Trespass Arrests of Foreigners Face Challenge

A judge heard lawyers for an area police department argue Friday that stopping illegal immigrants in their vehicles and arresting them for criminal trespass was a novel and legally valid way to promote public safety and protect national borders.

“What the state is doing in this case, we are trying to create a situation where within our community, police are able to perform their function of protecting public safety by enabling the citizenry to know who is among them,” said prosecutor Brenda Hume, representing the police chief of the small town of Hudson.

But lawyers for seven undocumented immigrants -- all from Latin America -- countered that immigration laws were federally determined and that state and local authorities could not establish policies about who could enter or remain in a state or municipality.

“It is not the role of the local police or state police to create and/or enforce state laws that conflict with [federal] immigration laws, because their actions can have a negative effect on national security,” defense lawyer Mona T. Movafaghi said.

Jaffrey-Peterborough District Judge L. Phillips Runyon III said he would issue a written decision on the request by the immigrants’ lawyers to dismiss all charges.

The seeds for the case were sown when Police Chief W. Garrett Chamberlain of New Ipswich, another small town in this region of southern New Hampshire, stopped a van for speeding last summer. Inside, Chamberlain found 10 men from Ecuador. All said that they did not have valid immigration documents.

Chamberlain said he was concerned about threats to domestic security when he called the U.S. Immigration and Customs Enforcement agency -- and was told to let the men go. He then met with a local prosecutor to try to find a legal basis to pursue illegal immigrants.

They decided to invoke a New Hampshire law that states that “a person is guilty of criminal trespass if, knowing he is not licensed or privileged to do so, he enters or remains in any place.”

Chamberlain made his first arrest using the tactic in April, when Jorge Mora Ramirez’s car broke down along a New Ipswich road. Police said Ramirez produced false identification and a Mexican driver’s license.

Soon Police Chief Richard Gendron of nearby Hudson followed suit. His officers used the trespass law to cite at least eight people. All were young men working as roofers or landscapers.

At a preliminary hearing in June, Runyon said he would rule on a request to dismiss the Ramirez case after he had heard initial arguments from the Hudson defendants.

Police dropped charges against one man arrested in Hudson without comment. Six defendants appeared before the judge Friday, but a seventh inadvertently went to a courthouse in a different city. None of the defendants speaks English.

Several of the men were represented by lawyers hired by the Mexican government, whose consul general in Boston declared Friday’s proceeding “legally invalid, discriminatory and a violation of human rights.”

At the courthouse here, Consul General Porfirio Thierry Munoz Ledo also accused the two New Hampshire police chiefs of usurping federal authority.

Defense lawyer Randall A. Drew agreed, telling Runyon that only the federal government could determine who was “licensed or privileged” to enter a state. Drew said Congress had created “an entire set of laws” to cover immigration, and that having a state exercise such power was “not justifiable on a constitutional basis.”

Drew said there was no record of state legislators discussing immigration when they amended criminal trespass laws to broaden domestic violence statutes.

But state Rep. Andrew Renzullo said the Republican immigration caucus was considering measures to codify the trespass law for use in immigration cases. Renzullo praised the two police chiefs for their inventive application of the existing law.

“I would hope this is a precedent,” he said. “I would hope it gives encouragement to other states to take on this issue, because the federal government isn’t doing the job.”

The population of New Hampshire is 96% white. The 424-member state House of Representatives has two Latino members.

“According to our data, there are only around 2,500 illegals in New Hampshire,” Renzullo said. “But there are 87,000 in Massachusetts, which is 10 miles away.”

Claire Ebel, executive director of the New Hampshire Civil Liberties Union, labeled the case “an embarrassment to the state of New Hampshire.”

Calling the charges “a thin disguise for racial profiling,” she said: “I am a 62-year-old white lady. If my car had broken down, or if I had pulled over to use my cellphone, I would not have been arrested for trespassing.”