his car and two months later he received a storage bill for about $900, which he couldn't pay.
"I lost the car. I lost my job. I lost everything," Morales said. "How could they do this to me?"
For those living with a heavy Border Patrol presence, such as Tucsonans, car seizure can be a concern.
Beth Ann Johnson, volunteer director of Casa San Juan, a migrant center at St. John's Catholic Church, 602 W. Ajo Way, takes no chances. At every training session, she cautions volunteers about giving a ride to any of the people they help.
"I feel it's my duty to warn them," she said.
Gutierrez-Arce said fear stops many people from carrying out daily activities. But you can only be so careful, she said.
"If half of your relatives are in that situation," she said, "you just kind of say your prayers. We drive very carefully."
http://www.tucsoncitizen.com/daily/local/28230.php