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Maricopa County Won't Appeal Ban on Self-Smuggling Prosecutions

Maricopa County Attorney Bill Montgomery.
Maricopa County Attorney Bill Montgomery.
Matthew Hendley

Maricopa County won't appeal a federal judge's ruling that prevents county officials from prosecuting undocumented immigrants for smuggling themselves into the country.

Such prosecutions were started by now-disbarred former Maricopa County Attorney Andrew Thomas, using a relatively new anti-smuggling law that was enacted to target human smugglers, not those being smuggled. The Maricopa County Sheriff's Office under Sheriff Joe Arpaio agreed to make these arrests, and the prosecutions continued under current County Attorney Bill Montgomery.

A federal judge ruled in September that Arpaio and Montgomery could not continue to use this policy, stating that it conflicts with federal law, which does not consider it a crime to be in the country unlawfully.

"The County Attorney did not agree with the ruling, however we respect it and we will abide by it," Montgomery's spokesman Jerry Cobb tells New Times. "There is no change in his position that the federal government is not doing enough to meet its obligation of controlling the borders."

See also:
-Arpaio Can't Arrest People for Smuggling Themselves Into Country, Judge Rules
-Montgomery Prosecuting Fewer Immigrants for Smuggling Themselves

This week, the Maricopa County Board of Supervisors approved paying $675,000 to We Are America/Somos America, the immigrant-rights group that filed the lawsuit, for attorneys' fees.

"The County Attorney made the decision that there really is no viable avenue to appeal the ruling that the district court imposed," Cobb says.

In September, U.S. District Judge Robert Broomfield ordered that Arpaio, Montgomery, and their successors not use this policy because it "effectively criminalizes conduct which federal law does not."

"More specifically, by deeming it a felony for unlawfully present aliens to conspire to transport themselves, the Policy is 'criminalizing unlawful presence, a stance plainly at odds with federal law,'" Broomfield wrote.

The policy had previously survived a challenge in state court, but this federal lawsuit is what's putting an end to the policy.

Our colleague Ray Stern has reported that there were 294 people prosecuted for self-smuggling in 2008, 493 in 2009, 369 in 2010, 330 in 2011, and 155 through most of 2012. (Montgomery took office in 2010.)

Meanwhile, in a separate lawsuit, a federal judge has had to order Arpaio's office not to racially profile Latinos.

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