Wednesday, November 22, 2006

Suit to Challenge Arizona Conspiracy Policy

MARICOPA COUNTY IMMIGRANT CRIMINAL CONSPIRACY POLICY
SUBJECT TO FEDERAL COURT CHALLENGE

Press Conference: Wednesday, November 22, 2006, 11 AM
Location: Senate Lawn, 1700 W. Washington Phoenix 85007

Contacts:
Roberto Reveles (We Are America Coalition/Arizona) (480) 983-8611
Marianne Gunko (Friendly House) (602) 257-1870, ext. 230
Peter Schey, Esq. (Center for Human Rights & Constitutional Law and counsel in the lawsuit) (323) 251-3223
Ray Velarde, Esq. (LULAC) (915) 373-6003.

A coalition of organizations in Maricopa County, joined by several State Representatives and other Arizona taxpayers, and a group of immigrants facing felony charges for “conspiring” to have themselves transported through Maricopa County, today announced the filing of a federal class action lawsuit challenge to the controversial migrant conspiracy policy.

Plaintiffs in the lawsuit include We Are America/Somos America Coalition of Arizona, Arizona Hispanic Community Forum, League of United Latin American Citizens, Friendly House, Arizona State Representatives Kyrsten Sinema, Steve Gallardo, and Steve Lujan, Arizona State University Associate Professors Cecilia Menjivar and LaDawn Haglund, and six immigrants charged with felony conspiracy under the Maricopa County policy.

The lawsuit is brought as a class action on behalf of “all individuals stopped, detained, arrested, incarcerated, prosecuted, or penalized for conspiring to transport themselves” in Maricopa County.

Maricopa County is the only local government in the United States to initiate a program to charge all suspected undocumented migrants being transported through the county with felony crimes. To date, over 300 immigrants have been arrested, jailed, and charged under the policy. According to the lawsuit, most plead guilty in order to avoid lengthy stays in Maricopa‚s notoriously harsh jails.

In March 2006 Maricopa County started to arrest large numbers of suspected undocumented immigrants and charging them with conspiracy to transport themselves with the aid of a smuggler. County officials base their policy on a State anti-coyote law passed in 2005 that makes it a crime to smuggle undocumented immigrants for gain in Arizona. However, legislators who proposed and supported the state law, have publicly criticized the Maricopa County policy saying they never intended it to be used against migrants being smuggled.

The Maricopa County policy is one of hundreds of local initiatives that have recently been enacted in response to what local officials see as a failure of the Congress to adequately grapple with national immigration reform. Defenders of immigrant communities view the Maricopa County policy as the harshest and most discriminatory measure initiated in the country.

The plaintiffs are represented by a team of lawyers, including three firms based in Phoenix, the Center for Human Rights and Constitutional Law based in Los Angeles, California, and the LULAC National Legal Advisor based in El Paso, Texas.

Roberto Reveles, Executive Director of the We Are America Coalition of Arizona, issued the following statement: “The legality of the Maricopa County conspiracy policy should be ruled upon by the federal courts before more lives are destroyed, people needlessly jailed for months at a time, and tax-payers billed for a program that may be unconstitutional and has no measurable impact on the immigration crisis.”

Rosa Rosales, National President of LULAC, issued the following statement: “As the oldest and largest Hispanic civil rights organization in the country, we are appalled at the short-term political gains certain Maricopa County officials have sought to make by charging immigrants with serious felonies. The vast majority of these immigrants come to the United States to satisfy the demand for labor here and to join their families. They are hard working and in no way a threat to national security. Treating them like serious criminals is not only irrational, it is shameful and disgraceful.”

Peter Schey, President of the Center for Human Rights and Constitutional Law and counsel for the plaintiffs, issued the following statement on behalf of the plaintiffs: “Instead of participating in the on-going national debate over immigration reform, as many other counties are doing, Maricopa County has spoken with a voice of intolerance and divisiveness. It has all but shut itself out of the national debate. The Maricopa County policy is a far more serious violation of the law than anything the jailed migrants have engaged in. It appears to be a conspiracy to violate the federal constitution and laws, unwittingly underwritten by Arizona taxpayers. We have little doubt that in the end the policy will be declared illegal and enjoined from further implementation by the federal courts. If that is the outcome, the Arizona taxpayers may then face hundreds of lawsuits for false arrest and imprisonment. Maricopa County would be well advised to at least temporarily suspend its policy while the courts decide its legality. That would be the prudent course for the county to adopt in light of the serious claims raised in this litigation.”

Marianna Gonko, Immigration Director of Friendly House, a Phoenix non-profit serving low-income families, issued the following statement: “The Maricopa County conspiracy policy not only has a devastating impact on the lives of immigrants, it also forces non-profit organizations to divert their limited resources to serving this jailed population. The migrants we have interviewed in jail wanted nothing more than to come to this country to engage in hard work, to support their families, and to be reunited with their families. Keeping them in jail for many months and charging them with serious felonies does absolutely nothing to address the underlying causes of undocumented migration.”

# # # #

BACKGROUND

The plaintiffs:

Plaintiffs in the lawsuit include We Are America/Somos America Coalition of Arizona, Arizona Hispanic Community Forum, League of United Latin American Citizens, Friendly House, Arizona State Representatives Kyrsten Sinema, Steve Gallardo, and Steve Lujan, Arizona State University Associate Professors Cecilia Menjivar and LaDawn Haglund, and six immigrants charged with felony conspiracy under the Maricopa County policy.

Status of the six migrant plaintiffs:

Two of the immigrants, Rosa Flor Diaz Godines and Adriana Rodriguez Espiritu, both from Mexico, were arrested by Maricopa County sheriff deputies on September 18, 2006, and remain in jail awaiting felony criminal proceedings. They are very afraid of their current circumstances, feel extremely isolated, have virtually no contact with family or friends, find their jail conditions extremely harsh even though they have yet to be convicted of any crimes, had no prior knowledge of Maricopa‚s „conspiracy‰ policy, and had no intention to violate any laws of any kind in Maricopa County.

Two of the immigrants arrested in September, Plaintiffs Raul Bomaye and Javier Encino, were jailed for several weeks and then turned over to the Immigration and Customs Enforcement (ICE) after posting bail. They were promptly removed from the country to Mexico while their criminal charges were still pending. The charges remain pending and the Maricopa County Court will probably issue a warrant for their arrest. They have effectively been prevented from appearing in court and defending against the criminal charges.

Two plaintiffs Cortez-Cuellar and Sanchez-Diego, father and son, were arrested in May 2006. After a few months in jail, they were released on bail and are presently living in Phoenix, Arizona and have pending conspiracy charges. They have been living in the U.S. for about 17 years. Their right to continue residing in the U.S. will eventually be determined by federal authorities. A felony conviction under the Maricopa County policy could destroy whatever rights they may possess to continue residing in the U.S.

The legal team:

The plaintiffs are represented by the Center for Human Rights and Constitutional Law (Los Angeles), Perkins Coie Brown & Bain P.A (Phoenix), Ray Velarde, LULAC National Legal Advisor, Dan Ballecer (Phoenix), and Antonio Bustamante (Phoenix).

The State law:

In 2005 the Arizona legislature passed an anti-coyote (anti-smuggling) law. 34. Ariz. Rev. Stat.  § 13-2319: „It is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose. . . . . For the purposes of this section ... smuggling of human beings‚ means ... that the person or persons transported ... are not ... lawfully in this state.”

The Maricopa County “conspiracy” policy:

On September 29, 2005, the Maricopa County Attorney Andrew Thomas issued a statement declaring that, in his view, § 13-2319 makes a crime not only smugglers‚ transporting persons for profit, but also non-smuggler migrants‚ agreeing to pay for transport or on whose behalf others had agreed to pay for transport.

According to defendant Thomas: “If [law enforcement has] probable cause to believe that illegal immigrants have intentionally allowed themselves to be smuggled by a paid human smuggler . . . [law enforcement] may arrest the illegal immigrants as well as the coyote.” Maricopa County Attorney Opinion 2005-002, Sept. 29, 2005.

How State legislators reacted to defendant Thomas‚ policy:

On March 6, 2006, the Associated Press reported lawmakers‚ astonishment at defendant Thomas‚ adoption of the Maricopa conspiracy policy:

[T]wo of the law's authors said Friday that it was never their intent for illegal immigrants to be prosecuted under the law.
“This is something the county attorney came up with himself,” said Rep. Jonathon Paton, R-Tucson. “I never intended that immigrants would be arrested . . . That's not what I sold the bill as, and that's not what our attorneys at the time told us. It was pretty clear.”
When Sen. Timothy Bee, R-Tucson, was contacted about the arrests, he hadn't heard Thomas was seeking to charge the immigrants under the human smuggling law.
“Wow,” he said. “That's the first time I've seen that interpretation of the law. The law was designed to go after those who are involved in drug trafficking and human trafficking for a profit.”

Who is the lawsuit brought on behalf of:

The lawsuit is brought as a class action on behalf of “all individuals stopped, detained, arrested, incarcerated, prosecuted, or penalized for conspiring to transport themselves” in Maricopa County.

The legal theories:

Maricopa County Attorney Andrew Thomas and Sheriff Joseph Arpaio have publicly expressed their frustration with the failure of the federal Government to control immigration and decided to take matters into their own hands to control undocumented immigration through their “conspiracy‰ program.

1.  Regulating international migration is a matter of exclusive federal authority. The conspiracy policy and the arrests that it promotes violate “federal preemption.” U.S. Const. Article I, § 8, cl. 4 (the federal power to establish uniform rules regarding immigration).

2. The arrest policy also promotes racial profiling and discriminatory detentions because Sheriff Deputies have no training in and cannot easily tell whether someone is not “not lawfully in this state” without first detaining and interrogating them.

3. The lawsuit also argues that the conspiracy policy is inconsistent with and violates the State‚s anti-coyote law (this is called a “pendent state claim” raised in the lawsuit).

What the lawsuit seeks to achieve:

The plaintiffs want the federal courts to determine whether the Maricopa County conspiracy arrest policy is constitutional. The plaintiffs seek an injunction blocking further enforcement of the policy.

bh

https://lawprofessors.typepad.com/immigration/2006/11/suit_to_challen.html

| Permalink

TrackBack URL for this entry:

https://www.typepad.com/services/trackback/6a00d8341bfae553ef00d834fed5bf69e2

Listed below are links to weblogs that reference Suit to Challenge Arizona Conspiracy Policy:

Comments

I find it interesting that the three legislators (Lujan, Gallard, and Sinema) who claim to know the intent of the law, and are plaintiffs in the suit, were among those who voted against the bill:

http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/47leg/2r/bills/hb2580.hthird.1.asp

(I don't know my way around the AZ legislature site... but I think a 36-yay 3rd reading vote means the bill passed the House. I do not know whether there was a subsequent vote on a version based upon a compromise bill with the AZ Senate.)

Posted by: Ron Harvey | Nov 27, 2006 1:07:30 PM

Post a comment