Máxima Guerrero is pictured outside the U.S. Immigration and Customs Enforcement office in central Phoenix on June 1, 2020. Guerrero was arrested while she was a legal observer of a #BlackLivesMatter demonstration on May 30. She and three others who were arrested that night now face deportation. Photo courtesy Diego Lozano/Facebook
The Phoenix Police Department said “confusion on the paperwork process” led to felony charges for four Arizona residents after they were arrested following a May 30 protest denouncing the death of Black Americans at the hands of law enforcement.
But the arrest and record of a felony charge could upend their lives, as all four now could face deportation.
Roberto Cortes, 22; Máxima Guerrero, 30; Johan Montes Cuevas, 22; and Jesus Orona Prieto, 26, were among the more than 100 people arrested by Phoenix police in the early hours of May 31 and charged with rioting, a felony. The following day, a local judge released them due to lack of probable cause for arrest and agents from U.S. Immigration and Customs Enforcement took them into custody.
Lawyers and migrant community advocacy groups say Phoenix police wrongly arrested the four because they were in their cars leaving the protest.
Initially, Phoenix police Chief Jeri Williams told ABC15 that her police force pulled people out of their cars that night because those people were using their cars “to help fortify and give… rocks and bottles, water, food, to those individuals who were absolutely there to commit crimes.”
However, In a June 11 email to Arizona Mirror, police said it made a mistake. Cortes, Guerrero, Montes Cuevas and Orona Prieto shouldn’t have been charged with a felony, police spokeswoman Sgt. Mercedes Fortune said.
“We have learned that, initially, there was some confusion on the paperwork process,” she said. “Originally, the paperwork associated with the arrests of Jesus Manuel Orona Prieto, Roberto Carlos Cortes Mondragon, Johan Montes-Cuevas, and Maxima Guerrero listed the charge they were arrested for as a Class Five Felony. The correct charge should have been a Class One Misdemeanor for Unlawful Assembly. Those corrections have been made.”
Because of the arrest and the felony charge, the four currently have immigration court cases pending, where they could face deportation proceedings. Orona Prieto is still in ICE custody at the Florence Detention Center, where 28 positive cases of COVID-19 have been reported, according to the federal agency.
Cortes, Guerrero and Montes Cuevas all have some protection from deportation through the Deferred Action for Childhood Arrivals program. ICE released them from custody under a parole-like supervision program called Alternatives to Detention following a social media campaign by advocacy groups.
Guerrero works with the migrants rights group Puente Human Rights Movement. She was at the May 30 protest as a legal observer, according to the group. She was in the passenger seat of a car leaving the protest when police arrested her, said attorney Ray Ybarra Maldonado, who is representing Guerrero and Cortes.
Cortes and Montes Cuevas were in a car leaving the Saturday night demonstration when police pulled them out of their car and arrested them, said Daisy Zambrano, Montes Cuevas’s fianceé.
Corina Paez, Orona Prieto’s girlfriend, told The Intercept they were out on date night near downtown Phoenix, not protesting, and in their cars when police contacted and arrested them.
Phoenix police arrested more than 300 people in four days starting on May 28 during large demonstrations protesting the deaths of George Floyd in Minnesota, Dion Johnson in Phoenix, and other Black Americans who have died after encounters with law enforcement.
According to ICE, Cortes, Guerrero, Montes Cuevas, and Orona Prieto all have immigration cases currently pending before the Executive Office for Immigration Review, a U.S. Department of Justice agency that administers immigration courts.
DACA — the temporary federal program that Cortes, Guerrero and Montes Cuevas benefit from and the fate of which is before the U.S. Supreme Court — grants some immigrants who arrived in the country as children a two-year work permit and shields them from deportation. Those who have been convicted of felonies and certain misdemeanors are not eligible for the program.
Orona Prieto, who’s in federal detention, had a deportation in early 2015, according to ICE. This means his deportation could be imminent. A crowdfunding page for him states Orona Prieto left Mexico, where he was born, due to gang persecution.
Lawyer: All charges should be dropped
Ybarra Maldonado, the attorney, said Phoenix police and city leadership should apologize for mistakenly charging people with felonies. But he added that the right thing to do would be for prosecutors not to follow through with any charges.
“It’s ridiculous that, instead of admitting their mistake, (police) are trying to cover it up,” Ybarra Maldonado said. “Even if they were charged with a misdemeanor versus the felony, the fact that their rights were violated and they should’ve been allowed to leave instead of being arrested doesn’t change anything at all.”
Fortune, the police spokeswoman, said the corrected cases with the misdemeanor charge related to Cortes, Guerrero, Montes Cuevas and Orona Prieto were forwarded to municipal court.
“The Maricopa County Attorney forwarded the charges to the Phoenix City Court for the appropriate charge,” she said in an email.
As of Monday morning, those cases weren’t on the city’s court system, said Don Linder, with the court’s records division. Linder was responding to a records request from Arizona Mirror for documents on the cases involving Cortes, Guerrero, Montes Cuevas, and Orona Prieto.
Ybarra Maldonado called on Phoenix police to clarify where the correction in the arrests will be visible.
“If your arrest record shows you were arrested for a classified felony, that’s a very serious charge on the law enforcement level against somebody, especially in the world of immigration,” he said. “So, I really do hope that we see here every effort made by the Phoenix Police Department to erase that from their record.”
A felony charge, even without conviction, could lead an immigration judge to think the person before them did “something very bad,” he added.
“These ramifications can be felt many years into the future for all four of these individuals,” Ybarra Maldonado said.
Cases highlight ties between local law enforcement and ICE
The cases of the four migrants arrested during the protests also shed light on the relation between local jails and ICE.
“This case is just a prime example, and should be used across the country, as to why it’s problematic to have ICE inside of local jails,” he said. “These are wrongful arrests. As a result of the wrongful arrests, people are facing deportation and (are detained) in COVID-filled immigration detention centers.”
ICE agents interview every person that is arrested and taken for processing to any of the Maricopa County Sheriff’s Office jails. Sheriff Paul Penzone, a Democrat running for re-election, has stood behind the practice, which was implemented by his predecessor, Joe Arpaio.
“This is both lawful and necessary in our effort to promote public safety while facilitating the mission and authority of other policing agencies,” said Sgt. Joaquin Enriquez, an MCSO spokesman, in a February email to the Mirror. “ICE has the opportunity to take custody of individuals they deem appropriate based on their criteria before the inmate leaves the jail facility.”
For years, advocacy groups have pushed for local jails to cut ties with ICE.
Ybarra Maldonado said this relationship can result in due process rights violations for immigrants who are arrested for local infractions or crimes.
“The criminal process should be allowed to be played out,” Ybarra Maldona said. “The presumption of innocence should remain in the United States of America, and ICE should not get involved on a single case until the criminal justice system has a chance to give the person their due process, their day in court so they can prove their innocence.”
The Maricopa County Fourth Avenue Jail in Phoenix ranked second nationally in the places that received the largest number of ICE custody transfer requests in fiscal year 2019, according to ICE records obtained and analysed by the Transactional Records Access Clearinghouse at Syracuse University.
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