Flushing Them Out
Joe Arpaio and Andrew Thomas are teaching the rest of the nation how to terrorize illegal immigrants
By Megan Irwin
Published on December 27, 2007
Daniela’s world is very small. Though she was born in Mexico and traveled thousands of miles to Phoenix, she might never leave her neighborhood again. As an undocumented immigrant in Maricopa County, it’s just too risky.
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.
Morgan Bellinger
Outside Pruitt’s in Phoenix
Morgan Bellinger
Immigrants protest Maricopa County Sheriff Joe Arpaio.
Morgan Bellinger
An anti-immigrant protester
Subject(s):
illegal immigrants, Sheriff Joe ArpaioHer eldest child longs for the family to take a trip to California and see the ocean, but Daniela, the mother of four American citizens and one undocumented child, ages 5 to 13, doesn’t travel farther than three blocks from her home. She’s terrified.
Her husband, a welder, leaves for work before dawn. She never knows if he’ll come home.
Daniela has very few friends — there’s no one she can trust not to report her, especially now that the county sheriff has an illegal immigration hotline.
She can’t leave her house to buy groceries; she’s heard that the sheriff stations deputies at Food City.
Daniela lives down the street from a drug dealer, not a safe environment for a young family. She knows the guy’s name, his address and she’s seen him do business. But she can’t call the police — they might take her away.
She’s learned how to walk quietly, to stay in the shadows. The only place Daniela allows herself to go is her children’s elementary school. She volunteers there six hours a day. She says it’s her responsibility to be active in her children’s education. But when she walks to school (she won’t drive, ever) she makes sure to go with one of her few friend or her kids.
“You can’t walk alone because if you are walking alone and you get taken, who is going to tell your family you are gone?” she says. “When you walk, you walk fast and you walk quiet. You don’t talk to nobody. If someone is speaking to you, you don’t say anything.”
Daniela’s children can’t sleep through the night. They have nightmares about their parents getting caught and deported.
“We are the only support for my children. If we get arrested, we don’t have another person to take care of my children,” say says, starting to cry. “When they ask, ‘What’s going to happen to us, Mom, if you get arrested?’ I lie to them. I say, ‘We have a plan my love, my sweetie. Someone will take care of you and your brothers. Nothing is going to happen to you.’ But it’s a lie.”
Daniela also wakes up at night, crying. In her dreams, she relives her border crossing. She came to America to meet up with her husband when she was 17, their 8-month-old baby in tow. In the border town of Agua Prieta, she was assaulted by a “coyote,” slang for a person who smuggles immigrants across the border. The coyote stole her money, her identification, and tried to steal her baby.
“They tell me they will take my baby,” she says in her slow, practiced English, from inside a classroom at her children’s elementary school. That was 13 years ago, but from the look on her face, it could have been yesterday. “They say, ‘You will never see your baby again.’”
To save her young son, Carlos, she made a decision that haunts her to this day: She paid a strange woman $600 to drive him safely to Phoenix. It was a painful gamble, but one that paid off. Carlos survived.
If Daniela were caught trying to save his life this way in Maricopa County, she’d be charged with human smuggling, the same as the coyote who haunts her nightmares. Today, victims of smuggling are treated the same as the perpetrators, thanks to an interpretation of the law that assigns the same level of responsibility to the criminals who smuggle and the people they sneak across the border.
There’s good reason to be afraid. The situation for undocumented immigrants in Maricopa County is arguably the worst in the country, thanks to two men: County Attorney Andrew Thomas and Sheriff Joe Arpaio.
Roberto Reveles, the former president of immigrant rights group Somos America (We Are America), says there is no place in the country worse than Maricopa County.
“It’s worse because here there is a statewide effort. The state Legislature is involved, the executive branch — the governor — is complicit, and at the local level, the worst in the country has to be the Maricopa County sheriff and county attorney, who are abusing their power to harass, intimidate, and create fear in the hearts of dark-skinned people,” he says.
In October, when the owners of this newspaper were arrested for releasing information about a grand jury subpoena, no group in Maricopa County watched more closely than the undocumented immigrant community, says Antonio Bustamante, a Phoenix defense lawyer litigating a class-action suit against Arpaio and Thomas.
“It was a despicable, cowardly, gutless lack of character thing to do to any human being,” he says. “And if they would do that to prominent members of the community — if you’re a ‘wetback’ — you’ve got no chance.”
Undocumented immigrants know better than anyone what it’s like to be arrested in the middle of the night, to walk around as moving targets, to sit in jail.
In the past year, the fight against immigrants has gotten particularly nasty as violence against immigrants has escalated.
But this is a fight that began back in November 2004, when a conservative lawyer named Andrew Thomas ran for office on a get-tough immigration platform. The pundits scoffed, noting that the county attorney technically has very little to do with illegal immigration, a federal issue. But Thomas has delivered on his campaign promises. In doing so, he’s become a national spokesman for the anti-immigration movement.
From his attack on the judiciary, to his promise to aggressively enforce a new employer-sanctions law aimed at businesses who hire undocumented workers, to his intense lobbying for a ballot measure that denies bail to illegal immigrants accused of committing felonies, to his campaign against identity theft, almost every political move Thomas makes has anti-immigrant rhetoric at its root.
And these days, Arpaio is right by his side.
Together, they’ve succeeded in terrorizing the undocumented residents of Maricopa County. Consider:
• Thomas’ controversial interpretation of Arizona’s anti-smuggling statute. The county attorney accuses all people who are smuggled into the state of conspiring to smuggle themselves, a class 4 felony.
• Maricopa County is the only place in the country where victims of human smuggling are treated as criminals.
• The law has drawn the attention of national human rights groups like the Center for Human Rights and Constitutional Law on the grounds that the statute is preempted by the federal government’s constitutional right to regulate immigration.
• A crackdown by Arpaio’s deputies on law-abiding immigrants — including food vendors, college students, and day laborers — has left the community so frightened that many immigrants will not even leave their homes to visit the grocery store or go to church. Even American citizens of Hispanic descent say they are nervous. One citizen New Times spoke with carries his United States passport around to prove he’s a citizen.
• A push toward making local law enforcement into immigration officers has had a chilling effect on the undocumented population. In February, 160 county deputies were granted immigration authority. Recently, Phoenix and Mesa have considered allowing police officers to question immigration status (previously, they had to call ICE to verify status). Though Arpaio has arrested only about 1,300 illegal immigrants — a drop in the bucket compared to the estimated 300,000 living in Maricopa County — the effort has been felt throughout the undocumented population.
• An increase in immigrant-on-immigrant violence has come, experts say, as a result of the population’s inability to call the police in time of need. The fear within the immigrant community of all police has given violent criminals the upper hand — they know their victims can’t, or won’t, call for help.
Because of the sheriff’s reputation for retaliation, all undocumented immigrants New Times interviewed for this story chose to use only their real first names in order to avoid capture and possible deportation. Some even refused to meet with a reporter in person out of fear of being turned over to the police.
Both Arpaio and Thomas’ offices declined interview requests for this story. Phoenix lawyer Daniel Ortega, legal counsel to Somos America, says county policies have dangerous ramifications.
“It is our position that Joe Arpaio and Andrew Thomas are doing exactly what the Constitution of the United States prohibits, and that is the enforcement of immigration laws at a local level,” Ortega says. “Why? Because they want to get re-elected. They don’t even have to tell the truth. It doesn’t matter as long as it gets a headline.”
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The issue is not unique to Maricopa County. Nationally, the topic has become such a political onus that in October Mexican President Philipe Calderón issued a statement begging American politicians to stop using migrants as the “thematic hostages of their speeches and strategies.”
This past summer, a national attempt at comprehensive immigration reform, which included a guest-worker program and amnesty provisions for illegal immigrants already here, along with provisions for beefed up border security and sanctions for employers who hire illegal immigrants, failed to pass Congress.
Without a national solution, states have been left to cope with the problem themselves. At least 18 states have punitive laws that deal with illegal immigration. Following Thomas’ lead in Arizona, states including Colorado, Nebraska, and Idaho are considering legislation that would deny bail to undocumented immigrants, and Oklahoma already has such a law in place. In January, Virginia’s House of Delegates passed a law that denies state funding to charitable organizations if the money is used to help illegal immigrants.
Under Thomas’ direction, Arizona is leading the way. Tamar Jacoby, a senior fellow at the Manhattan Institute and internationally recognized expert on immigration, says Arizona is a leader on the issue. But that doesn’t mean she agrees with what the state is doing.
“I would say, for better or worse, Arizona has led the way on state immigration measures,” she says. “I would call them Draconian state measures.”
By the way, Jacoby is no fuzzy liberal. She’s long been known as a rational conservative voice on the issue, working behind the scenes with policymakers in Washington, D.C. She did not want to comment directly on Thomas’ policies, but she did say the trend toward state-sponsored immigration legislation is dangerous. Jacoby says the problem needs to be handled by the one entity constitutionally equipped to handle the problem: the federal government. She blames federal immigration quotas that don’t correspond to actual national labor needs.
It’s not that people would rather be illegal. They don’t have a legal way to come. States can’t do anything about that,” she says. “All they can do is pass these laws, which are so far from what we need. It’s like a zero-calorie diet.”
Linda Chavez, executive director of the Center for Equal Opportunity, a conservative think tank based in Virginia, agrees that the political hysteria surrounding immigration is out of control.
“I think Arizona was sort of ground zero in the fight against illegal immigration. The reason you’re seeing these state initiatives is because the federal government hasn’t dealt with it,” she says. “We have a real hysteria sweeping the nation. The hysteria has stopped Congress from acting and provoked states to act and, frankly, it’s a mess. For states to come in and usurp the job of the federal government is misplaced and dangerous.”
Chavez worries that many state jurisdictions, like Maricopa County, ignore the facts surrounding immigration and act under political pressure. She points out that nationally, the number of immigrants coming to America has declined since 2000. This holds true in Maricopa County. Between 1990 and 2000, the foreign born population here increased about 144 percent. But between 2000 and 2005, it increased only 29 percent.
“A lot of these jurisdictions are acting on their gut reactions rather than empirical evidence,” says Chavez. “They’re not considering the constitutional ramifications.”
That’s true. Like it or not, immigrants — both legal and illegal — are protected by the Constitution. In a landmark 1981 case, the U.S. Supreme Court verified that all people within the borders of the United States are protected by its laws.
In Plyler v. Doe, the court ruled that illegal immigrants still have the right to public education, the undocumented are legally established as recognizable “persons” and are guaranteed equal protection under the law by the 14th Amendment.
Other decisions have declared that immigrants are entitled to due process and can not be arrested or subject to unreasonable search and seizure without probable cause.
Even Deputy Troy Henley, special agent in charge of investigations at Arizona’s office of Immigration and Customs Enforcement, agrees the undocumented have constitutional rights that need to be protected.
“Generally speaking, if you are in the United States, you have constitutional rights,” he says. “Certain rights attach, certain rights don’t. Law enforcement rights attach.”
The political hysteria surrounding undocumented immigrants paved the way for a right-leaning attorney with a Latina wife and a hard anti-illegal immigration stance to win the position of Maricopa County’s highest-ranked elected law enforcement official.
In 2004, when Andrew Thomas ran his campaign on an illegal immigration platform, it was hard to take him seriously. His “stop illegal immigration” signs that covered the county seemed almost like a joke. It seemed preposterous that a county attorney could tackle a federal issue that even national law enforcement and Congress can’t get under control. But his plan worked. Thomas won the election. And immigration was more than just a campaign talking point — almost immediately, Thomas made good on his promises.
At that point, the new county attorney and the old sheriff had not yet forged a bond.
In April 2005, only a few months after Thomas took office, Patrick Haab, an ex-Army reservist, made national headlines by holding seven Mexican migrants hostage at gunpoint at a rest stop on Interstate 8, on county land southwest of Phoenix, because he thought they were illegal. Maricopa sheriff’s deputies who arrived at the scene charged Haab with seven felony counts of aggravated assault.
“I’ve said it before and I’ll say it again: You don’t pull guns on people because of the color of their skin,” Arpaio told the Arizona Republic. “I will continue to defend my deputies. They made the right decision.”
But Thomas had other ideas. Twelve days after Haab was arrested, Thomas announced he wouldn’t prosecute the case because of a state law that permits a citizen arrest when a felony is committed.
(Never mind the fact that crossing the border without inspection is not a felony in and of itself. The first time an undocumented immigrant crosses the border, it’s a misdemeanor. Illegal entry doesn’t become a felony until the person is caught, deported, and tries to come back.)
Paul Charlton, then the U.S. attorney for Arizona, thought Thomas’ decision was dangerous.
“Any time anyone takes the law into their own hands, they risk a number of things,” he says of what Haab did. “Their own lives, the lives of the people they are detaining, and the lives of law enforcement who come upon the scene. It’s a risky proposition, at best, and it should only occur when there’s not another alternative. In my mind, there were a number of other alternatives, short of holding these individuals hostage.”
But what Thomas did resonated with voters, and the incident generated headlines for months. Haab even appeared on Fox News’ Hannity & Colmes to discuss the incident. Thomas drew applause from such anti-immigration groups as the fledgling Minuteman Civil Defense Corps.
Arpaio, famous for generating headlines, saw an opportunity.
Local activist, lobbyist, radio host, and former state legislator Alfredo Gutierrez says it was a dangerous union.
“Arpaio is a clown. A clown that’s good for the times, but a clown. Thomas is smart. He’s fiercely intelligent and civilized, but he’s also vile and hateful,” he says. “Arpaio has an obsessive need for public approval and media attention, and that’s been true since the beginning. The green bologna, Tent City — it’s all designed to keep him in the spotlight. Right around the Haab incident, it became clear to him that this was the next logical escalation. His primary motivation is seeing his face on television. Thomas is a different case. Thomas truly understands his actions and his manipulation of the sheriff is very purposeful.”
Around the same time, the Arizona Legislature passed a law aimed at stopping human smuggling. Jonathan Paton, a Republican from Tucson, says he sponsored the bill with the thought that it would be aimed at the organized crime rings that traffic humans on the border, not at their cargo.
The bill makes it illegal for a person to intentionally smuggle human beings for profit or commercial purposes and defines smuggling as the transportation of people who are known, or could reasonably be suspected, to be unlawfully in the state.
Paton remembers the committee sessions leading up to the bill’s vote as intense.
“There was a lot of debate. They were grilling me to see if this could be used to go after someone driving a gardener around and all these different things. I have a district that goes up to the border. I’m not soft on border issues,” he says. “But this [going after those being smuggled] was not part of my plan.”
Thomas didn’t care. In September 2005, he issued an official opinion on the law. Under Thomas’ interpretation, anyone who pays a “coyote” to guide them to America is guilty of conspiracy to commit smuggling, a felony offense that puts the smuggled on the same level as the violent criminals who bring them here.
Of the 18 or so anti-trafficking state laws nationwide, none has this scope.
Florida, a state with a large trafficking problem, even ensures that victims are provided with state-funded services.
Still, Thomas’ political moves have resonated in other states. Earlier this year, Oklahoma passed a comprehensive immigration package filled with laws modeled after those in Arizona. State Representative Randy Terrill, who authored the bill and brags that his is one of only three states truly cracking down on illegal immigration — the other two, according to Terrill are Georgia and Arizona — says he’s looking at Arizona’s law for guidance.
Two months after Thomas issued his opinion on smuggling, he hosted a conference on illegal immigration. The Southwest Conference on Illegal Immigration, Border Security and Crime was created under the guise of exploring the issue of illegal immigration, but its true purpose was to grab national attention.
The list of panelists included John Leo, a former New York Times columnist, and Kris Kobach, former counsel to John Ashcroft. Tamar Jacoby of the Manhattan Institute was also one of Thomas’ invited panelists.
In a speech at the conference, Thomas made his feelings toward immigrants clear.
“We do, as a society, risk being turned into a different society that is less appealing by tolerating what is occurring,” he said. Later in the speech, he went on, “I think we’re dealing with something that fundamentally changes our democracy, not only in terms of our sense of human rights, [but in] the fact we are tolerating a sub-class of people.”
Next, Thomas lobbied hard to pass Proposition 100, the statewide measure that denies bail to illegal immigrants accused, not convicted, of felonies. Since the measure passed, other states have followed suit. In Colorado, a bill to deny bail to illegal immigrants is part of a package of legislation for 2008 and in May of this year, Oklahoma’s governor signed the Oklahoma Taxpayer and Citizen Protection Act, which denies bail to illegal immigrants and also fines employers who knowingly hire them. Similar measures are under consideration in Nebraska and Idaho.
Oklahoma representative Terrill says Arizona’s Prop 100 was a model for the bail provision of his state’s act.
“I snatched the no bail provision from you guys,” he says.
Thomas fought the judiciary tooth and nail to see it enforced as harshly as possible, going so far as to have attorney Dennis Wilenchik attempt to publicly humiliate judges who refused to fall in line.
Tamar Jacoby says these kinds of state actions are only making the problem worse.
“Arizona is the place where emotions are running highest in the whole country,” she says. “Arizona is like an infected tooth. It’s inflamed and everything makes it worse.”
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By the spring of 2006, Thomas had successfully added an important weapon to his arsenal — a guy with his own arsenal, Sheriff Joe Arpaio. Local police departments weren’t willing to enforce immigration or state smuggling laws, but Arpaio was.
But despite his posturing on the topic, Arpaio has yet to truly dismantle any organized smuggling rings.
In fact, he stumbled upon his biggest bust to date by accident, when his deputies picked up several barefoot, shirtless immigrants running through the streets of El Mirage.
It turned out the men had escaped from a nearby drop house, where they led the deputies. The discovery was the result of pure luck, not investigative excellence.
Nonetheless, what the sheriff’s deputies discovered shined a shocking light on the inside of a drop house, and the serious ramifications Arizona’s anti-smuggling law could have for victims of smuggling.
In mid-October, sheriff’s deputies responded to reports that a number of “illegals” were running shirtless and barefoot through the streets of El Mirage. When rounded up, deputies learned the immigrants had escaped from a drop house where they’d been held hostage.
The inside of the house was disgusting. The bedroom doors were locked from the outside, and in each room, deputies discovered jugs of human waste. Torn, bloody underwear was discovered in one room. The kitchen was filthy with grease and old food, and there was no furniture, only makeshift beds.
One of the victims, the owner of the bloody clothes, was a pregnant teenager.
Her husband, identified only as “Angel” in the report, re-created the scene for police officers:
As soon as they arrived at the drop house, he and his wife were stripped of their possessions and locked in a room. The smugglers made phone calls to his family in Chiapas, Mexico, demanding $3,200 — on top of a set smuggling fee. Angel was “advised that if he didn’t pay, he was going to die.”
He witnessed many beatings inside the house, but the worst was the beating of his wife. When her family could not immediately pay her ransom, she was dragged by her wrist from the room.
For the next half hour, he could hear his wife screaming and crying from the next room. When she returned, badly beaten, she said she’d been punched in the stomach. She miscarried inside the house.
Another man told sheriff’s deputies what happened to him when he arrived at the house on October 2. As soon as he entered the house, the coyotes took his identification, his wallet, and all of his personal belongings and locked him in a room with about 14 other people. He called the coyotes “kidnappers” because they would not release him until his fees were paid.
This transport fee for this particular victim was bumped $200, from $2,500 to $2,700, upon his arrival in Phoenix. He told police that the coyotes would call his wife demanding more money and beat him because she didn’t have it. This happened to a number of people trapped in the home who were told that if their relatives did not pay up, they would be killed and dumped in the desert.
When he was caught trying to escape, the man was taken to a bathroom, where he was tortured and almost suffocated with a plastic bag.
Another man in the same room was beaten and threatened by guards for making too much noise.
According to the police report, one of the coyote guards, “placed the nose of the gun on [his] neck and told [him] that he has killed lots of people, and that his hands were itching to kill another.”
The man’s offense? He was praying.
These are the apparent effects of the smuggling law. According to activists and members of the legal community, the worst thing about the law is that it views victims as criminals. All the people discovered in the El Mirage drop house are subject to felony charges under Arizona law. In an uncharacteristic move, of the 54 people discovered, only five were booked on conspiracy to commit human-smuggling charges. The rest were released to ICE custody for voluntary return to their home country. Because the sheriff will not talk to New Times about the case, it’s unclear why his deputies made this decision.
Even if victims are deported without charges, the threat of arrest and time in the county jail still looms.
“They are defenseless,” says Phoenix lawyer Daniel Ortega. “These are the people the sheriff and the county attorney are going after. The people who are the most vulnerable.”
It’s telling that none of the men picked up in El Mirage phoned the police for help. Thomas and Arpaio spread fear of the police by feverishly trumpeting the number of arrests and convictions under the law. Other states, like Oklahoma, are considering passing similar laws because of it. But the numbers aren’t exactly what they seem.
Since March 2006, Arpaio’s deputies have charged at least 800 people with conspiracy to commit smuggling, and Thomas’ office recently boasted of its 500th conviction.
Most of the pollitos, the slang word for people who pay for transport to the U.S., are offered the chance to plead guilty to the reduced charge of solicitation (rather than conspiracy) to commit human smuggling. After they take the plea, they are sentenced to unsupervised probation and turned over to ICE for voluntary removal from the country.
Antonio Colón, a lawyer in the Maricopa County public defender’s office who has defended many of these cases, says most people don’t want to stay and fight the charge.
“They have the option to get probation and get released to ICE. Clients just say, ‘I want to get out.’ They don’t know why they are incarcerated. They don’t understand what’s going on. And telling them, ‘You conspired to smuggle yourself into the country,’ doesn’t make any sense,” he says. “As soon as they get a hearing, they’re told, ‘We’ll give you the ticket home [if you plead guilty]‘ and they all want the ticket home because they’ve been incarcerated for no reason. It’s kind of sad.”
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.
“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.”
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Immigrants in drop houses are not the only people in danger. Once they enter the community, they deal with the constant fear of discovery. Getting undocumented immigrants to talk about life in Maricopa County is difficult. They are instinctively distrustful of strangers. When you can be arrested at any moment, you have to be careful whom you invite into your life.
That doesn’t mean the undocumented don’t have anything to say for themselves. After Alfredo Gutierrez mentioned on his radio program that this story was being written, he received calls during the rest of the day from people who wanted to talk about life without a green card. Most people did not want to say their names or meet in person. Even when a respected Hispanic leader tells immigrants whom they can trust, they don’t want to take the chance.
Daniela, the mother of five whose oldest child was almost stolen by a coyote, is one of the few immigrants contacted by New Times brave enough to speak candidly about her fears.
She lives down the street from a known drug dealer, which puts her children in a potentially dangerous situation every day.
“I know where they are selling and I know their name, but I am not going to say nothing. First, when the police come they could have the right to ask me about my situation. I don’t know what’s going to happen after,” she says. “Second, I am afraid about the drug dealers. He [Arpaio] is supposed to fight with those persons, not with me.”
But undocumented immigrants like Daniela are exactly whom he wants to fight. One hundred sixty of his deputies and jail officers have been cross-trained as immigration officers, a program known as 287-g after the section of the national Illegal Immigration Reform and Responsibility Act of 1996 that makes this legal.
The program is intended for local law enforcement to go after known violent, criminals — human smugglers for example — and, if they are undocumented, initiate removal proceedings without waiting on ICE.
In theory, the 287-g training that the Sheriff’s Office signed up for is designed to catch people like the drug dealer down the street from Daniela and the coyotes who brutalized the people in the drop house in El Mirage — people who are known criminals. Arizona is not the only state with this funding and training available, nor was it the first to get it. Twelve states have officers cross-trained under the program. But Maricopa County has the more 287-g officers than any other county or state.
Linda Chavez, of the conservative think tank Center for Equal Opportunity, says it’s a good program when used sensibly.
“You need to have police departments checking people who have been arrested for other offenses to see if the person is in the country illegally. You don’t want to let someone go who is a flight risk,” she says. “But you don’t want them pulling people over and harassing them over a broken turn signal. Do you really want them doing an immigration check? You’re hassling someone for something extremely minor when someone else could be doing something serious.”
But Arpaio announced from the beginning that he had no problem arresting illegal immigrants for crimes like jaywalking or spitting on the sidewalk.
“Ours is an operation where we want to go after illegals, not the crime, first,” Arpaio told the Republic in March. “It’s a pure program. You go after them and you lock them up.”
He didn’t waste any time. His office is now notorious for traffic stops that turn into deportations as well as arrests of food vendors and day laborers around the Valley.
Father Glen Jenks of Good Shepherd of the Hills Episcopalian Church in Cave Creek found his parish at the center of the fight after Arpaio made it a point to station deputies outside a day-labor center the church operates in its parking lot. Jenks says the church started the center as a way to keep day laborers from wandering the streets, a major complaint in the northeast Valley community.
“That created a chilling effect. They’ve created terror in the Hispanic community. The consequence of that is whatever the percentage of the population that’s Hispanic can’t report a crime,” he says. “They can’t even let themselves witness a crime.”
Activist Alfredo Gutierrez says that’s the point.
“The intent is to Satanize a group of people. He’s made them morally equivalent to real criminals,” he says. “The guy walking down 34th street looking for a job has got to be as dangerous a criminal as a child molester.”
Jenks says that in his parish (which he points out is about 80 percent Anglo conservative Republicans) the sheriff is losing respect.
“These are not people who have a stake in the issues we’re talking about,” he says. “They just have a sense that the sheriff and his deputies are gunslingers and do not really respect them or trust them at all. They’ve told me this point blank.
The Department of Public Safety, which has 10 cross-trained officers, has adopted a different approach. It is using the training to go after people who involved in known criminal activity.
Sergeant Fred Zumbo, a DPS officer who has had the 287-g training, says DPS is more focused on bringing down organized crime rings.
“Our goal is to get into the organizations and cripple them,” he says. “But the corn vendor on the street is not a law enforcement problem. We are small and focused on the human smuggling aspect of the law because those are the ones causing the most problems in the community.”
Until recently, local police chiefs, most notably in Phoenix and Mesa, have shared this sentiment and resisted the pressure to become immigration enforcers. But earlier this month, Phoenix Mayor Phil Gordon announced he’d appointed a four-man committee to consider repealing a public order that prohibits the Phoenix police from questioning immigration status.
So far, Mesa police Chief George Gascon has stayed strong in his stance against the sheriff’s policies, though not without consequences — Arpaio has recently made it a point to step on the chief’s toes.
Gascon declined an interview for this story. His public information officer, Chris Arvaio, says he’s decided to stick to addressing the issue at press conferences rather than grant individual interviews anymore. Every time he does, the sheriff retaliates.
“After the first couple interviews we found out real quick that we don’t want to play political games,” says Arvaio. “I think he [Gascon] is tired of every time he makes a comment it turns into a game.”
And, in spite of Gascon’s stance on the matter, the Mesa City Council decided in early December to send a letter to Michael Chertoff, secretary of Homeland Security, asking for immigration training for Mesa police officers in their jails. So far, there is no push to train officers on patrol.
The situation with the police has become so bad that even legal immigrants and citizens are afraid. Miguel Gomez-Acosta, pastor at the Lutheran Mission of San Pedro and member of the Valley Interfaith Project, moved to Phoenix from Seattle last year and still isn’t accustomed to living in Maricopa County.
“I carry my passport and I carry my daughter’s birth certificate,” he says. “I grew up in this country. I served in the military and became a citizen, and despite that, I still have to carry my passport and my daughter’s birth certificate because she looks brown. Like me.”
There has been at least one case in which his deputies detained a man, Manuel de Jesus Ortega Melendres, who had legal paperwork. He was pulled over outside Good Shepherd of the Hills in Cave Creek and detained for nine hours, even though he had a legal visa. The man’s lawyers have filed a lawsuit against Arpaio in federal court.
Antonio Bustamante, the Phoenix lawyer fighting the smuggling law, says probable cause and due process rights are being violated but says that’s hard to prove in court. All the witnesses get deported.
“Arpaio is doing racial profiling, though he says he’s not. Who’s going to prove otherwise — especially people who get thrown out of the country. You got rid of the witnesses. You can do whatever you want,” he says. “‘The public loves me,’ he always touts. ‘I’m doing what they people want.’ Well, so did [Jim Clark] in Selma.”
Arpaio insists that his deputies do not engage in racial profiling. Barnarrdino, a 27-year-old immigrant from Guatemala, disagrees. Barnarrdino came to Arizona six years ago with a coyote, by way of Mexico, after life in Guatemala became too violent for him. When his apartment was robbed by two men carrying a grenade and semiautomatic rifles, he decided it was time to get out of the country, regardless of the consequences in the United States. He says he doesn’t regret coming to Arizona to live, but his run-ins with the police have not been pleasant.
About three months ago, he says he was leaving a movie theater with his wife when he caught the eye of two sheriff’s deputies.
“I said to my wife, ‘Watch, they’re going to follow us,” he says through a translator on the steps of his central Phoenix church.
They did and one of the deputies pulled him over.
“He came to the car and asked me, ‘How many drinks did you have tonight, wetback?’ I told him I don’t drink,” he says. “He asked me, ‘Are you a wetback?’ I didn’t answer, so he made me get out of the car.”
The officer forced him to take a Breathalyzer test and conducted field sobriety tests on Barnarrdino. He passed each one. He hadn’t been drinking; he’d been at the movies. He says the officer also asked his wife, who is Mexican but has a pale complexion, “What are you doing with a wetback?” The officer also harassed him because his identification was from the Guatemalan consulate.
“I gave him my ID and he asked how much I paid for it. I told him $80 at the consulate office. He asked where I got it and I gave him the address of the consulate,” he says. “After a while he let me go, but he told me if he ever sees me again, I will sit in jail for a very long time.”
Barnarrdino was very lucky. But the experience stayed with him.
“I’m honestly very afraid. Every morning, I make the sign of the cross and say, ‘God, it’s up to you,’” he says. When asked if he would report a crime to the police if he witnessed or was the victim of one, he says no: “For what? To be asked for my papers? I don’t think so.”
The Guatemalan consulate confirms that Barnarrdino is registered with the office and has valid identification.
Undocumented immigrants may not understand their due process rights, but they do understand that Arpaio is a man to be feared. Many have even stopped going to church for fear of getting stopped on the way.
Reverend Sau’l Montiel of Epworth United Methodist Church and his colleagues at the Valley Interfaith Project say they’ve seen a decline in attendance. Connie Andersen of Most Holy Trinity Catholic Church says her congregation feels it in the collection plate. Montiel sees it in the pews as well.
“I would say about one-third have stopped coming,” he says.
Those that do show up have fearful prayers.
“The prayer requests on Sunday all say, ‘Let us pray not to be arrested this week,’” says Montiel. “That hurts me so much as a pastor.”
Andersen knows of people who won’t even send their children, who are legal citizens, to youth group anymore, and she worried that her church’s annual Virgin de Guadalupe celebration would not happen this year because people are too afraid to leave the house.
“This is a faith tradition,” she says. “This is affecting our ability to practice our faith and do it openly.”
Andersen was right. Attendance at the Virgin de Guadalupe celebration on December 12 was noticeably down.
“We weren’t as packed as usual,” she says. “Normally people are hanging from the choir loft to get a place.”
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Immigrant-related violence is on the rise, according to DPS, Phoenix Police and ICE officials, and it isn’t all related to smuggling. Kidnappers know the undocumented family members of their prey would rather figure out a way to pay the ransom than involve the police.
Vincente is the owner of a seafood restaurant in central Phoenix. About a month ago, he was the victim of an attempted kidnapping.
As he was leaving work one night, a group of men in ski masks followed him to his car. When he tried to drive home, they opened fire, shooting at him 18 times, hitting him once in the shoulder. He managed to escape — he says “only God knows why,” though his nine years in the Mexican army might have something to do with it — to the safety of his home, where he decided to call the police only because he knew he would die if he did not.
According to the police report, bullet fragments were found all over the road at the scene. No one has been arrested. “There is not enough suspect information to help determine any identity,” the report states.
After the attack, Vincente’s brother bought a gun because he also owned a restaurant and was afraid of the kidnappers. He was recently caught with the gun and deported for owning it. Ironically, Vincente says, his brother always hated weapons. Undeterred, Vincente says he is armed all the time now. He’s afraid the men could come back.
“If they try to kidnap me again, they will kill me. So I will kill them instead,” he says. “I’m not going to let them get me. I have a family.”
This is not an isolated incident. He knows three other undocumented business owners who have been attacked in the same way. None of the others involved the police; instead, their families paid the ransom.
“They know we can’t go to the police, and the police think it’s only the coyotes, and it’s not,” he says. “I know a guy whose brother was kidnapped and he pay the money. He pay $100,000 dollars and they give him back. He don’t call the police. He just stay quiet and pay and he is alive.”
Though the police haven’t found a suspect, Sgt. Joe Tranter, a Phoenix Police Department spokesman, says an attempted kidnapping is likely.
“At face value, if he says he was kidnapped he probably was,” he says. “We’ve got a situation that is out of control.”
Troy Henley of ICE says his office has noticed an increase in these kinds of violent crimes by and against immigrants.
“We don’t have numbers, but it seems to me the violence associated with human smuggling seems to be up,” he says. “We get a lot of referrals from police departments in other places where the relatives will get a call and the person will say, ‘I’m in Phoenix. I’m being held in a house and they told me if you don’t pay $100,000 they will cut my ears off or cut my fingers off.”
Kidnappers know their victims have nowhere to turn. And, according to Fred Zumbo from DPS, the kidnappers are organized criminals who don’t care much about possible deportation. They know the way back.
“It’s illegal immigrants causing violence against their own people. It’s a group of young males between 15 and 30, and it’s a very violent breed,” he says. “They have had military training. They are brutal. They have no fear of being arrested and they have no fear of assaulting police officers. They’ll just as soon shoot you as look at you. And they know they will get away with it.”
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The sheriff’s scare tactics are working, but, perhaps, with unintended consequences. A 37-year-old man who has lived in Phoenix since 1990 calls New Times late one evening in early December. His voice comes cracking through the phone. He’s heard about a reporter who wants to talk to immigrants and he’s calling to tell his story. His English is shaky and so is his voice.
“I . . . I know who killed somebody, but I am afraid to call the police. The guy who got killed was my coworker,” he says. “Everybody knows who killed him, but nobody wants to talk to the police. Nobody wants to be a witness because they will deport you.”
He begins to sob. Even though he’s pressed for details, he doesn’t want to give them. He knows the man’s name and the names of the perpetrators but he will not say who they are. Though the victim was his coworker, he cannot reveal where he works.
“I’m sorry, I can’t tell you that much.”
He’s worried that if he talks, the police will come after him and his family.
“If they put in jail the owners of the New Times, what would assure me?” he asks a translator.
According to the little information he’s willing to share, the victim was walking home one night when he was shot near his south Phoenix neighborhood.
The knowledge is destroying him, but what is he supposed to do, he wonders. He has two young daughters, and if he gets deported, they will starve. As he talks about the murder, there is the sense that he is weeping not just for his dead coworker, but also for himself, his wife, and his daughters.
His voice cracks.
“I can’t talk anymore,” he says. “It’s too hard, I can’t talk right now.”
A few days later, he is still uncomfortable talking about what he knows.
“I don’t want to talk about that bad thing,” he says when contacted a second time. “I don’t want to talk about it. I’m afraid.”
Even when assured that his identity and phone number will be kept private, he is too terrified to say anything.
“I don’t trust nobody,” he says. “That’s the point.”
He will not meet anyone in person whom he doesn’t already know.
After another 10 minutes on the phone, he is too frightened to go on.
“I think it’s time to stop,” he says. “I can’t tell you any more.”
The line goes dead.