Bill Description: House Bill 83 would criminalize illegal entry into Idaho from a foreign nation and illegal reentry by a previously deported alien as secondary offenses.
Rating: +1
NOTE: House Bill 83 is related to House Bill 11, introduced earlier this 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 83 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 or through another manner of lawful 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."
House Bill adds a new provision, which is not present in House Bill 11, introduced earlier this session, that says, "Law enforcement officers may enforce the provisions of this section only when a person is detained or investigated for suspected commission of an independent crime under title 18, Idaho Code, excluding this chapter."
It would be "an affirmative defense to prosecution" under this law if the alien was not "investigated for, charged with, or convicted of committing the independent crime for which the defendant was detained or investigated."
In other words, someone would have to commit a second crime (not just an infraction) before he or she could be charged with illegal entry or illegal reentry. Even if a known criminal alien who had been deported multiple times was discovered, he could not be charged under this law unless he committed an additional crime.
This change makes House Bill 83 significantly less effective than House Bill 11.
It would also 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 not fall under this affirmative defense. Additionally, the affirmative defense would not apply to those covered by "any program not enacted by the United States congress that is a successor to or materially similar" to DAPA.
House Bill 83 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 an alien receiving 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, is not charged with another offense that is punishable as a felony, and had their fingerprints checked against all relevant criminal databases.
Chapter 90, Title 18, Idaho Code, would 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.
These new chapters are intended to allow Idaho greater latitude to enforce immigration restrictions and expel criminal aliens, which the federal government has long failed to do. Unfortunately, by treating these crimes as secondary offenses, the state would hobble its enforcement in much the same way the federal government has done, effectively disallowing any wide-scale efforts to find and expel illegal aliens.
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