Organizations with long histories of defending migrants recently joined a critical challenge to Colorado’s human smuggling crime that is pending before the Colorado Supreme Court. The organizations argue that Colorado’s statute is preempted by federal law and thus unconstitutional. Brief for National Immigration Law Center et al. as Amici Curiae Supporting Petitioner, Fuentes-Espinoza v. People, 2014 WL 1190061 (Colo. 2014).
Bernardino Fuentes-Espinoza was convicted of violating Colorado Revised Statute § 18-13-128 which punishes assisting migrants with entering remaining in, or traveling through the United States or Colorado by as much as twelve years imprisonment. Fuentes-Espinoza was convicted of smuggling seven people. The prosecution did not establish that any of the seven were in the United States without authorization. People v. Fuentes-Espinoza, 2013 COA 1, ¶ 1 (Colo. Ct. App. Jan. 17, 2013). The Colorado Court of Appeals, the state’s intermediate appellate court, upheld the conviction, rejecting Fuentes-Espinoza’s arguments that the smuggling statute was preempted by federal immigration law and that it required the state to prove beyond a reasonable doubt that the people allegedly smuggled were in the United States without authorization. Id. at ¶ 2.
Over a year later, the Colorado Supreme Court granted certiorari to Fuentes-Espinoza. The court indicated that it will address the following issues:
- Whether the Immigration and Nationality Act preempts Colorado’s human smuggling statute and the trial court therefore was without jurisdiction.
- Whether the court of appeals erred in holding that the appellant waived the claim that the Colorado human smuggling statute is preempted by the Federal Immigration and Nationality Act.
- Whether Colorado’s human smuggling statute requires the prosecution to prove that the defendant was, in fact, engaged in smuggling humans in violation of the immigration law.
Fuentes-Espinoza v. People, 2014 WL 1190061, *1 (Colo. March 24, 2014).
Instead of tackling on these issues, the civil rights organizations that stepped in as amici last week honed in on the state statute’s interaction with federal immigration law. Federal law, they claim, preempts Colorado’s statute, thus Fuentes-Espinoza’s conviction ought to be dismissed.
A robust body of U.S. Supreme Court law exists discussing preemption. In general, the Court has identified three ways in which a state or local law can be preempted by a federal law: express preemption, implied conflict preemption, or implied field preemption. Amici claim that Colorado’s statute treads on federal prerogatives in multiple ways. Frankly, they present compelling claims.
There is no question that Congress has heavily legislated in the realm of immigration law. Though much of this legislation addresses admission and potential removal from the United States, INA § 274 focuses on “bringing in and harboring certain aliens.” Within the section, the INA threatens anyone who “transports, or moves or attempts to transport or move” any unauthorized migrant with criminal punishment. INA § 274(a)(1)(A)(ii). This is strikingly similar to the conduct that Colorado targets.
Importantly, the two statutes differ dramatically when it comes to potential punishment. While the federal statute presents the possibility of up to five years imprisonment if the defendant receives no “commercial advantage or private financial gain” and up to ten years imprisonment if she does. INA § 247(a)(B)(i), (ii). The Colorado statute, in contrast, provides for up to twelve years imprisonment. This different is certainly relevant because the Supreme Court has made it quite clear that a difference in punishment between otherwise similar statutes can have the effect of disrupting federal priorities.
Relatedly, the Colorado statute punishes conduct that the federal statute does not. The INA requires that whatever transporting that happens be done “knowing or in reckless disregard of the fact” that a migrant’s presence in the United States is in violation of federal immigration laws. The state statute does not impose such a limitation.
A number of courts have addressed similar statutes enacted by other states and concluded that federal law preempts these state attempts to criminalize immigration-related activity. Only time will tell how–and, as oral argument hasn’t yet been set, when–the Colorado Supreme Court decides, but the amici who joined in on Fuentes-Espinoza’s behalf can certainly be said to have helped his cause.
[Update (February 13, 2015): Here is a copy of the opening brief filed by Fuentes-Espinoza’s attorney.]
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