The Maricopa County Attorney's Office and Arizona-based attorneys for United States Immigration and Customs Enforcement are engaged in a partnership to ensure the deportation of undocumented aliens who otherwise would benefit from President Obama's proposed comprehensive immigration reform, despite statements from both agencies to the contrary.
As I documented in my recent cover story on County Attorney Bill Montgomery's policy toward prosecuting undocumented immigrants, Montgomery maintains that his office is not concerned with the immigration consequences of the convictions his office obtains against illegal aliens.
During a recent interview with Montgomery for that article, Montgomery insisted that his office does not charge individuals based on their immigration status, contending that he is unconcerned with how such charges may impact an alien defendant's case before an immigration judge, once they are turned over to ICE.
"What the federal government decides is up to the federal government," Montgomery said. "If they changed tomorrow and say these offenses are not deportable, I'm not going to chase the federal policy and find out what would be deportable. It's up to them."
Montgomery claimed that he had never met with ICE representatives to be advised on this topic. But after that interview, ICE acknowledged that it had made a presentation to MCAO attorneys on the immigration consequences of certain convictions, and the MCAO admitted that such a presentation had taken place.
As a result of a public records request to the MCAO, I obtained the PowerPoint presentation given on Friday, January 6, 2012 by ICE attorneys to as many as 80 MCAO attorneys. The one-hour "brown bag" lunch forum was billed as a way for staff lawyers to help meet Arizona Bar requirements for continuing education.
Email correspondence between ICE and MCAO indicate that the lecture was arranged and likely given by Dominique Honea, assistant chief counsel at the ICE Office of Chief Counsel in Arizona. Honea, who works at ICE's Eloy Detention Center, may have been joined by two other attorneys, senior attorney Jennifer Wiles and assistant chief counsel Christopher Kelly.
Titled, "Immigration Consequences of Common Arizona Convictions," the PowerPoint essentially is a guidebook for prosecutors, showing them how to charge a defendant on a variety of offenses so as to ensure the accused's deportation after he or she is turned over to ICE.
Though the presentation covers state charges related to controlled substances, firearms and domestic violence, of particular interest are "crimes involving moral turpitude," or crimes that are inherently reprehensible, which include fraud and taking the identity of another.
County prosecutors have a wide array of state statutes to choose from when prosecuting individuals who are suspected, say, of working with a false Social Security Number, even in using one subsection of a law versus another. Some charges are considered CIMTs, some are not
A CIMT conviction means the individual will likely be deported, despite the best efforts of an immigration attorney.The ICE PowerPoint identifies the possible "litigation challenge" for each state charge, and how to get around it.
For instance, a straight up forgery charge under Arizona Revised Statute 13-2002 has no immigration challenge, no defense for the alien involved, and so no way for him or her to remain in the country after conviction.
But with criminal impersonation, or ARS 13-2006, the subsection charged can have life-changing consequences for the alien. One section is not considered a CIMT, allowing for a defense in immigration court and a possible stay of removal, while two others, "require reprehensible conduct," according to the PowerPoint.
I can already hear the cries of, "Who cares? Deport 'em all." But the existence of this PowerPoint presentation is an embarrassment both to the federal government and to the county attorney's office, with serious civil rights implications.
The 14th Amendment to the U.S. Constitution says that the states cannot "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
That is, it indicates "persons," and does not distinguish between citizens and non-citizens.
Also, Montgomery's office could be accused of violating Title VI of the 1964 Civil Rights Act, which prohibits institutions receiving federal funds, such as the MCAO, from discriminating "on the basis of race, color, and national origin."
In other words, if Montgomery has one rule for those from another country and another for U.S. citizens, such a practice would be in violation of federal law.
Montgomery was put on notice of possible Title VI violations by the MCSO in a letter from Assistant U.S. Attorney General Thomas Perez dated December 15, 2011.
Perez found reasonable cause to believe that Arpaio's boys and girls in beige engage "in a pattern and practice of discriminatory policing," specifically, the "racial profiling of Latinos."
The letter detailed alleged violations of the First, Fourth and 14th Amendments to the U.S. Constitution, as well violations of Title VI and section 14141 of the U.S. code, and it specifically called out the MCSO's Criminal Employment Squad, which executes Arpaio's anti-immigrant raids.
"The CES targets worksites where most, if not all, of the employers are Latino," reads the letter.
(It's worth noting that ICE itself no longer does workplace raids, and has a policy of not criminally prosecuting unlawful workers unless the employer is prosecuted.)
By May of 2012, the DOJ had finished haggling with the MCSO for voluntary compliance with the law, and filed suit in federal court against Arpaio, seeking to force that compliance. That case is still working its way through the legal process.
But if the ICE PowerPoint demonstrates Montgomery's disingenuousness and his complicity in Arpaio's civil rights violations, it also damns ICE, which has suspended the so-called 287(g) program in Arpaio's jails because of Perez's findings.
The 287(g) program allows local cops to act as immigration enforcers. Now it seems as if ICE has its own version of the 287(g) program for local prosecutors, allowing them to act as de facto ICE attorneys, in order to affect negatively someone's immigration case.
Keep in mind that this PowerPoint application would apply to the same individuals affected by ICE Director John Morton's June 17, 2011 letter instructing ICE agents, officers and attorneys to exercise their "prosecutorial discretion" on a "case-by-case basis."
The PowerPoint's cookie-cutter approach also can negatively impact legal permanent residents and applicants for President Obama's Deferred Action for Childhood Arrivals program, many of whom now sit nonbondable in Arpaio's gulags awaiting trial on forgery charges. If found guilty, they likely will be deported.
What does ICE have to say about this blatant hypocrisy and this outright conflict with the goals of the Obama administration and the stated intent of ICE to focus on serious criminals?
I asked regional ICE spokeswoman Virginia Kice, but she would only repeat what ICE had stated in response to a previous query:
"ICE attorneys around the nation perform outreach to explain the federal immigration consequences of state convictions to numerous audiences.
"Although Maricopa County and other prosecutors are among those who have received information about the immigration consequences of crimes, ICE attorneys are careful not to advocate a particular position. Rather, they explain how precedent case law affects federal immigration enforcement following state criminal convictions."
But the PowerPoint is by no means a neutral document, and it most certainly advocates "a particular position."
Indeed, the above statement is belied by the mere fact that this was not a presentation open to the public and other lawyers, but rather was only available to MCAO staff.
The language of the PowerPoint itself is prosecutor-friendly, as I've already shown. Why else would ICE phrase the solution to a "litigation challenge" as "no problem if"?
The first person to suggest that such a training had occurred was Phoenix immigration attorney David Asser in his blog David's Inner Thoughts.
In two posts from December of 2011, he described how an ICE attorney at ICE's Eloy detention center was crowing about the training ICE had given the MCAO. (According to internal emails, ICE also did the training for the Pinal County Attorney's Office.)
I called Asser to tell him about the PowerPoint, and that its release essentially vindicated his blog.
Asser surmised that the PowerPoint must have been approved by the upper echelon of ICE bureaucrats.
"The problem is higher up," he said. "the problem is not a low level assistant chief counsel. These people are not renegades."
He also agreed that the practices in the PowerPoint conflict with the Morton memo.
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"Absolutely it conflicts," he stated. "But it is condoned, apparently. It's not something that they do on their own. These people don't get out of Eloy unless somebody approves it."
Coincidentally, USA Today recently published an article detailing how ICE was "ratcheting up expulsions of immigrants convicted of minor crimes" by "trolling" driver's license databases and sending ICE agents to local traffic checkpoints.
If the "trolling" of driver's licenses by the feds doesn't send an Orwellian chill up your spine, nothing will.
When prosecutors and cops treat one subgroup of persons differently than others and apply the law differently to them, that is discrimination, pure and simple. It is unconstitutional. It is illegal. And it must stop.