Court: Hiring smugglers also punishable under law

PHOENIX - People who hire "coyotes" to get them into this country can be prosecuted under a state law aimed at the smugglers, the Arizona Court of Appeals ruled Thursday.

In the first decision of its kind in the state, the judges rebuffed even the comments of Rep. Jonathan Paton, R-Tucson, one of the architects of the 2005 legislation, that it was never designed to go after the immigrants themselves. Judge Lawrence Winthrop, writing for the court, said it is possible that Paton may have intended that the migrants be considered the victims of the crime of human smuggling.

"This does not mean that either Rep. Paton or the Legislature intended to prevent the person smuggled from being punished for fueling the practice by paying to be smuggled, and thus engaging in a conspiracy to commit human smuggling,'' Winthrop wrote.

The appellate judges also rejected arguments that the state law is an unconstitutional infringement on the exclusive power of the federal government to regulate immigration.

Thursday's ruling is a significant victory for both Maricopa County Sheriff Joe Arpaio and County Attorney Andrew Thomas who have been using that 2005 law to prosecute not just the smugglers but their customers as part of a single conspiracy. And the decision, unless overturned, paves the way for other police agencies and prosecutors to follow suit.

The law makes it a crime to "intentionally engage in the smuggling of human beings for profit or other commercial purposes.''

It further defines the terms to include transporting of individuals knowing or having reason to know those people "are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state.''

Paton told Capitol Media Services that it was always aimed at the "coyotes." And he said the appellate court, which apparently had access to the transcript of the debate before the House Judiciary Committee in 2005, clearly missed that point.

"I stated that explicitly ... when I was asked about it by (Reps.) Ted Downing and Ben Miranda,'' Paton said Thursday. "So I think my statements pretty much stand for themselves.''

But Winthrop said if lawmakers believed that some prosecutors were misinterpreting or misusing the law, they had the opportunity to correct that when they tinkered with the statute in 2006. In fact, a bill to spell out that only the smugglers could be prosecuted under the law was introduced that year by Rep. Kyrsten Sinema, D-Phoenix.

Winthrop noted, though, the only change made to the law that year dealt with prosecutions when the people being smuggled were younger than 18.

The court did acknowledge that the power to regulate immigration rests exclusively with the federal government. But Winthrop said this law does not run afoul of that.

"Immigration regulations determine who should or should not be admitted into the country, and the conditions under which the legal entrant may remain,'' the judge said. "Arizona's human smuggling statute does not make such determinations.''

He said it simply makes it illegal to transport illegal immigrants for profit. The fact that one element of the crime be that the person being transported is not in this country legally, Winthrop said, does not make the law an impermissible immigration regulation.

The judges also rebuffed a claim by Juan Barragan-Sierra, the defendant in this case, that the Arizona law is flawed because it does not establish standards to determine whether someone is in
this country illegally. They said Barragan-Sierra has no standing to raise that issue because, by his own admission, he was in the United States illegally.

Court records show that Barragan-Sierra was arrested in 2006 after he was found under a piece of carpeting in the bed of a pickup truck stopped on State Route 85 in western Maricopa County. Most other occupants of the truck fled.

He later told a jail detention officer he contracted with an individual in San Luis Rio Colorado, Son., to bring him into the United States, agreeing to pay him $2,000 when he reached his destination in the state of Washington. He was led across the border on foot and picked up, first by a van and eventually by the truck which deputies stopped.

He was found guilty of conspiring to commit human smuggling. The judge suspended the two-year prison sentence on the condition that he leave this country and not return.