New Kansas law meant to target human smuggling raises questions, concerns

Published: Jun. 12, 2023 at 5:23 PM CDT
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WICHITA, Kan. (KWCH) - On July 1, Kansas will have two new crimes in the law meant to target human smuggling, one of which is a source of concern for immigration advocates and members of the Latino community. That concern is about the consequences of the law on people or families who provide support or resources to people who are undocumented.

Human Smuggling Law Confusion

Immigration rights advocates are warning the law creates conditions for racial profiling and leads to questioning of immigration status. The law takes effect next month following the Kansas Legislature’s veto override in April. Between then and now, numerous posts shared online have spread inaccurate information about the law. Legal experts are working to clear the confusion.

Immigration attorneys Sarah Balderas with Balderas Law Group and Valeria Carbajal with Carbajal Law are working to help clients understand the soon-to-be law, House Bill 2350, and calm some of the fear it’s creating. They’re hearing from clients and the larger community.

“I recently attended a community event where a lot of immigrants went and voiced their concerns about it, and some people were saying they were even afraid to leave their homes because they didn’t know what was going to happen. They’re worried about taking their kids to school, how children, how they will be affected if they’re U.S. citizens and their parents are undocumented,” Carbajal said.

“A lot of people are freaking out about it,” Balderas said. “It’s actually really good that people are paying attention to the laws that are being passed.”

Balderas and Carbajal posted videos online in English and Spanish to help explain the law based on their analysis and mitigate some of the concerns. They’re trying to help people with questions after seeing social media posts with incorrect information or sharing a version of the bill from earlier in the process, which was harsher.

“All the videos that are going around online, on TikTok, they’re just snippets. They don’t have a lot of time to actually delve deep into what everything means, and unfortunately, things move so fast, especially this law just moved very fast that people didn’t even realize there’s actually a new version that was actually the one that passed,” said Carbajal.

A main point the legal experts are working to help their clients understand is that in order for a person to be charged with the crime of human smuggling, or “the intentional transporting, harboring or concealing of an individual,” there has to be proof on three points: that there was transporting, harboring or concealing of an individual; knowledge of that the person being transported entered the U.S. illegally; there being a financial benefit or something of value; and, knowledge that the person transported is being exploited for the financial gain of another.

“That’s the first thing we look for is there an “and” or an “or” in there. There’s an “and” which means that number one, two and three all have to happen in order for someone to be convicted of it. So, we’re looking at more specific situations where someone is getting exploited, getting taken advantage of. The person who is “helping” this undocumented person is receiving some sort of financial benefit, and they know that there’s some sketchy stuff going on,” said Balderas.

Immigration rights advocates said part of the issue is the language in the law leaves a lot of questions about enforcement and interpretation.

“The ambiguity and the broadness even starts from the standpoint of the law enforcement officer. How do they know to interpret it if even the attorneys that are supposed to be protecting these people are also, we’re all trying to figure it out.” Carbajal said, “Because it is so broad, we just don’t know whether something of value, for example, is part of the law; what does that even mean? Does that only mean money? Does that mean services? It’s too broad to even know how it’s going to impact anybody because we just don’t know how it’s going to be enforced.”

‘We talked to other attorneys where who go, ‘I can’t even see anybody prosecuting this because it’s so vague,’ and a lot of people say it’s unconstitutional,” Balderas said. “We’ve learned in the immigration world when someone passes a law, the law is going to be challenged.”

In the immigrant community, there are also concerns about the overall ramifications of this law.

Balderas said, “A lot of people are concerned it will lead to racial profiling during traffic stops. People are afraid it’s going to lead to traffic stops that are unconstitutional, where the police officer is going to ask more questions than they’re supposed to. It’s just causing a lot of fear.”

Kansas Rep. Stephen Owens, R-Hesston, also shared a video on the law. He said while the state has laws on the books for human trafficking, it doesn’t have anything for the crime of human smuggling.

“The person that could be traveling with 10 or 20 illegal immigrants illegally and putting them into a situation where they can be exploited. What this law attempts to fix is making sure those smugglers are held accountable,” said Rep. Owens.

He added that three-part test for someone to be charged with human smuggling gives clear direction to law enforcement in the state. Rep. Owens said the case of someone’s immigration status would still be handled by the federal government.

“I want to be very clear to our Hispanic and Latino community; this is not an attack on them. This is not an attack on illegal immigrants. We are not doing what Florida has done, in essence, made illegal immigrants further illegal in the state of Kansas. That is still a federal issue‚” he said. “What we’re trying to do is address the smuggler and taking these very vulnerable people in society and putting them in a situation where they can be exploited.”

Before this law takes effect, Balderas and Carbajal are also working to make sure people know their rights should someone, for example, is pulled over, advising those impacted to cooperate but knowing they don’t have to share information if they’re not asked.

“One thing Valeria and I agree on is just cooperation. It’s very important to cooperate with police officers, but you don’t want to overdo it to where you’re offering up information that the officer hadn’t asked for,” said Balderas. She added, “Give them your name. If they ask for an id, the driver provides some sort of id, but anybody else in the car, if there’s no reason for an officer to be suspicious of criminal activity going on with anybody else in the car, then I don’t see a reason why a police officer needs to be asking any questions to the rest of the people in the car other than the driver.”

“Regardless of anybody’s immigration status, we are protected under the Constitution. So, if they are arrested, Miranda Rights apply. You can also ask am I arrested, or am I free to go? That’s also key as well to see whether you need to supply extra information or not. It’s also important never to lie,” said Carbajal.

Miranda Rights provide people the right to remain silent or ask for an attorney.

Carbajal said to try to keep things as calm as possible. She said if someone is undocumented and they haven’t seen an immigration attorney, to reach out to get an assessment of their situation if there is something that can be done.

“We just have to wait and see what’s going to happen, and attorneys can’t predict everyone’s future,” Balderas said.

Over the last few weeks, the Kansas Hispanic and Latino American Affairs Commission and other immigration rights groups have been hosting educational and civic-engagement workshops about the law, explaining to people their rights under the constitution. Tuesday, the Wichita Police Department and the Sedgwick County Sheriff’s Office will hold a press conference on the law.