PHOENIX - A judge is considering a challenge to an Arizona law creating the state crime of immigrant smuggling, an offense that has drawn about 100 prosecutions and is criticized because it has been used mostly on the customers of smugglers.
Attorneys for some of the first 48 immigrants charged as conspirators under the law argued that the Legislature wanted to target smugglers and never intended it to be used against people like their clients, who are accused of paying to be sneaked into Arizona, the nation's busiest illegal entry point.
"This would completely erase the distinction," Carlos Holguin, an attorney for one of the immigrants, said at a court hearing Tuesday.
The defense lawyers also called the 9-month-old law an unconstitutional attempt by the state to regulate immigration, which they contend is under the exclusive control of the federal government.
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Prosecutors said the Legislature didn't prohibit the customers of smugglers from being prosecuted under the new law and argued that it was on sound constitutional ground.
Maricopa County Superior Court Judge Thomas O'Toole said he would issue a ruling at a later date.
While Congress has prevented states from enacting laws in some facets of immigration, such as penalties for hiring illegal immigrants, federal lawmakers have let states pass laws in other areas, such as human smuggling, prosecutors said.
"Clearly, there is room for state laws," said prosecutor Sally Wells.
The Legislature passed the law amid growing frustration over the state's porous 375-mile border with Mexico and the huge health care and education costs for illegal immigrants and their families.
Last year, Maricopa County Attorney Andrew Thomas wrote a legal opinion saying illegal immigrants suspected of using smugglers can be charged as conspirators to the crime. The lawmaker who proposed the law has said it was intended to apply only to smugglers.
The 48 immigrants were charged as conspirators to human smuggling after they were discovered in a pair of furniture trucks in March about 50 miles west of Phoenix. A handful of the immigrants have pleaded guilty to solicitation to commit human smuggling, a lower-tier felony that carries up to a year in jail.
The requests to throw out the cases were made by three of the remaining immigrants, though the charges against the others in the case would be thrown out if the judge decides in their favor.
Dressed in black and white jail jump suits and wearing headphones, the immigrants sat in the packed courtroom's jury box, listening stoically to translators.
While Thomas has defended his interpretation as necessary for holding the customers of smugglers accountable, critics said his approach is overreaching, would be expensive if applied on a wide scale and was expected to be overturned.
Peter Schey, attorney for an immigrant, said if he prevails and Thomas continues to use his interpretation, he will consider filing a federal lawsuit to prevent the policy's use until appellate courts decide the issue.
The law's use has been limited mostly to Maricopa County, the state's most populous county and a hub for smugglers transporting illegal workers across the country.
Authorities elsewhere in the state have found it hard to hold illegal immigrants who are witnesses to the crime when they haven't been accused of working as smugglers or charged with state crimes.
Another problem is that some local authorities don't have enough money or employees to enforce the law, which provided no extra funding.
The law inspired Thomas, who campaigned on a platform of getting tough on illegal immigration, and Maricopa County Sheriff Joe Arpaio to create special units devoted to fighting migrant smuggling. The sheriff has assigned 250 members of his volunteer posse to find and arrest illegal immigrants.
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