TOPEKA, Kan. — An anti-smuggling law in Kansas went into effect July 1. The law makes human smuggling a felony, but the legislation's wording is raising concerns among immigration advocacy groups.
KSHB 41 is going 360 on the topic, hearing from:
- Those who worry about the law's impact
- Lawmakers and law enforcement who backed the new law
- Immigration attorneys and agencies that say the law violates a person’s legal rights
- A police agency tasked with enforcing the law
- Kansas Attorney General Kris Kobach
LEE LA VERSIÓN EN ESPAÑOL DE LA HISTORIA AQUÍ
Law's background
House Bill 2350was introduced earlier this year to the Senate Judiciary Committee by Rep. Carrie Barth (R-District 5) and Rep. Rebecca Schmoe (R-District 59). The law makes it a felony for anyone to transport or harbor a person, with knowledge the individual is undocumented, for financial gain or exploitation.
During her testimony in support of the bill, Barth said it was needed in order for Kansas law enforcement to do their job since there was no specific law in Kansas regarding human smuggling.
In the initial hearing, the bill received support from the Kansas Attorney General's Office and several law enforcement agencies. But opponents like the Kansas State Board of Indigents' Defense Services (BIDS), made up of Kansas public defenders, called for the bill's rejection.
The legislative committee told lawmakers in open testimony that Kansas courts are not equipped to handle immigration issues and stated the law infringes due process rights.
Ultimately, the bill made its way through the Kansas Legislature and was vetoed by Gov. Laura Kelly, who called the bill "rushed." However, the governor's veto was overruled by the Republican supermajority.
Dreamer
Yazmin Bruno has called Kansas home for her entire life. The Mexican-native moved to the United States at the age of 3, citing violence seen in Tijuana as the reason behind her family's move.
Bruno is undocumented but was granted "Dreamer" status two years ago. She currently resides in Kansas City, Kansas.
With help from school counselors and advocacy organizations, like Advocates for Immigrant Rights and Reconciliation (AIRR), she was able to attend college.
"I love Kansas. This is home, and I can't imagine living anywhere else other than here in KCK," Bruno explained.
But day-to-day life is a challenge for Bruno due to her legal status. When meeting with KSHB 41 to tell her story, Bruno asked to conduct interviews at a public park.
She told crews this offers her a sense of anonymity, especially when talking about her journey to the U.S.
"There is a lot of fear when being undocumented. You carry that," Bruno said. There's a lot of shame. You hear it from your community sometimes that immigrants are doing terrible things. I won't repeat them, because they're not true, but then sometimes you start to believe it as well, like, am I really doing this terrible thing? Or am I seeking a better life? Or am I seeking my freedom?"
Bruno said the legislature passing the "dangerous" anti-smuggling law adds to the challenge she already feels.
Since her family has mixed immigration status, she worries she will be breaking the law whenever she's offering some of her family members transportation. She also fears the application of the law could lead to racial profiling.
"We have a very large police system here in KCK, a lot of the time, it makes people feel uncomfortable or unsafe when the police is present," Bruno said. "I think it's a very dangerous law. I would say that it is already a very complicated system to [be undocumented] and to have a relationship with the police department within our law enforcement."
Lawmaker who supported the bill
HB 2350 was sent to Gov. Laura Kelly's desk less than a month after its initial hearing. Rep. Timothy Johnson (R-District 38) was one of the 85 members of the Kansas House who voted in favor of overriding the governor's veto.
"I'm in total disagreement with Gov. Kelly. She did not do her research, clearly, and didn't meet with the law enforcement community," Johnson said. "We know very much that this does not impact just individual illegal aliens that are here hardworking, and I know that personally, and this is not intended for them in no way, shape or form."
Johnson said he's confident in the law's application, citing safeguards are in place because the law states financial gain or exploitation of an undocumented person must occur during transportation or harboring.
The Republican lawmaker argues the state had to step in to keep Kansas safe after lawmakers heard from various agencies, including the Kansas Attorney General's Office, about the lack of a smuggling law in Kansas.
"I'm very comfortable with it," Johnson said. "It meets what law enforcement wanted, it's going to work and it is not going to impact my friends and the people that I know that may not have complete status at this time. It's not going to force employers to get rid of people, just for those types of situations. This is a fair law."
Franklin County sheriff
During the initial hearing for the bill, Rep. Barth, whose jurisdiction covers Franklin County, testified in front of the Committee on Corrections and Juvenile Justice that the push for the bill came after meeting with Franklin County Sheriff Jeff Richards.
Barth testified she was informed Interstate 35, which runs through Franklin County, has become a "gateway for human smuggling and human trafficking."
In an interview with the sheriff, Richards told KSHB 41 the number of smuggling encounters the county has seen is tough to track since alleged perpetrators were charged with other crimes.
However, Richards recalled last year his department assisted in a pursuit that started in Lyon County involving a female smuggler after law enforcement agencies received numerous 911 calls from people inside the vehicle who feared for their safety.
"That driver did pull over eventually, and everyone jumped out and ran," he said. "She took off again, ended up carjacking a vehicle at knifepoint, rammed one of our [patrol] cars head-on, so it created a hazardous situation for the public."
Richards said smuggling isn't a daily occurrence in Franklin County, but he stated his department's encounters with smuggling victims led to his push in having a smuggling law.
While Kansas previously passed a human trafficking law, Richards explained the law wasn't addressing the crime of smuggling and fell short of protecting smuggling victims.
"Well, for someone to be a victim of human trafficking, there has to be threats, coercion, something like that," he said. "When a person has been smuggled, they have actually asked, or most of the time paid, someone to take them from Point A to Point B, but the circumstances that they endure, they aren't paying and signing up necessarily for that type of treatment."
Richards said guidance is expected to be provided by the Kansas Attorney General's Office on how to enforce the law.
KCK police chief
One of the most diverse cities in the state of Kansas is Kansas City.
Census data shows more than 30% of the population is Hispanic.
In a bilingual video posted on social media, a KCK police captain discussed concerns felt among his community when HB 2350 was being heard. The captain also stressed the law doesn't change the way the department does its job, a sentiment echoed by Chief Karl Oakman in an interview with KSHB 41.
"Immigration is not a local police issue. Human smuggling, as we've seen in the news, is a very dangerous thing for those individuals who are being smuggled, so I think the health and welfare of those individuals are the most important thing when it comes to the police department," Oakman said.
Oakman told KSHB a smuggling law already existed at a federal level and the enforcement of this new law would change who the department reports to — answering to the county prosecutor rather than the federal government.
The chief said the occurrence of smuggling in his city is rare, especially with the Kansas Highway Patrol taking care of most smuggling-related crimes.
"The laws are already in place at the federal government, and we don't go around profiling or looking for human smugglers, that's just not something that we have the time for," Oakman said. "Now, if we get a complaint, we will investigate it just like any other crime."
Immigration advocate
The American Immigration Council reports there are nearly 68,000 undocumented people living in Kansas, a group that represents $1.2 billion in spending power.
Advocacy groups and immigration attorneys believe the law is confusing. For example, they worry about volunteers providing rides or families with mixed immigration status, which leads to the ultimate question: could people be charged with a level 5 smuggling felony if they're helping out people who are undocumented?
"It was too fast, and it was pushed through with very hidden language that most people who don't do this work on a daily basis will probably not see as anti-immigrant," said Karla Juarez, executive director of AIRR.
AIRRhas several programs that serve the undocumented community in Kansas, including an accompaniment program that helps transport clients, like asylum seekers, to their immigration appointments.
Juarez fears the application of the law would mean AIRR volunteers are in violation. In the meantime, the organization has been in contact with immigration attorneys and is holding seminars throughout Kansas to educate people on their rights while stressing to volunteers the importance of continuing to reject any money for their services.
"We have heard and we have created reporting forum where if they feel like they've been discriminated under this law or have had an issue, that they should report it," she said. "And we have commitments through partner organizations that we're working closely with to follow up on that report and hopefully respond in some way, but we haven't heard anything yet."
At this time, Juarez said her organization's reporting system hasn't seen any reports regarding the state's newest law, but clients have expressed concern and have changed their daily routines until more information is available.
"They are scared to come out and do things because of their status now. This law really caused a lot of fear among the community," Juarez said. "We've had people cancel their doctor's appointments, their school appointments because they're so fearful of this law."
Immigration attorney
Immigration attorney Angela Ferguson, with Austin & Ferguson, believes the core issue of the law is that it includes an alleged victim's immigration status as part of its language, which she said goes against a person's due process rights and conflicts with federal immigration law.
"The federal government is in charge of who comes into its borders, and I believe that the Kansas law overreaches," Ferguson said. "Everyone's getting calls about the fear of our clients or potential clients being in Kansas, living in Kansas or driving in Kansas."
Ferguson said her law firm has established a reporting system as well and worries the law's vagueness means it's up to local law enforcement to make determinations on someone's immigration status.
"It is completely up to the discretion of an officer to investigate, to search, to charge and to the discretion of a prosecutor to bring the person to court, but it's going to be very difficult to prove because it is so broad and vague," she explained. "The Kansas state law is overbroad and doesn't follow the federal law. We have federal law for a reason so that we have conformity amongst the states."
Challenging the law in front of the Kansas Supreme Court would mean a violation would need to happen, according to Ferguson.
"People will have a lot of expenses — they may be detained for an indefinite period of time, they may be required to pay a high bond for this potential felony charge, so the costs are going to be real," Ferguson said. "Employers are going to lose their employees, and I already have people that tell me they're moving out of Kansas."
As Ferguson works with other immigration attorneys to gather additional information on this law, she said they are reminding people who could be impacted of their rights.
"Every person living in the United States is covered by the Constitution, so you have a right from unlawful search and seizure," the attorney explained. "Any person who is stopped or questioned has the right to ask for a warrant, or they should refuse permission to search. They should not answer questions without their lawyer being present, and they should ask for a lawyer. This is a potential felony charge, so if they're being detained, they need to ask for a free court-appointed attorney."
Kansas AG
KSHB 41 reached out to Kris Kobach's office for an on-camera interview several times. An on-camera interview was initially set up, but a spokesperson for Kobach canceled due to a scheduling conflict.
Instead, the AG's office sent a statement.
"The U.S. Supreme Court has repeatedly held that the states play an important role in assisting the federal government in its enforcement of immigration laws, the Supreme Court also held that states may enforce their own laws that may have the effect of deterring illegal immigration," the statement said in part.
The Arizona State Law Journalnotes states have limited authority to encourage or deter immigration as immigration regulation is a federal power.
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The Spanish subtitles included in this story were translated by the UMKC School of Humanities and Social Sciences.
As part of KSHB 41 News' commitment to providing context and depth in our reporting, we're excited to share our latest project, which we're calling 360. This project takes stories and topics that our communities are talking about and explores different perspectives on the issue. You can be a part of the process by e-mailing your ideas and thoughts to us at 360@kshb.com.