Bill Description: House Bill 11 would criminalize illegal entry and related offenses at the state level, allowing for enforcement even when the federal government fails to act.

Rating: +2

NOTE: House Bill 11 is similar to House Bill 753, introduced in the 2024 legislative session.

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

House Bill 11 would create Chapter 90, Title 18, Idaho Code, to criminalize an illegal alien entering the state of Idaho, saying, "A person who is an alien commits an offense if the person enters or attempts to enter this state directly from a foreign nation at any location other than a lawful port of entry."

A first offense would be a misdemeanor and a second or subsequent offense would be a felony.

Illegal reentry into Idaho by someone who had previously been deported would be a misdemeanor. It would be a felony under some circumstances including if the initial removal was "subsequent to a conviction for commission of two (2) or more misdemeanors involving drugs, crimes against a person, or both."

It would be "an affirmative defense to prosecution" under this law if the alien had been granted "lawful presence in the United States" or "asylum under 8 U.S.C. 1158" by the federal government. The defense also would apply if the alien's conduct does not constitute a violation of 8 U.S.C. 1325(a), which defines "improper entry by alien." Of note here is that this federal code makes improper entry a civil offense, while this bill would make it a criminal misdemeanor. 

Individuals covered by the "deferred action for parents of Americans and lawful permanent residents program" (DAPA) would be excluded from this affirmative defense. This exclusion would extend to those covered by "any program not enacted by the United States congress that is a successor to or materially similar" to DAPA. 

The bill says a defendant charged with or convicted of violating this law "shall not be eligible for deferred adjudication or a withheld judgment." 

This law is intended to allow Idaho greater latitude to enforce immigration restrictions that the federal government often refuses to enforce. 

(+1)

House Bill 11 would also create Chapter 63, Title 19, Idaho Code, which allows a magistrate or judge hearing a case under the newly created Chapter 90, Title 18, Idaho Code, to order the illegal alien "to return to the foreign nation from which the person entered or attempted to enter." 

An order could be created in one of two ways. If an illegal alien is convicted of violating Chapter 90, Title 18, Idaho Code, the judge "shall enter in the judgment in the case an order requiring the person to return to the foreign nation from which the person entered or attempted to enter." This order "takes effect on completion of the term of confinement or imprisonment imposed by the judgment."

Alternatively, prior to a conviction for violating Chapter 90, Title 18, Idaho Code, the judge may issue such an order if the illegal alien agrees to the order, has not previously been convicted of violating this chapter, and is not charged with another offense that is punishable as a felony. 

Chapter 90, Title 18, Idaho Code, will also contain a section that further criminalizes an illegal alien refusing to comply with a judicial order to "return to the foreign nation from which the person entered or attempted to enter." This crime would be a felony. 

Clarifying and expanding the role of the state judiciary in this process is necessary because federal courts often lack the will to expel even convicted criminal aliens. 

(+1)

Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency, accountability, or election integrity? Conversely, does it increase public access to information related to government activity or increase government transparency, accountability, or election integrity?

House Bill 11 would create sections 5-349 and 5-349A, Idaho Code, to provide civil immunity and indemnification for state and local government officials, employees, and contractors for their efforts to enforce the laws created by this bill. 

Exceptions are created for actions done "in bad faith, with conscious indifference, or with recklessness."

It is concerning when government officials try to shield themselves from liability. Such efforts limit the recourse individuals have when government violates their rights. In this case, the immunity and indemnification apply to causes of action (lawsuits) under both state and federal law. While immunity and indemnification could perhaps be justified under the principles of federalism, extending it to state law is more problematic.

While it is likely that most individuals arrested or prosecuted under this law would be non-resident aliens, it is also possible that U.S. citizens could be unjustly targeted, and the immunity and indemnification created by these sections limit these individuals should they seek to hold government actors accountable for misdeeds. 

There may be a benefit to protecting state government employees from the fear of federal civil rights lawsuits filed by allegedly aggrieved foreigners, but we must also be cautious not to overextend these protections such that they limit the rights and recourse of Idaho citizens.

(0)