13-4295.01. Illegal entry from foreign nation; affirmative defense; probable cause to arrest; prospective applicability; classification

342 words·~2 min read·/az/title-13/13-4295-01

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(Caution: 1998 Prop. 105 applies)

A. It is unlawful for a person who is an alien to enter or attempt to enter this state directly from a foreign nation at any location other than a lawful port of entry.

B. It is an affirmative defense to a violation of subsection A of this section if either of the following applies:

1. The federal government has granted the defendant lawful presence in the United States or asylum under 8 United States Code section 1158.

2. The defendant's conduct does not constitute a violation of 8 United States Code section 1325(a).

C. A person may not be arrested for a violation of this section without probable cause, which shall be established by any of the following:

1. A law enforcement officer who witnesses the violation.

2. A technological recording of the violation.

3. Any other constitutionally sufficient indicia of probable cause.

D. This section may only be enforced prospectively. This section does not apply retroactively and shall not be construed to apply to the conduct of any person who entered this state unlawfully from a foreign nation at any time before this section becomes enforceable.

E. An alien lacks lawful presence under this section if the alien was either:

1. Paroled pursuant to a programmatic grant of parole, including under any parole program not created under notice-and-comment rulemaking that establishes specific characteristics under which an alien would be entitled to parole and that has been applied to more than one hundred aliens during one calendar year.

2. Required to be detained under the immigration and nationality act but was not detained and instead was paroled into the United States.

F. A violation of this section is a class 1 misdemeanor, except that it is a class 6 felony if the person has been previously convicted of a violation of this section. The person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served a term of incarceration as determined by the court.