HB 1642-FN – AS INTRODUCED
2006 SESSION
04/03
HOUSE BILL 1642-FN
AN ACT relative to criminal penalties and forfeiture for activities in support of illegal immigration.
SPONSORS: Rep. Ulery, Hills 27; Rep. Renzullo, Hills 27; Rep. Buhlman, Hills 27; Rep. Mirski, Graf 10
COMMITTEE: Criminal Justice and Public Safety
This bill prohibits illegal immigration in New Hampshire and requires seizure of all conveyances used in the commission of a violation.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
06-2104
04/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Six
AN ACT relative to criminal penalties and forfeiture for activities in support of illegal immigration.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Illegal Immigration. Amend RSA by inserting after chapter 651-D the following new chapter:
CHAPTER 651-E
651-E:1 Entry Prohibited. An actor shall be guilty of a class B felony if:
I. Knowing that a person is an alien, he or she brings to or attempts to bring to New Hampshire in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Director of the United States Citizenship and Immigration Services, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien.
II. Knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in New Hampshire in violation of law, transports, or moves or attempts to transport or move such alien within New Hampshire, in furtherance of such violation of law.
III. Knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in New Hampshire in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.
IV. Encourages or induces an alien to come to, enter, or reside in New Hampshire, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of the law.
651-E:2 Failure to Receive Prior Authorization for Entry.
I. Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in New Hampshire, brings to or attempts to bring to New Hampshire in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien, shall be guilty of a class A misdemeanor.
II. A person who violates the provisions of paragraph I for the purpose of commercial advantage or private financial gain shall be guilty of a class B felony.
III. A person who violates the provisions of paragraph I or II and who fails to present an alien upon arrival immediately to an appropriate immigration officer at a designated port of entry, shall be guilty of a class B felony.
651-E:3 Seizure of Conveyances.
I. Any conveyance, including any vessel, vehicle, or aircraft, which has been or is being used in the commission of a violation of this section shall be seized and subject to forfeiture, except that:
(a) No conveyance used by any person as a common carrier as defined in RSA 375-B:2, IV in the transaction of business as a common carrier shall be forfeited under the provisions of this section unless it shall appear that the owner or other person in charge of such conveyance was a consenting party or privy to the illegal act.
(b) No conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States or of any state.
II. Any conveyance subject to seizure under this section may be seized without warrant if there is probable cause to believe the conveyance has been or is being used in a violation of this section and circumstances exist where a warrant is not constitutionally required.
III. Whenever a conveyance is forfeited under this section the attorney general may:
(a) Retain the conveyance for official use;
(b) Sell the conveyance, in which case the proceeds from any such sale shall be used to pay all proper expenses of the proceedings for forfeiture and sale including expenses of seizure, maintenance of custody, advertising, and court cost;
(c) Require that the commissioner of the department of revenue administration take custody of the conveyance and remove it for disposition in accordance with law; or
(d) Dispose of the conveyance in accordance with the terms and conditions of any petition of remission or mitigation of forfeiture granted by the attorney general.
651-E:4 Forfeiture Actions.
I. In all suits or actions brought for the forfeiture of any conveyance seized under this chapter, where the conveyance is claimed by any person, the burden of proof shall lie upon such claimant, except that probable cause shall be first shown for the institution of such suit or action. In determining whether probable cause exists, any of the following shall be prima facie evidence that an alien involved in the alleged violation had not received prior official authorization to come to, enter, or reside in New Hampshire or that such alien had come to, entered, or remained in the United States in violation of state or federal law:
(a) Records of any judicial or administrative proceeding in which an alien’s status was at issue and in which it was determined that the alien had not received prior official authorization to come to, enter, or reside in New Hampshire or that such alien had come to, entered, or remained in the United States in violation of state or federal law;
(b) Official records of the United States Citizenship and Immigration Service or of the United States Department of State showing that the alien had not received prior official authorization to come to, enter, or reside in New Hampshire or that such alien had come to, entered, or remained in the United States in violation of state or federal law; or
(c) Testimony, by a federal immigration officer having personal knowledge of the facts concerning the alien’s status, that the alien had not received prior official authorization to come to, enter, or reside in New Hampshire or that such alien had come to, entered, or remained in New Hampshire in violation of state or federal law.
651-E:5 Authority to Arrest. No officer or person shall have authority to make any arrests for a violation of any provision of this chapter except state and local law enforcement officers and other persons designated by the attorney general under a memorandum of understanding with the United States Bureau of Citizenship and Immigration Services.
2 Effective Date. This act shall take effect January 1, 2007.
LBAO
06-2104
12/2/05
HB 1642-FN - FISCAL NOTE
AN ACT relative to criminal penalties and forfeiture for activities in support of illegal immigration.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, and Departments of Justice and Corrections state this bill may increase state expenditures by an indeterminable amount in FY 2007 and each year thereafter. There will be no fiscal impact on state, county, and local revenue or county and local expenditures.
METHODOLOGY:
The Judicial Branch states this bill would establish criminal penalties and forfeitures with respect to activities in support of illegal immigration. The Branch states judicial, clerical, juror, and bailiff costs per charge total $35.63 for a violation, $36.71 for a class B misdemeanor, $50.29 for a class A misdemeanor, and $670.21 for a class B and A felony. Enhancing charges would increase costs to the Branch accordingly. The Branch is unable to determine the exact fiscal impact at this time.
The Judicial Council assumes that any cases arising from the enactment of this bill for which the Indigent Defense Fund may be liable, will in the first instance, be handled by the public defender or contract attorney who accepts these cases on a fixed fee basis of $275 per misdemeanor or $756.25 per felony charged. If an assigned counsel attorney must be used, the hourly rate of $60 with a fee cap of $1,000 for a misdemeanor or $3,000 for a felony will apply. If a motion to exceed the fee cap is approved and/or “services other than counsel” are approved, these will also be chargeable to the Indigent Defense Fund. Any charge within the criminal justice system, committed by a juvenile, will be compensated within the flat fee contract system of $275 per case through disposition, plus $206.25 for each and every review hearing following disposition. Assigned counsel will be at the $60 per hour rate with a fee cap of $1,200. The fee cap may be waived upon motion filed with the court and approved in advance. Any case where a defendant has been found guilty may also result in appeals to either the superior court or to the supreme court, which would have a cost implication for Indigent Defense expenditures made by the State. The Council is unable to determine the exact fiscal impact at this time.
The Department of Justice states this bill would create several misdemeanor and felony offenses relating to illegal immigration, and also provides for the Attorney General to seek forfeiture of any conveyances used to transport illegal aliens within the State. The proposed new criminal offenses would be prosecuted by the county attorneys, and any appeal to the State Supreme Court from a conviction obtained by a county attorney would be handled by the Appellate Unit of the Criminal Justice Bureau. The Department estimates it would handle between two to three appeals per year, which would involve attorney and secretarial time. The Department states pursuing a forfeiture action, if actually litigated, would involve paralegal and attorney time. In addition, costs would include service of notice to the owner of the property and/or newspaper classified ad in a statewide paper, and storage of the conveyance while the forfeiture petition is pending. The Department states the exact fiscal impact cannot be determined at this time.
The Department of Corrections states the number of individuals that will be sentenced under this legislation cannot be predicted. The average annual cost of incarcerating an individual in the general prison population was $28,143 in FY 2005.