I wanted to write a short post for people wondering about the new human trafficking law in Kansas, HB 2350. HC 2350 makes it a felony to engage in human smuggling. Many people are worried that this law is going to be applied to innoccent, every-day stuff like driving your friend to a doctor’s appointment or helping a family member go to an ICE check-in. As I read the law, I think that it is far narrower than that. And if it is interpreted as it is written, which it should be, then it should not apply to most people. This is why I think that. 

What the Law Says 

It’s critical to start with the language of the statute. To be guilty of “human smuggling” in Kansas, the new statute says that the State must prove that you have done the following: 

1. Intentionally “transporting, harboring, or concealing” a person in the State of Kansas
2. Knew or should have known that the person was in the United States “illegally.” 
3. receive some financial benefit for transporting, harboring, or concealing the person, and (this is the part that makes it so narrow): 
4. Knew or should have known that the person “is likely to be exploited for the financial gain of another.” 

If the law only involved the first 3 things, that would be much broader. Then, many of your most innocent interactions with a person you know is undocumented might have been called “smuggling.” But consider a few examples of such conduct – and then consider whether that 4th element is present in each. 

Examples Where the New Law Does Not Apply 

1. Driving a friend to the grocery store, the doctor, or their ICE check-in

In this scenario, you probably meet the first prong, because you’re transporting the person. It might or might not meet the second prong. The state would have to prove that you also knew that your friend was here “illegally.” I’ll write more below about how hard that second prong is going to be to prove. But this scenario is entirely missing the 3rd prong (financial benefit). And the 4th prong is absent too – you would have to know that by driving your friend to the grocery store, that friend “is likely to be exploited for” financial gain. Of course, grocery prices are criminally high, so maybe that counts as financial exploitation. But in all seriousness, doing a favor for a friend, being a good samaritan, or giving a neighbor a ride to an appointment is almost never going to meet that 4th prong. You have no reason to know that your friend “is likely to be exploited” financially just because you gave them a ride to an appointment. 

So what situations might this law apply to? If you’re giving people a ride to meet with a shady notario who you know exploits immigrants for financial gain – or driving them to an employer who you know is refusing to pay them. In that situation, I could see the State arguing that you met the 4th prong, because if you knew how bad the notario or the employer were, then you probably knew or had reason to know that the person was “likely to be exploited for the financial gain of another.” 

2. Renting a home or apartment to a person

In this situation, the landlord would have to know that their tenant is here “illegally.” Most landlords never ask questions about immigration status, and they shouldn’t. Housing discrimination based on national origin or immigration status is illegal. So, in most situations, a landlord just renting their home or apartment to another person won’t ever meet the 2nd prong. And, even more importantly, they’ll almost never meet the 4th prong, because a landlord has no reason to think that the person they’re renting their property to “is likely to be exploited for the financial gain of another.”

Why It is So Difficult to Prove Someone is Here “Illegally” 

The main reason that I think this new law isn’t going to apply for most people is the 4th prong – good samaritans helping out a neighbor aren’t going to be involved in financial exploitation. But also, to be guilty you would have to know that the person is in the United States “illegally.” So what does that mean? The federal immigration statute doesn’t define what it means to be here “illegally” – and there are lots of kinds of immigration status or quasi-status that are hard to put in one category or another. Take a few examples: 

• A person with DACA doesn’t have a “visa” and doesn’t have “permanent residence.” They’re here with permission called “deferred action” – but “deferred action” isn’t any kind of permanent status. It’s basically the government saying that at this time they don’t plan to pursue deportation. With “deferred action” the person can get a work card and a social security number, both of which would indicate that the person is probably here “legally.” But it’s just not that simple. 
• A person with an old deportation order who is regularly checking in is sometimes given an “order of supervision.” An order of supervision isn’t a visa or a green card. It does let the person get a work card, but it isn’t a guarantee that they won’t eventually be deported. So is that person here “illegally” even though the government knows they’re here and is giving them work authorization? 
• A person who has entered the United States without status and hasn’t obtained any other status – might be here “illegally.” But they can’t be deported until an Immigration Judge makes a determination that they are here without permission and thus should be deported. If the person hasn’t seen a judge yet, there isn’t any determination of what their status is. And some of these people do have status – even if they don’t know it. I’ve met so many people who thought they were undocumented but turned out to be citizens, because their parents or grandparents were citizens. 
• A person with a U visa pending might not be able to get a work card for about 5 years under the current backlog. But Congress created that visa specifically to protect crime victims from the risk of being deported. Is a person with a U visa pending considered to be here “illegally”? What if they have already gotten the U visa but haven’t gotten the U visa yet? There aren’t super clear answers to this. 

The take-home point is that you just can’t always tell. And when you can, it’s often far more nuanced than just: “is the person here illegaly?”. Politicians like to think of these things in black and white terms because it makes for an effective campaign slogan. But Congress didn’t write the law that way. And States can’t make up their own version of the immigration laws, even if they pass laws that speak in terms that aren’t consistent with what the federal statute says. 

So, what do we make of the new anti-trafficking bill? We will probably wait and see. I don’t think that lots and lots of innocent people are going to be swept up by this law – because of how narrow it is. For now, that’s all we know until the State starts implementing it.