Judge: Maricopa County Can't Prosecute Migrants For Smuggling Themselves
September 30, 2013

The
Maricopa County Sheriff's Office
The Maricopa County Sheriff's Office released this photo to accompany a 2012 press release about arrests made under the human smuggling statute.

PHOENIX – A federal district judge has ruled that one of Maricopa County's most controversial enforcement policies impacting undocumented immigrants must end.

On Friday, Judge Robert Broomfield ruled the county of Sheriff Joe Arpaio must immediately stop its policy of prosecuting unauthorized migrants under the state's human smuggling statute with felonies for conspiring to smuggle themselves.

In 2005, Arizona's state legislature passed a state human smuggling statute that makes it a state felony to knowingly transport immigrants in the country illegally for financial gain.

Former Maricopa County Attorney Andrew Thomas interpreted the statute to mean that not only so-called "coyotes" could be prosecuted, but also the the migrants who paid them. Thomas was later disbarred for other matters.

These individuals were arrested by the Sheriff's Human Smuggling Unit, and then were charged with felonies for conspiring to illegally transport themselves.

The prosecutions were suspended under Thomas' immediate successor, but resumed under current County Attorney Bill Montgomery.

As of November 2012, more than 1,600 people had been prosecuted in Maricopa County for conspiring to illegally smuggle themselves, according to data obtained by the Phoenix New Times.  

After these individuals pleaded guilty to the felony charges, typically they were taken into ICE custody and deported. Their criminal record then made them subject to a bar for gaining legal entry to the U.S.

"From the time that that policy was first initiated in Maricopa County, we thought it that it was not only absurd, but it was completely illegal," said Peter Schey, an attorney with the Center for Human Rights and Constitutional Law in Los Angeles, who represented the plaintiffs.

Schey brouht the suit on behalf of a number of organizations, including We Are America/Somos America, and two Maricopa County taxpayers, LaDawn Haglund and David Lujan. Haglund is an Arizona State University professor and Lujan is a former Arizona lawmaker.

The lawsuit has been pending since 2006. Broomfield initially dismissed the case because he found the plantiffs did not have standing to bring the suit, but the Ninth Circuit Court of Appeals overturned that dismissal.

In his Friday ruling, Broomfield found that Maricopa County's policy conflicted with federal law because immigration is the federal government's domain, and Congress has decided to treat unauthorized presence in the country as a civil matter, not a criminal one.

His order means Maricopa County sheriff's deputies must stop arresting and detaining suspected unauthorized immigrants if they are not smuggling anyone else, and the county attorney's office must halt these prosecutions.

It's possible that had the lawsuit not been pending for so many years, the outcome could have been different. How the federal courts treat state-led immigration efforts has been evolving in recent years.

In 2012, the U.S. Supreme Court struck down three sections of Arizona's immigration enforcement law, S.B. 1070, that made certain immigration violations state crimes. The high court found those sections were preempted by federal law.

Afterwards, federal appeals courts struck down laws in Alabama, Georgia and South Carolina that criminalized harboring and tranpsorting unauthorized immigrants on preemption grounds.

Those recent opinions were cited by Broomfield in his order.

The impact of recent legal precedent on immigration enforcement was not lost on Tim Casey, who is serving as Maricopa County's attorney in this case.

"What you do see in this opinion is a change in the law," Casey said. "The law is definitely changing and it is clearly telling states, you cannot protect your own borders -- that's up to the federal government. And hopefully the federal officials will take leadership and take note and do something about it."

Casey said he and his clients are reviewing Broomfield's order and are deciding whether to appeal.

The order is the latest restriction from the courts placed on Arpaio's agency.

A different federal district judge, Murray Snow, found in May that the Maricopa County Sheriff's Office discriminated against Latino motorists, and Snow is expected to issue a sweeping order in the coming weeks that will require the agency to adopt new policies and procedures to prevent racial profiling.

Snow also specifically ordered the MCSO to stop investigating immigrants for violating the human smuggling statute solely because they are believed to be in the country illegally, and that ruling has already been upheld by the Ninth Circuit.

The plaintiffs in this case were not seeking monetary damages. But there may be more legal action to come.

"We will certainly now examine whether there is any way to undue the approximately 2,000 unconstitutional felony convictions obtained under the Maricopa County policy," Schey said.

Schey also said he hoped it would be possible for those foreign nationals who have already been prosecuted under the policy to convince immigration authorities to lift the bar they face in applying to immigrate legally to the U.S.

The order does not explicitly prevent local law enforcement from enforcing the state human smuggling law against smugglers who are transporting others for a profit.

Updated 9/30/2013 at 3:30 p.m.