Prosecutors drop cases against 4 AZ migrants who could face deportation proceedings

The four Arizona residents who were arrested by the Phoenix Police Department after a May demonstration and later taken into custody by U.S. Immigration and Customs Enforcement won’t face any civil or criminal state charges, according to the Phoenix and Maricopa County prosecutors. 

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 following a protest denouncing the death of Black Americans at the hands of law enforcement. 

Police charged them with rioting, a class 5 felony. Lawyers and migrant community advocacy groups say Phoenix police wrongly arrested the four because they were in their cars leaving the protest or, in the case of Orona Prieto, in the wrong place at the wrong time. A county judge ordered them released and ICE agents detained them on June 1.

Cortes, Guerrero and Montes Cuevas have temporary protection from deportation through the Deferred Action for Childhood Arrivals program. They were released from ICE custody on June 1 following social media campaigns organized by local community groups.

Orona Prieto is still in ICE custody, at the Florence Detention Center, where 32 people have tested positive for COVID-19, and 11 of those who knowingly have the virus are still detained there as of June 21, according to ICE data. 

Maricopa County Attorney’s Office spokeswoman Jennifer Liewer said in an email county prosecutors declined to file felony charges related to Cortes, Guerrero, Montes Cuevas and Orona Prieto earlier this month. 

“On June 2, our office declined to prosecute on all four cases and referred the cases back to Phoenix Police for review by the city prosecutor,” Liewer said. 

In a June 11 email to Arizona Mirror, police spokeswoman Sgt. Mercedes Fortune said “confusion on the paperwork process” led to the felony charge against Cortes, Guerrero, Montes Cuevas and Orona Prieto. She said the correct charge instead should have been unlawful assembly, a class one misdemeanor. 

On Friday, city spokesman Nick Valenzuela said the Phoenix prosecutor declined misdemeanor charges on all four cases. 

He said the Office of the City Prosecutor reviewed those cases to see if any misdemeanor charges related to the incidents of May 30 were appropriate. Charges were declined for Guerrero and Orona Prieto on June 16, for Cortes on June 18 and for Montes Cuevas on June 19, Valenzuela said. 

Still, due to the arrest by Phoenix police on a criminal charge, they all face immigration proceedings and potential deportation to Mexico.

An ICE spokeswoman couldn’t immediately comment on whether the agency had been notified that felony and misdemeanor charges were declined on the four cases. 

ICE contact ‘wholly unjust and patently illegal’

Orona Prieto, who’s in the detention center, was at the wrong place at the wrong time, his girlfriend Corina Paez said. 

The night of May 30, the two were driving in the downtown Phoenix area. Their plan was to park somewhere, walk around, and find a place to eat, she said. 

Paez, who’s 19 and lives in South Phoenix, said she had never been to downtown Phoenix. She didn’t know a protest was taking place that night over the deaths of George Floyd in Minnesota, Dion Johnson in Phoenix, and other Black Americans who have died after encounters with law enforcement. 

Paez said she took a wrong turn and ended up at the intersection of Fillmore Street and First Avenue, behind a Hummer truck. Police officers started to pull people out of that truck and arrest them. The cops then moved to her car. 

“They told us to get out of the car, they were pointing guns,” Paez said. “They arrested me and my boyfriend. They took me to one side, and they took him to another side.”

According to police, they were arrested on May 31 at around 12:30 a.m.

Paez last saw Orona Prieto during booking at the Maricopa County Sheriff’s Office Fourth Avenue Jail. Through a partnership with MCSO, an ICE agent inside the jail interviews every person during the booking process. That jail 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.

Later that night, at around 8 p.m., a county judge said there was no probable cause to arrest Orona Prieto for rioting.

“Evidence was provided that there was violence and force used by a ‘large group of subjects.’ However, there was no evidence provided that this specific defendant ‘recklessly used force or violence or threatened to use force or violence,’” Judge Melissa Marie Zabor wrote in Orona Prieto’s release order. “There was no evidence provided that this specific defendant was present at the time of the violence or force. As a result, there is no probable cause that the defendant committed Riot, under ARS 13-2903A.”

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Paez said she and Orona Prieto talk daily. She first heard from him on June 8, and said he is only allowed an hour a day to use the phone because of COVID-19 restrictions in the facility. 

He’s feeling disillusioned, she said. 

“He told me that if it wasn’t for me talking to him everyday, he would sign to get deported,” Paez said. “When he told me that, it broke my heart. I’m the only one he has here. Honestly, it hurts. He doesn’t have his family here.”

She said Phoenix police’s baseless stop and arrest will have a big impact on her and Orona Prieto’s life. 

“It really is going to affect us a lot. In the future, we were talking about us getting married, having kids, getting his papers,” Paez said. 

According to ICE, Orona Prieto had previously been deported in early 2015. This means his deportation could be imminent.

The Florence Immigrant and Refugee Rights Project, an organization that provides attorneys to migrant adults and minors in detention, is representing Orona Prieto in his immigration case. 

In a statement, the group denounced the police arrest that channeled Orona Prieto into ICE custody.

“The way in which Jesus came into contact with ICE was wholly unjust and patently illegal,” the group said. “He was in the wrong place at the wrong time, and he and his girlfriend were unlawfully stopped by police as they drove home. We are working hard to advocate for his release.” 

Arrests highlight local, federal collaboration 

Phoenix police said it arrested more than 300 people in four days starting on May 28, when large rallies began gathering in the city’s downtown, eventually leading to a statewide curfew. 

“These daily demonstrations have challenged department staffing in dealing with mass arrests,” Fortune, the police spokeswoman, said in a June 11 email to the Mirror. “The priority of every officer during these mass demonstrations has been the well being of community members and safeguarding property. Stabilizing the scene is also a primary concern.”

Guerrero, the DACA recipient who was arrested, was at the May 30 protest as a legal observer, according to Puente Human Rights Movement, the migrant rights organization where she works.  

She said they way police reacted to protestors, how they conducted the arrests and the subsequent mistakes on charging documents point to an agency in need of systemic change.

“How their officers were reacting when I was being arrested, how they were so degrading and dehumanizing, and how they were talking about these charges not being upheld… For Phoenix PD to just say, ‘Hey, paperwork mistake,’ and it’s not just the paperwork mistake when folks have to go and be put through this process of police and federal collaboration,” she said. “The reaction of Phoenix PD and how they decided to implement these arrests is just unconstitutional. It’s something that should not be happening.” 

Cortes and Montes Cuevas—the other two DACA recipients who were arrested that night—were driving away from the demonstration when police pulled them out of their car and arrested them, according to Daisy Zambrano, Montes Cuevas’s fianceé. 

“They went for the people who were so vulnerable. He was on his way out,” Zambrano said in a June 1 press conference outside of an ICE office in Phoenix.

ICE, Penzone and Democratic Party 

Guerrero said on Friday she’s relieved charges won’t be pursued in her case. But the baseless arrests put her and three other Arizona residents into an immigration enforcement system that has broad discretion to deport people. 

“It puts me at ease to know that I don’t have anything on my (criminal) record, but I’m also aware of the administration that exists,” Guerrero said. She spoke outside the county court building, where she had been gathering documents on her case to send to ICE. 

The four arrests that led to ICE detention have renewed calls for MCSO to end its partnership with the federal immigration enforcement agency. 

Sheriff Paul Penzone, a Democrat running for re-election and endorsed by the Maricopa County Democratic Party, has stood behind the partnership his office said promotes public safety. 

Guerrero criticized the county party for standing behind a candidate that allows “DACA recipients to be sent to ICE.”

“The unwillingness of the Democratic Party to hold their own candidates accountable to the same standards of the GOP has resulted in me facing a deportation case,” she said. “Until they are able to engage in real accountability, from their own candidates, the Democratic Party is complicit in deportations, endorsing traumatic experiences and the separation of families.”

An MCSO spokeswoman said in an email on Monday that Penzone stands by his practice of partnering with ICE to screen people and take them into custody in county jails.

“The Sheriff’s position remains the same,” said spokeswoman Norma Gutierrez.