Here’s what to know about newly enacted Kansas “anti-smuggling” bill
Opponents of the bill worry the law targets immigrants and gives police more discretion to discriminate.
Topeka, Kansas | April 28, 2023
By Stefania Lugli
Advocates for Latino immigrants expressed alarm after Republicans in the Kansas Legislature enacted a law against human smuggling over the objections of Gov. Laura Kelly. They fear it will be used to criminalize the acts of good Samaritans with hazy definitions of human smuggling and over-the-top charges.
The bill defines human smuggling as “intentionally transporting, harboring or concealing an individual into or within Kansas, when the person knows or should have known that the individual is entering into or remaining in the United States illegally.”
Two eastern Kansan legislators, state Rep.Carrie Barth of Baldwin City and state Rep. Rebecca Schmoe of Ottawa, both Republicans, introduced the legislation. It received support from several law enforcement entities, including the Kansas Bureau of Investigation, who said it would close a loophole. Proponents said it would allow people to be charged for moving people against their consent. But Kelly called the legislation a product of a “rushed process.”
Karla Juarez, executive director of Advocates for Immigrant Rights and Reconciliation (AIRR), said the bill’s language is purposely vague and confusing to give local law enforcement more power.
“The way I and other immigration attorneys have interpreted it is that the first portion of this new law, the human smuggling part, can hurt everyday things,” she said in an interview with Planeta Venus.
The bill punishes a person for human smuggling with a level 5 felony, and likely prison time, and a higher-level 3 felony for “aggravated” smuggling.
Juarez’s group has an accompaniment program where volunteers drive those who are undocumented to their U.S. Immigration and Customs Enforcement check-ins, immigration court dates or even to church on Sundays. This includes people who are undergoing the process for legal status. Juarez said her staff and volunteers have no right to demand a person’s legal status.
“Our volunteers know the people they’re helping are undocumented. So the way we interpret this bill is that anybody can be considered a human smuggler, even our volunteers, just because they’re driving them,” she said.
Gov. Kelly echoed a similar sentiment in her veto letter Tuesday, writing that an on-duty paramedic who transports an undocumented person to the emergency room could be subject to level-five felonies under the new law.
“That overcriminalization is unnecessary and shows that lawmakers haven’t considered the full impact of this bill,” Kelly wrote. “I agree immigration issues need to be addressed, but this bill will have unintended consequences, from decimating our agriculture workforce to allowing the state to encroach into Kansans’ personal lives.”
‘It gives police the discretion to really interpret however they want to’
HB2350 doesn’t specify who a “human smuggler” is beyond someone who “intentionally transports, harbors or conceals” an individual who knows or should have known that the individual had entered the U.S. illegally.
Under this state definition of human smuggling, someone who “benefits financially or receives anything of value” could be prosecuted. That is a concern for Juarez and her organization.
“The bill doesn’t define what ‘anything of value’ is,” Juarez said. “Is it a coffee as a thank you? Gas money? It’s so broadly, vaguely written and it could be interpreted in a lot of ways for everyday people, and gives police the discretion to really interpret it however they want to.
In an email, Madaí Rivera, Kansas director for the League of United Latin American Citizens, also expressed concern with the bill’s ambiguity.
“HB 2350 is yet another bill that would allow racial profiling and penalize care, empathy, and acts of kindness that our society is lacking. Additionally, the content of this bill is vague, allowing those in power to apply their own interpretations and misuse their authority,” she wrote.
“As a result, activity among our immigrant community might decrease, less trips to local establishments, work, etc. thus negatively impacting the economy of our state.”
Another concern: what about mixed-status households?
According to research from the University of Kansas, mixed-status families include family members of different legal statues, such as undocumented, semi-legal, resident or citizen. This family dynamic can leave them vulnerable to “spillover consequences of current enforcement practices … including family separation and economic strain.”
“There are thousands of Kansans that have families with mixed statuses. What if, for example, a sister was paying rent for the other sister. That’s considered something of value, right? Is this harboring or concealing?” Juarez said.
House Democrat Angela Martinez, who represents Wichita, testified and voted against HB2350. She shares the same concerns as Juarez and Rivera.
“People who’ve got their families with them… while they may have legal status, maybe their family doesn’t. So, it puts the person with legal status in a bad position. It’s a bad bill,” Martinez said in an interview with Planeta Venus.
“Do we want to hold smugglers accountable when they bring folks into the country for exploit? Sure, we do. But we don’t want to do that at the expense of causing any problems with the Latino community. We don’t want to cause any problems with them trying to work and live everyday lives.”
Human trafficking is in Kansas, but critics think this bill avoids addressing the real issue
Karla Juarez pointed out that Kansas already has a 2012 statute criminalizing “aggravated human trafficking” which is the intentional harboring, transportation or obtaining of a person for labor or services through the use of force.
There is no mention of immigration or status inquiry in the statute.
“As an immigrant myself, as a director of an organization that fights for immigrant rights, do I feel like this new bill is a targeted, anti-immigrant bill? That will give people the police more discretion to discriminate? Yes, I do.”
Martinez said while she was vocal about her opposition to the bill, she doesn’t think law enforcement will be as aggressive with the law as some may worry.
“If you get pulled over, they’re going to ask, ‘what is the nature of this interaction’ and things like that. I don’t think you’re automatically going to be taken in and charged with a crime without knowing what’s going on.”
Planeta Venus contacted the Wichita Police Department and Sedgwick County Sheriff’s Office for comment. WPD did not respond by the time of publishing.
Nathan Gibbs, the public information officer for the Sheriff’s Office, said the Sheriff has not had a chance to review the bill yet so he was unable to provide a statement.
Martinez added that so many in the Statehouse voted in favor of the bill because they saw it as a protection for victims being smuggled in for exploitation.
“I testified that although it appeared to be a tool to protect those being brought in for exploitation for human trafficking, I felt that it was harmful and targeted to a specific community,” she said.
“But it did have that human trafficking component, and we are having a human trafficking problem. Wichita is one of the hubs for it. When they see that, that’s why it’s supported. The language in the bill is pretty broad and I don't think they really understood the impact it would have on everyday citizens.”
Know Your Rights
HB2350 could “open up the state to expensive lawsuits,” a concern cited in Gov. Kelly’s veto. Juarez said it’s too early to know what grounds, if any, advocates have to challenge the bill in court.
“We are going to explore that option and ask questions.”
Looking forward, Juarez advises immigrants and other vulnerable communities to freshen up on basic constitutional law: you have the right to remain silent, refuse a search and request an attorney.
“We still have rights. Don’t share your immigration status with anybody. At all. There’s no reason why people should be asking for your status anyway,” Juarez said. “Like out in the streets, just be vigilant. Who’s asking? Why are they asking?”
Regardless of one’s status, any person residing in the United States has protected rights under the constitution. AIRR has online know-your-right trainings available in English and Spanish for community members directly impacted by immigration policies.
The ACLU of Kansas also has booklets available in English and Spanish.