Rancher sees benefit from a fence

BISBEE — Richard Hodges was driving his Jeep along International Road after 8 p.m. one night this past summer when he noticed an opening in the barbed wire fence along one side of his property.

He owns 372 acres near Bisbee Junction. The edge of his land is located on the border with Mexico. Fearing his cows might escape and cross the border, he stopped to close the hole in the fence.

He parked his vehicle so the headlights were shining on the fence. As he was mending the section of barbed wire, he was struck in the chest by a rock. He turned to step out of the way of the lights and he felt another rock whiz by his head.

He walked around to get in his Jeep and he heard rocks rain down on the canvas top of his Jeep. He went home.

“They wanted me to leave so they could conduct their illegal business,” he said.

His land is regularly crossed by illegal entrants and he strongly believes many of them are smuggling narcotics.

Hodges also has been shot at a few times over the years. He thinks it is unreasonable that he can’t stand on his own property without being threatened with injury or death.

“This is my place,” he said. “I inherited this from my grandparents. My great-grandfather homesteaded it. I’ve been out here all my life, except when I was in school and in the military.”

The Minuteman Civil Defense Corps is building a mile-long fence along one side of his property to divert the illegal traffic. He said the fence is a necessity.

The fence construction on Hodges’ property should be completed in the coming weeks. Chris Simcox, founder and president of MCDC, said he had intended for the work to be finished by now but it was delayed due to the weather and a lawsuit.

Jim Campbell, who donated $100,000 to MCDC to help build border fencing on private property in Cochise County, filed suit against the group for fraud and breach of contract in May in Maricopa County Superior Court. However, the lawsuit was dismissed in September.

Hodges said he is looking forward to the completion of the MCDC fence on his property. He noted a federal fence that will be built parallel to the Minuteman fence there won’t be finished until February or March.

Simcox said the MCDC fence building projects were the “impetus and catalyst” for getting the government to start building a border fence. President Bush signed The Secure Fence Act in October 2006.

Minuteman border fences have already reduced illegal crossings by 60 percent, and stopped all occurrences of high speed drug running along the heavily violated section of the border near Palominas, said Carmen Mercer, vice president of the group.

The group intends to continue to pressure the government to follow through with plans to build the full border fence, Simcox added.

The White House called The Secure Fence Act “an important step forward in our nation’s efforts to control our borders and reform our immigration system,” according to www.whitehouse.gov.

“This bill will help protect the American people. This bill will make our borders more secure. It is an important step toward immigration reform,” Bush said in a statement on Oct. 26, 2006.

The act authorized the construction of hundreds of miles of additional fencing on the southern border; authorized more vehicle barriers, checkpoints and lighting to help stop illegal entrants; and authorized the increased use of advanced technology, such as cameras, satellites and unmanned aerial vehicles, at the border.

The White House said “this act is one part of our effort to reform our immigration system,” but it made clear that additional work must be done. Congress has not passed a comprehensive immigration reform plan.

Ray Borane, the mayor of Douglas, said the border should be patrolled in order to protect the country, but a fence across the entire southern border is not the answer to the illegal immigration problem.

The government would need to build a fence on the scale of the Great Wall of China to prevent people from getting over it, Borane said. But, even then, they could still climb it with a ladder.

“The only way to be vigilant on a fence that is 2,000 miles long would be to have people stationed along it,” Borane said.

Hodges thinks the mile-long Minuteman fence on his property and the subsequent federal fence on the nearby border will force the drug smugglers to go a different way or find another location to drop off the narcotics.

He said the fences will help prevent people from entering his property. He is concerned about his cows. He doesn’t want people to damage or vandalize his water source or take baths in the cow tubs.

He is hopeful the fence will stop the illegal activity from interrupting his day-to-day life.

Jennifer Allen, executive director of Border Action Network, a human rights community organization that is opposed to building a border wall, said it is “absolutely understandable” for Hodges to not want the drug smugglers to cross his property.

But she cautioned that once the Minuteman fence on his land is complete, the drug smugglers will cross the border in a different location and the problem will be shifted to somebody else.

And when the federal fence is completed, things will only get worse. She said that making it more difficult to cross the border will cause the drug smugglers to be more highly organized and more heavily armed.

Hodges said he thinks the border fence is a significant part of the solution to the immigration problem.

Some sections of the border can’t be fenced, such as washes and rivers, due to the flow of water during the rain, he said.

“If you can limit the places where people can cross, then you can effectively control those places,” he said. “You can put up electronic sensors or station a man there.”

Over the next three days, Herald/Review reporter Jonathon Shacat is reporting on the discussion and some issues involved in building a border fence, as is being done in Cochise County.

• Monday: Some of the possibly good and bad impacts from building a border fence.

• Tuesday: Is a fence along the border the right solution? Groups discuss that topic.

. Congress has not passed a comprehensive immigration reform plan.

We passed comprehensive immigration reform years ago. It 's called the Federal Immigration and Nationality Act.

Federal Immigration and Nationality Act

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) "Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

· assists an illegal alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or · encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or · knowingly assists illegal aliens due to personal convictions. ·

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work.

It is unlawful to hire any individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. "Day laborers" or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the illegal alien labor.

The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.

An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.

Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.

It is illegal for nonprofit or religious organizations to knowingly assist an employer to violate employment sanctions, regardless of claims that their convictions require them to assist illegal aliens. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.

Encouraging and Harboring Illegal Aliens

It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any illegal alien who is in the United States in violation of law. Harboring means any conduct that tends to substantially facilitate an alien to remain in the U.S. illegally. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.

An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.

The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the illegal alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.

Enforcement

A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.

State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.

RICO —Citizen Recourse

Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, and can include nonprofit associations.

Tax Crimes

Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In addition to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.

Comment:

A comment and a published quote by Robert Gaffney, Attorney and County Executive of Suffolk County, LI, NY:

The statutory foundation of United States immigration law has always been the jurisdiction of the federal government, Congress and the federal courts. The preeminent laws concerning the employment of illegal aliens are found in the Immigration and Nationality Act (8 U.S.C. §~ 1101-1503), as amended by the Immigration Reform and Control Act of 1986 CIRCA).

The law states it is a crime to assist an illegal alien who lacks employment authorization by referring him to an employer, or by acting as his or her employer, or as an agent for an employer. 8 U.S.C.S. § 1324a(a)(1)(A) (Lexis 1997). Furthermore, it is unlawful to hire an individual for employment without complying with the employment eligibility requirements for every person hired. 8 U.S.C.S. § 1324a(a)(l)(B) (Lexis 1997). Moreover, conduct tending substantially to facilitate illegal aliens remaining in the United States illegally, where there is knowledge or a reckless disregard of an illegal alien s unlawful status, is a crime, with escalating penalties, encompassed within the provisions of 1324. 8 U.S.C.S. § 1324(a)(l)(A)(iii) (Lexis 1997); United States v. Kim. 193 F-3d 567 (2d Cir. 1999), are considered employees for purposes of immigration law.

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