Once an immigrant is deported, it becomes a felony to enter the United States without inspection. Capture can lead to time in federal prison. If an immigrant is deported with a felony charge — as the people in the smuggling cases are — there is no way he or she can ever apply for and get lawful entry to the United States ever again.
The law quickly drew national attention from civil rights groups including the Center for Human Rights and Constitutional Law in Los Angeles. Peter Schey, executive director of the center, has been involved in fighting the law since the first arrests were made.
Morgan Bellinger
Phoenix lawyer Daniel Ortega
Morgan Bellinger
Activist Alfredo Gutierrez works the crowd outside M.D. Pruitt's furniture store, the site of a weekly immigration protest.
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"We became involved because of the extreme nature of the policy adopted by Andrew Thomas and Sheriff Joe Arpaio," he says. "They're the only federal or state officials in the country who have adopted the position that migrants may be charged under criminal anti-smuggling laws with the conspiracy to smuggle themselves. We believe that Thomas and Arpaio's position is entirely without legal justification."
In November 2006, Schey helped a group of local activists, professors, and immigrants charged under the law file a class-action suit to fight it.
Schey has a multi-pronged argument. First, he says, the county attorney is violating the intent of the law — a claim that representative Paton, the man who authored it, has repeatedly backed up.
"If you look at my statements in the hearing committee itself, they were pretty clear," he says. "Under questioning, I stated the purpose was to go after smugglers."
Schey argues the law is unconstitutional.
"We believe they are intruding into an area in which the federal government maintains exclusive jurisdiction," he says. "The federal government has enacted comprehensive laws dealing with immigrant smuggling and has clearly preempted local officials from implementing the type of policy being pursued by Arpaio and Thomas."
He also worries that sheriff's deputies aren't equipped to effectively enforce immigration law. He knows of at least one case in which a minor was indicted on smuggling charges along with the rest of the group she was arrested with. She sat in the county jail for three months.
The girl, Rosa Diaz-Godines, could not be contacted for this story, but her lawyer, Geoff Fish, confirms that she was obviously underage.
"She looked really young. She insisted she was 18, but I didn't believe her, and she finally admitted she was not," he says.
On her way across the desert, someone had told her that if she said she was 18, she would be allowed to stay in America. So, she refused to admit her real age. Once Fish was able to obtain her birth certificate from Mexico and prove she was underage, she was released. About a month after her release, she became eligible for a green card.
"They're not sufficiently familiar with immigration law to determine who can be here and who can not," says Schey. "They assume everyone who is transported by a smuggler is here illegally without considering whether that person might be eligible for a visa as a trafficking victim, as a crime victim, as an unaccompanied minor, or as a person who can seek asylum. They don't have the capacity to determine those questions and they don't seem to care about them."
The civil class-action suit Schey helped file is now before Judge Robert C. Broomfield in federal district court.
On a local level, very few individual cases have made it to trial. The County Attorney's Office would not confirm how many cases have gone before a jury, but a press release from the office names only one jury conviction. Juan Barragan-Cierra was arrested in June 2006 along with three other men and indicted on charges of human smuggling, for smuggling himself into the state. A jury found him guilty, and in December 2006, he was sentenced to two years unsupervised probation and ordered not to remain in the United States illegally. His lawyer, public defender Carissa Jakobe, is appealing the case.
At least one judge has ruled the convictions don't hold up.
In the case of Adolfo Guzman-Garcia, who was convicted by a jury, Judge Timothy O'Toole dismissed the charges after the trial.
Guzman-Garcia was arrested in May 2006 along with 10 others and charged with attempting to smuggle himself into the state. Those with whom he was arrested pleaded guilty and were deported, but Guzman-Garcia posted bond (this was before Proposition 100 was passed) and stayed to fight the case. Though a jury found him guilty of the charges, O'Toole chose to acquit him.
"Evidence showed that the defendant was nothing more than a paying passenger . . . the conspiracy statute does not impose criminal liability on a person who is merely being transported by an alien smuggler for profit or commercial purpose . . . there must be substantial evidence that the person being smuggled also agreed . . . to engage in the offense of human smuggling," he wrote in his ruling.
Antonio Bustamante, a Phoenix lawyer who is working with Schey on the class action lawsuit, says the county attorney knows the best way to ensure a high conviction rate is to push the plea bargains.
"They can't win their cases, so they're taking convictions on the cheap by keeping people incarcerated. You're going to sit there until you cry uncle," he says. "Thomas has no integrity and, to me, is not even a man because of what he's doing. Anyone would rather get out of jail than wait months. That's cowardly, that's not justice and that's not the American way."
