By John Pomfret
Washington Post Staff Writer
Friday, January 26, 2007
PHOENIX -- In 2001, Arizona state prosecutors trying to stem the growing tide of immigrant smuggling found a Western Union outlet in the border town of Douglas that was doling out more than $91,000 a month -- this in a community where the per capita income was barely $10,000 a year.
People across the country, prosecutors said, were sending money to the little Western Union shop in Douglas -- and scores others like it in Arizona -- to pay smugglers to sneak illegal immigrants into the United States.
To fight back, Attorney General Terry Goddard employed a controversial technique known as a damming warrant to seize $17 million in money transfers into hundreds of Western Union locations in Arizona, prosecute scores of immigrant smugglers and deport hundreds of people in a program he marvels at because of its "elegant simplicity."
On the surface, the warrants were a success. Between mid-2005 and mid-2006, according to Goddard's office, transfers of $500 and more into Arizona fell from $36.8 million a month to just $2.8 million. The only problem was that all of Goddard's other sources indicated that immigrant smuggling was still booming in Arizona.
So on Sept. 21, Goddard expanded the program, issuing a warrant blocking all Western Union money transfers of $500 and above from 26 states with a significant population of illegal immigrants to a group of Western Union outlets in the northern Mexican state of Sonora. He also planned on issuing warrants blocking money transfers through Western Union to nearby states such as Nevada.
Western Union sued to block the Sonoran warrant. "We felt that the state was overreaching," said Peter Ziverts, Western Union's vice president for compliance, "because none of this money ever touched Arizona. So how could Arizona claim it was involved in a state crime?"
On Jan. 9, Maricopa County Superior Court Judge Kenneth L. Fields agreed, quashing the warrant and ruling that it was "unconstitutional as applied under the Commerce Clause, Foreign Commerce Clause, Due Process Clause and the Fourth Amendment of the United States Constitution."
This legal battle is but one of more than 10 state and federal cases in Arizona over how to police illegal immigration. The cases underscore the pitfalls faced by local law enforcement as it intensifies its fight against immigrant smuggling and undocumented workers. Tactics prosecutors believe are a godsend in the crackdown are often, in the words of one federal law enforcement official, "either brilliant or illegal."
Arizona has emerged as the hothouse for new, sometimes controversial tactics to confront illegal immigration because, as Goddard said in an interview, "we have it rubbed in our face on a daily basis."
Since the mid-1990s when a federal crackdown in San Diego and El Paso forced illegal immigrants into the desert, Arizona has become the highway through which millions of crossers enter the United States. In fiscal 2006, the U.S. Border Patrol apprehended more than 510,000 people attempting to unlawfully enter the United States via Arizona, half of the total for the 2,000-mile-long southern border, according to government statistics.
Phoenix is recognized as the hub of the immigrant smuggling trade, stocked with safe houses where illegal immigrants, known as pollos, or chickens, are held until relatives or friends pay about $1,600 a head and they are moved out on the highways that crisscross the city. In an affidavit filed late last year, Goddard's office contended that Phoenix-based immigrant smuggling enterprises had annual revenues of $1.7 billion to $2.5 billion. The Phoenix Police Department estimates that 50 percent of that city's murders involve either an illegal immigrant as assailant or victim.
Sheriff Joe Arpaio of Maricopa County, home to 3.5 million people, has made his department one of the first local law enforcement agencies in the nation to direct its deputies to arrest illegal immigrants under a state law. So far 400 have been arrested, although Arpaio's tactics are the subject of a lawsuit.
In addition to the Western Union suit, Goddard's fight against immigrant smugglers, who are sometimes called coyotes, has also prompted a federal lawsuit by a group of Western Union customers who allege that the attorney general's office seized their money and never returned it.
According to the suit, Goddard's investigators did not tell the senders that their transfers had been blocked (a charge Goddard did not dispute) and handed money over to recipients only after they had proved that the transfers were not being used for illegal activity. "So much for innocent until proven guilty," said Matthew Piers, the lead attorney in the case.
"We have law enforcement run wild down there," Piers said. "We support interdiction of money for coyotes, that's an activity well worth stopping. But the warrants in Arizona are so broad as to be ridiculous."
Goddard's prosecutors said 91 percent of the people whose money was seized were involved in either drug or immigrant smuggling. Joshua Hoyt, executive director of the Illinois Coalition for Immigrant and Refugee Rights, which interviewed more than 400 of Western Union's customers to help prepare the case, said that while the "clear majority" of the money senders were illegal immigrants, only a small fraction were involved in felonies. "This is a legal equivalent of a drive-by shooting," he said. "People were sending money to their relatives to buy medicine and food."
Goddard said he has proof that immigrant smugglers were continuing operations in Arizona and using Western Union branches in Sonora to stash their cash. According to an attorney general's office affidavit, a suspect, who had been picking up his cash in Arizona, received $270,000 within two months from a small Western Union stand in Sonora, another garnered $136,000, a third $113,000.
"It is obvious to us that they've just moved the cash aspect of their business out of state," he said, "but the smuggling operations remain in Arizona."
Goddard's tactics were also controversial because of federal concerns that his office was overreaching. When ICE Director Julie Myers visited Arizona in late 2005, Gov. Janet Napolitano (D) suggested that they hold a joint news conference in support of the warrants. Myers declined, officials from both the state and federal governments said. And ICE pulled out of the state's financial crimes task force.
But in recent months, relations between ICE and the Arizona state government have improved. A new special-agent-in-charge, Alonzo Peña, arrived from Texas after Napolitano pressured the federal government to transfer his predecessor, law enforcement officials said. ICE will soon rejoin the state's financial crimes task force.
In an interview, Peña said ICE is considering using the surveillance warrants as a tactic to fight immigrant smuggling; that way at least law enforcement could avoid Western Union's argument that Arizona was overreaching.
"I am not really concerned about what happened in the past," Peña said, "We just want to get in and participate . . . as long as it's legal and can be introduced in court."