THE STATE OF NEW HAMPSHIRE
Cheshire-Hillsborough County J affrey-P eterborough District Court
Nashua District Court
State of New Hampshire
Vv.
Frederico Barros-Batistele - #05-CR-1474,1475
Wellington Brustolin Da Silva - #05-CR-1479,1480
Luiz De Amorim - #05-CR-1481,1482
Mauro Sergio Farias - 05-CR-1476
Bernarda Gallego - #05-CR-1477,1478
J orge Mora Ramirez - #05-CR-0736,0737
Sergio Robles-Ruiz - #05-CR-1483,1484
Marcos Vinicius S. Sousa - #05-CR-1486
ORDER ON MOTIONS TO DISMISS AND OBJECTIONS
The defendants in these cases are charged with violation-level criminal
trespass by the New Ipswich (Ramirez) and Hudson (Robles-Ruiz, De Amorim,
Farias, Da Silva, Gallego, Barros-Batistele and Sousa) Police Departments. All
were apparently engaged initially by officers for other reasons, but were then
charged with criminal trespass when the officers suspected the defendants were
in violation of federal immigration laws.
New Hampshire RSA 635:2 provides that a person is guilty of criminal
trespass as a violation “if, knowing that he is not licensed or privileged to do so,
he enters or remains in any place.” The police departments’ theory of their
charges, which they acknowledge is novel, is that the defendants knew they were
not properly documented to be in this country, because they had taken no steps
to lawfully enter or remain here, and thus also knew they were not licensed or
privileged to remain in the town of New Ipswich or Hudson. The novelty of the
charges is that until now, in New Hampshire at least, the “place” referred to in the
statute has been a specific parcel or structure of privately-owned real property,
rather than any public or private place within the respective town.
Motions to dismiss the criminal trespass complaints have been filed on
behalf of defendants Ramirez, Robles-Ruiz, Sousa and Gallego (the “Motions”),
claiming that these state law charges violate the Supremacy Clause of the United
States Constitution, Art. VI, cl. 2, in that the comprehensive system of federal
laws regulating “naturalization” adopted by Congress pursuant to U.S.
Constitution, Art. |, §8, preempts any state action attempting to regulate
immigration. They say the underlying basis of this fundamental principle of
constitutional law is that if each state could establish its own system of offenses
and penalties for immigration violations, it would undermine Congress’ power to
carry out a uniform national policy in that area.
The police departments’ objections to the Motions (the "Objections”)
acknowledge that federal authority to regulate immigration is exclusive, but argue
that the criminal trespass complaints do not constitute regulation of immigration.
They reason that because the statute as applied does not establish new
conditions for removal of immigrants or for determination of immigration status,
these charges are not inconsistent with federal law, but are merely tools to
enable local law enforcement to positively identify persons with no record of
existence in the available databases. Furthermore, they say these charges are
not intended either to facilitate deportation of the defendants or to hassle them
with fine payments, but are aimed solely at fulfilling each department's
undisputed duty to protect the security of its citizenry.
Fortunately, the resolution of these issues does not require this court to
understand much about substantive immigration law. It does, however, involve
consideration of the cases where state laws have been charged with violating the
Supremacy Clause.
Both the Motions and the Objections acknowledge that the United States
Supreme Court's decision in De Canas v. Bica, 424 U.S. 351 (1976) sets forth
the criteria for determining whether a state law (or its application in these cases)
is an unconstitutional entry into an area preempted by federal law. Those
criteria, which have been acknowledged and applied by the New Hampshire
Supreme Court in Appeal of Conservation Law Foundation, 147 N.H. 89 (2001),
are (1) whether federal law explicitly preempts state regulation in a particular
area; (2) whether absent specific preemption, state law infringes on an area
where Congress intended federal law to have exclusive jurisdiction, that is, to
“occupy the field”; or (3) whether state law actually conflicts with the provisions of
federal law.
The decision in De Canas is particularly instructive, not only because the
subject matter was also immigration law, but also because it demonstrates how
the criteria the Supreme Court established are to be applied to specific
circumstances. The issue was whether a California statute was preempted by
federal immigration law, where the state law prohibited employers from knowingly
hiring illegal aliens if such employment would adversely affect local resident
workers. Significantly, the Court stated that although “[plower to regulate
immigration is unquestionably exclusively a federal power,” Id. at 354, it was
unable to find “any specific indication in either the wording or the legislative
history of the [Immigration and Nationality Act (“INA”)] that Congress intended to
preclude even harmonious state regulation touching on aliens in general...” Id. at
358. Thus, having resolved the first of its criteria for federal preemption in the
negative, the Court moved on to the second.
In determining whether the California law entered an area where federal
immigration law was intended by Congress to be exclusive, the Court declared
that “[t]he central concern of the INA is with the terms and conditions of
admission to the country and the subsequent treatment of aliens lawfully in the
country.” Id. at 359. It then found that because Congress had passed other laws
giving the states authority over alien employment issues, “the INA should not be
taken as legislation by Congress expressing its judgment to have uniform federal
regulations in matters affecting employment of illegal aliens, and therefore
barring state legislation....” Id. at 362.
Finally, on the last of its criteria, the Supreme Court felt it needed further
information from the lower court in order to tell whether the California statute
“stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress in enacting the INA.” Id. at 363. Specifically, input
was sought on construction of the state statute, from which the Court might
determine whether the law “can be enforced without impairing the federal
superintendence of the field covered by the INA.” Id. at 363.
Turning to our cases, and considering how De Canas resolved its first
criterion, we can safely conclude that there is no explicit prohibition in federal law
against all state laws in any way touching on aliens. Thus, the mere fact that
RSA 635:2 has been applied to these defendants is not in itself unconstitutional.
Resolution of the second De Canas criterion is not as straightforward, in
that it requires a determination as to whether use of our criminal trespass statute
in the manner charged enters an area where Congress intended federal law to
“occupy the field.” The field is the regulation of immigration, which, in addition to
the other statements from De Canas cited above, “is essentially a determination
of who should or should not be admitted into the country, and the conditions
under which a legal entrant may remain.” Id. at 355.
The State argues that charging the defendants with criminal trespass is
not an effort to deport them for illegally remaining in New Ipswich or Hudson, or
to determine whether they may subsequently remain in this country, but is merely
intended to identify them as being in violation of federal immigration law, in the
interest of protecting the local citizenry from persons essentially of unknown
quantity. It further states that these proceedings are not in conflict with federal
law, because only the federal standards for determining immigration status are to
be applied by the court, nota different set of state guidelines.
The difficulty with this analysis is that the State asks the court not only to
use the federal standards to determine the defendants’ immigration status, but
then, based on that status, to find them guilty of an additional offense and to
impose additional penalties beyond those the defendants would face under
federal immigration law. The provisions of the INA, 8 U.S.C. §1101 etseq., set
forth quite a number of offenses, sanctions and penalties for violation of its
requirements ranging from civil deportation, to criminal fines and/or imprisonment
for such offenses as unauthorized entry into the United States (under §1325),
failure to register (under § 1306), and reentry by a previously deported alien
(under §1326). Allin all, this array of offenses, sanctions and penalties
constitutes a scheme of federal regulation “so pervasive as to make reasonable
the inference that Congress left no room for the States to supplement it,” which is
how our Supreme Court explained the second De Canas test of federal law
“occupying the field.” Appeal of Conservation Law Foundation, supra, at 91.
Moreover, the present cases are entirely different than that dealt with in
De Canas, where the regulation of employers who hired illegal aliens was found
to be “a merely peripheral concern of the federal regulation.” De Canas, supra, at
361. These prosecutions go directly to the subject matter of the sanctions and
penalties for immigration violations set forth in the INA, and attempt to add state
sanctions in the same area, a result which has never been permitted in any case
where federal regulation has been found to “occupy the field.” See Hines v.
Davidowitz, 312 U.S. 52, 63 (1941), which seems to be the seminal case for this
principle, and which is cited in many other decisions where federal law
permeates “the specific field which the States were attempting to regulate...” De
Canas, supra, at 362.
There is no need to dwell on the third De Canas criterion for federal
preemption, because the current charges clearly conflict with the comprehensive
menu of federal immigration offenses, sanctions and penalties by attempting to
add a new one to them.
Based on the foregoing, the criminal trespass charges against the
defendants are unconstitutional attempts to regulate in the area of enforcement
of immigration violations, an area where Congress must be deemed to have
regulated with such civil sanctions and criminal penalties as it feels are sufficient.
Before concluding, it should be noted that the federal system of enforcing
immigration violations does not preclude all efforts by local law enforcement to
participate and assist in that work. As the defendants point out, 8 U.S.C.
§1357(g) provides a process for state officers to become authorized to perform
“immigration officer functions” as, in effect, deputies of the federal government.
The functions permitted by this status include “investigation, apprehension and
detention of aliens,” which are primarily the goals the New Ipswich Objection (in
paragraph 3) sought to accomplish with its charge, because “an admittedly
overburdened ICE Department...does not have the resources to take custody of
the defendant directly.” The point, though, is that this role for local law
enforcement exists within the federal plan for enforcing immigration violations,
which is further indication that Congress intended to preclude any local efforts
which are unauthorized or based on other than federal law.
Finally, this analysis has purposely avoided any determination whether it
is proper as a matter of statutory construction for RSA 635:2 to be applied as the
police departments have sought to do. The reason is that there is no reliable
basis on which this court could undertake that inquiry, as there are no New
Hampshire cases dealing with the issue, or legislative history revealing the intent
of our lawmakers who passed the statute. The import of the analysis the court
has conducted, however, is that even if the police departments have applied the
statute in a manner not otherwise unlawful, its application in that manner violates
the Supremacy Clause of the United States Constitution, and is thus barred by
federal preemption.
Consequently, the Motions are granted, and the criminal trespass
complaints against all defendants are dismissed, including those against
defendants who did not file such motions. As to the complaints for other
charges, the parties are requested to contact the court in order to schedule trial
dates, at which time the court will also consider the pending motions to suppress
and objections, which require testimony before rulings can be made.
SO ORDERED.
Date: August 12, 2005
L. Phillips Runyon Ill
Presiding/Acting J ustice
