Arizona county agrees to drop appeal of ruling that bars contentious immigration tactic

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PHOENIX — County officials have agreed to drop an appeal of a ruling that bars authorities in metropolitan Phoenix from charging immigrants who paid to be sneaked into the country with conspiring to smuggle themselves.

Ten months ago, a judge prohibited Maricopa County Sheriff Joe Arpaio and County Attorney Bill Montgomery from using the contentious tactic that expanded the reach of Arizona's 2005 smuggling law and led to complaints from immigrant rights advocates that the statute was intended for smugglers, not their customers.

Montgomery said Thursday that there was no likelihood that the county would have won an appeal, given that the courts have ruled that immigration enforcement is the province of the federal government. "It was a painful but objective legal decision to decide," Montgomery said.

The Board of Supervisors agreed Wednesday to a settlement that calls for the county to drop its appeal in exchange for paying $675,000 in attorney fees for the lawyers who challenged the legal tactic. The settlement, first reported by The Arizona Republic, also calls for the lawyers who filed the challenge to drop their appeal that sought to invalidate more than 1,000 convictions brought against smuggling customers.

"I think they finally realized it was a fool's errand," Carlos Holguin, one of the attorneys who challenged the tactic, said of county officials.

The smuggling law was passed in 2005 as lawmakers responded to voter frustration over Arizona's role as the nation's then-busiest immigrant smuggling hub. It marked Arizona's second major immigration law and was followed in 2010 with a wide-ranging law that required police to make immigration checks in certain cases, inspiring similar laws in Alabama, Georgia, Indiana, South Carolina and Utah.

Lawyers challenging the Arizona prosecutions argued that the policy of charging smuggling customers with conspiracy was trumped by federal law. Attorneys defending the law contended that Arizona law allows people to be convicted of conspiracy, even when they can't be convicted of the crime itself.

U.S. District Judge Robert Broomfield ruled in September that the policy criminalizes actions that the federal law treats as a civil matter.

Montgomery said Thursday that the ruling was so broad that his office hasn't been able to prosecute smugglers since the September decision.

Both sides had informed Broomfield they would appeal his ruling, but in the end, never filed appellate briefs. Instead, lawyers on both sides focused on settling the case.

"The sheriff has pursued laws that are on the books," said Arpaio aide Jack MacIntyre. "He will hand over for prosecutions cases for laws that are still on the books."

The ruling marks yet another restriction on immigration enforcement efforts by Arpaio, who has made immigration a central part of his political identity in recent years.

Washington stripped some of Arpaio's officers of their power to make federal immigration arrests in 2009, and a federal judge ruled in May 2013 that the sheriff's office had racially profiled Latinos in immigration and regular traffic patrols. The sheriff continues to arrest immigrants in business raids in which they have been charged with using fake or stolen IDs to get jobs.

Several weeks after the smuggling law took effect in August 2005, Andrew Thomas, Maricopa County's then-top prosecutor, issued a legal opinion requested by Arpaio that said immigrants suspected of using smugglers could be charged as conspirators in smuggling cases. In Arizona, only Maricopa County used the conspirator interpretation for the smuggling law.

Thomas, who is now seeking the Republican nomination for governor, said in a statement that the legal tactic was vital in confronting illegal immigration. "The refusal to appeal and defend the law is a shameful surrender to the liberal elites who are abetting illegal immigration and eroding our national sovereignty," Thomas said.

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