Flushing Them Out

"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."

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."

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."

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.