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June 12, 1987

Alejandro Gutierrez, Plaintiff,
City Of Wenatchee, Defendant

Robert J. McNichols, United States District Judge.

The opinion of the court was delivered by: MCNICHOLS

Robert J. McNichols, United States District Judge

 A temporary restraining order was issued on May 8, 1987 prohibiting the City of Wenatchee from incarcerating Mr. Gutierrez solely on the basis of his alleged status as an illegal alien. Hearing on the merits was held on May 18, 1987 and the following undisputed facts emerged.

 Plaintiff, an undocumented Mexican national, was charged with several misdemeanors in April and August of 1986 in Chelan County District Court. Each resulted in a plea bargain. Sentencing contemplated a probationary period during which he would not break any laws, nor would he return to Chelan County while in an undocumented status. In mid-August of 1986, Mr. Gutierrez took a voluntary departure in lieu of deportation. Predictably enough, plaintiff's return to his homeland amounted to little more than a U-turn and he was back in the Wenatchee area within the week.

 Plaintiff's presence was not discovered until March of 1987 when several INS agents detained him. Because of the intervening enactment of the Immigration Reform and Control Act of 1986 (P.L. 99-603), the agents could not hold him. 8 U.S.C. § 1255a(e) (1). However, they did approach the Wenatchee City Attorney and provide him with affidavits setting forth their conclusion that plaintiff was in the country illegally. Based on this information, the City Attorney petitioned the District Court for revocation of probation. The only grounds alleged were that Mr. Gutierrez had "violated the law by returning to the United States illegally." After a hearing, the District Court ordered revocation, relying solely on the INS agents' affidavits, and holding the 1986 Act irrelevant.

 The Immigration Reform and Control Act of 1986 :

 No one really knows how many aliens have slipped across the nation's borders and are currently living in an undocumented nether world. See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (perhaps as many as twelve million). The dislocation created by this influx is graphically described in United States v. Baca, 368 F. Supp. 398, 402 et seq. (S.D. Cal. 1973). The one thing which has become certain over the years is that illegal immigration is a social malady, and not a legal problem to be addressed under the guise of traditional criminal and quasi-criminal proceedings. United States v. Ortiz, 422 U.S. 891, 915, 45 L. Ed. 2d 623, 95 S. Ct. 2585 (1975) (White, J., concurring and calling for employer sanctions). After years of legislative paralysis, Congress has finally evinced the political courage to tackle directly the cause and effect of unlawful entry by enacting the Immigration Reform and Control Act of 1986. Among the provisions pertinent to the instant action are the following.

 Legitimization of residency will be available to those illegals who:

entered the United States before January 1, 1982 and [have] resided continuously in the United States since such date and through the date the application is filed under this subsection.

 8 U.S.C. § 1255a(a) (2) (A).

 It may at first glance appear unseemly, if not perverse, that Congress would not only countenance but require unlawful entry, but there is no other way the statute can be read. It bears noting in this regard that while persons in plaintiff's position may be technically guilty of illegal conduct in surreptitiously re-entering, Congress has taken away the executive branch's ability to punish such conduct during the pendency of administrative proceedings determining entitlement to amnesty. Section 1255a(e). It also bears noting that Congress had some rather definite goals in mind in comprehensively addressing the massive problem of illegal immigration, and that for every illegal alien rewarded for his longevity as such, another will be shut out by economic reality. Congress so intended:

This legislation seeks to close the back door on illegal immigration so that the front door on legal immigration may remain open. The principal means of closing the back door, or curtailing future illegal immigration, is through employer sanctions. The bill would prohibit the employment of aliens who are unauthorized to work in the United States because they either entered the country illegally, or are in an immigration status which does not permit employment. U.S. employers who violate this prohibition would be subject to civil and criminal penalties.
Employment is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in violation of their status. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens and this, in turn, will deter aliens ...

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