Death on Trial

Two activists test immigration's legal waters

Two college kids, shackled at ankle and waist, are prodded into a stern federal courtroom. The students are with No More Deaths, a church-based immigrant-assistance faction. On July 9, near sleepy Arivaca, they were arrested and charged with what amounts to immigrant smuggling. Of course, no one truly believes these kids are smugglers, or guilty of doing anything other than what they claim: hauling three sun-sick migrants to a waiting doctor.

It is a game, nothing more, with death as referee.

In the Southside Presbyterian Church, Reverends Stuart Taylor and John Fife lead yet another grim press conference. To an angry, wall-to-pulpit crowd, they assail Border Patrol strategies that drive migration deep into the desert, and drive up Arizona's migrant body count. Since Oct. 1, that count has topped 175.

At Border Patrol headquarters, squat and fortified on West Ajo Way, Chief Michael Nicely most likely sits behind a very busy desk. He must contend with death, politics, vigilantes, bleeding hearts and policies hatched in Washington, D.C.--a world so far away, it might as well be Mars. Still, even with all that, this self-styled hard-liner must pause at times, pondering the elusive nature of good and evil.

Nicely's agents certainly do, says Rev. Taylor, co-pastor at St. Mark's Presbyterian Church in midtown. "We've experienced a whole spectrum in our dealings with agents on the ground. We've actually had agents express their appreciation and gratitude for the work we're doing."

One time, he says, "a migrant in medical distress was handed over to an agent who came down the road. The agent finished binding (the migrant's) blisters and thanked us for our work. It's that kind of cooperation we wished we were seeing across the board."

Such synergy has reportedly vanished since Nicely replaced former Sector Chief David Aguilar, who was promoted to agency head in July 2004. Clear-cut rules for assisting immigrants--from providing food and water to emergency hospital runs on a doctor's advice--were out the door, says Taylor. "We had worked out these protocols over many years with the Border Patrol. But since Chief Nicely has come into office, he has let us know that the protocols, in good standing before his tenure, were no longer going to be respected as working agreements."

That's baloney, says Border Patrol spokeswoman Andrea Zortman. "Both (former Chief) Aguilar and Chief Nicely have gone on record and informed the groups that if they are caught transporting (migrants), they will be arrested."

If that's the case, however, some wonder why this is the first high-profile arrest of volunteers from No More Deaths, or its sister group, Samaritans. Either way, the action may have backfired. Eyebrows jumped when the U.S. Attorney's Office hustled out slap-on-the-wrist plea deals for Shanti Sellz and Daniel Strauss--cushy, 12-month diversion programs, in exchange for admitting they'd picked up the migrant trio and "transported them to Tucson for the purposes of aid and hopefully to remain illegally in the United States thereafter." Attorney Bill Walker, who represents Sellz, characterizes that admission as "stupid. I think (prosecutors) realized they would have a very tough row to hoe" in getting convictions.

The U.S. Attorney's office won't discuss the plea deal, says spokeswoman Sandy Raynor. "I'm not able to speak about it until it's accepted as a part of public record."

But the question lingers: What exactly was Chief Nicely trying to achieve with these arrests? For clues, we can examine his comments from a closed-door meeting last spring with religious leaders, including Rev. Fife and Bishop Gerald Kicanas, of the Catholic Diocese of Tucson. The Tucson Weekly has gained access to audio tapes of this private parley, during which Nicely was both congenial and combative.

"I do not believe that death should be the sanction for illegal entry into the United States," he declares early in the discussion. But the chief grows prickly when Rev. Fife asks about transporting migrants in medical emergencies. "I'm telling you there's no special dispensation," Nicely tells the pastor. "If you are involved in an act that meets all the elements of a criminal act, we're going to take enforcement action."

Then Chief Nicely adds a curious observation: "As everyone in this room knows," he says, "there's a long way from enforcement action to prosecution and conviction." Does that mean Nicely will arrest volunteers and haul them to court--all at taxpayers' expense--while realizing there's little chance of conviction? Absolutely not, according to Zortman. Instead, her boss was referring to the long investigative process following such arrests, she says. "In no way did he mean, 'Oh, this is just going be a message.'"

At the same time, immigration laws--and underlying federal strategies--as they apply to Sellz and Strauss raise other questions. To clear things up, the Weekly contacted Jean Rosenbluth, a law professor at the University of Southern California. She handled numerous immigration cases as a federal prosecutor from 1995 to 2002. "And as a federal prosecutor, you know about a million more crimes than you can prosecute," Rosenbluth says. "If you come across a case where there was an emergency, that's not a case that you prosecute." In the Tucson arrests, "maybe the prosecution thinks there's some sort of overstatement of what was going on ... .

"On the other hand, there is some pressure (on the feds) to get tough on this stuff," she says. "And sometimes, they're trying to create policy. One could surmise that perhaps they're going after (Sellz and Strauss) precisely to send the message that 'we're not going to let anyone--no matter what their motives are--get away with this. It's a crime and that's it.'"

But beware of unintended consequences, says Niels Frenzen, an immigration attorney and Rosenbluth's colleague at USC. "It's certainly not a good use of law enforcement resources in this case, especially when the Border Patrol already knows who these people are."

Frenzen says the U.S. Attorney "may not want to drop the thing, because one of their constituents is the Border Patrol, and the U.S. Attorney's office wants to maintain good relations with the Border Patrol. But this really seems like one of those instances where the U.S. Attorney should just drop the whole thing, even if that pisses off the Border Patrol."

Maybe so. Maybe not. Meanwhile, out in the desert, armies of the dead continue keeping count.

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