- The Washington Times - Friday, August 12, 2005

A judge in New Hampshire said police cannot charge illegal aliens with criminal trespass, dismissing cases yesterday against eight aliens and ending what some had hoped could be a new approach to tackling illegal immigration.

In his written order, Judge L. Phillips Runyon III said immigration enforcement is a federal duty, and the towns of New Ipswich and Hudson in southern New Hampshire were encroaching on it.

“The criminal trespass charges against the defendants are unconstitutional attempts to regulate in the area of enforcement of immigration violations,” Judge Runyon wrote.

Police in the two towns had pulled the aliens over on traffic stops, and then charged them with criminal trespass after they could not prove they were in the country legally. The trespass law says someone is in violation “if, knowing that he is not licensed or privileged to do so, he enters or remains in any place.”

Lawyers for the police argued that local authorities weren’t trying to enforce immigration law, but rather were trying to protect residents from people who had no right to be where they were.

Judge Runyon disagreed, arguing the case essentially was about immigration because the state was asking the court to use federal standards for immigration status and then apply a local offense in addition to what the defendants would face under federal immigration law.

The judge said the series of penalties the federal government imposes for immigration violations are so complete that Congress meant to leave no room for states in immigration enforcement.

The lawyer for some of the illegal aliens said the decision is a victory for immigrants and immigration policy.

“Now, hopefully the defendants can return to living their lives normally,” said Randall A. Drew, who represented three illegal aliens.

Not all of the illegal aliens charged with trespass challenged the charges, but Judge Runyon dismissed the charges against them, too.

The judge said his ruling doesn’t mean state and local authorities cannot play a role in immigration. He said federal law has a process for local police to be deputized to help enforce immigration law.

Some members of Congress think that’s a good idea, and have introduced a bill to allow local police to detain illegal aliens on immigration charges and deliver them to immigration authorities.

Judge Runyon never said whether New Hampshire’s trespass law itself would have applied to illegal aliens. He said he didn’t have to reach a decision on that question, since the police actions were illegal for other reasons.

Some of the defendants still face charges on motor vehicle violations, for which they initially were stopped.