Among those arrested for rioting and looting during the civil unrest in Phoenix last weekend were three people with DACA and another illegal alien who is a prior deportee. Reportedly charged with felonies, all four were turned over to ICE (Phoenix is not a sanctuary), briefly detained, released on supervision, and are now potentially facing deportation in addition to serious criminal charges. One is employed by a local "grassroots migrant justice organization". Contrary to the prevailing media narrative on DACA, quite a few Dreamers have a rap sheet; according to USCIS, more than 10 percent of those approved for DACA have been arrested at least once.
In a statement provided to the author, here is what ICE had to say about the rioting Dreamers:
On June 1, U.S. Immigration and Customs Enforcement (ICE) took custody of Jesus Manuel Orona Prieto, 26, Roberto Carlos Cortes Mondragon, 21, and Johan Montes-Cuevas, 22, all citizens and nationals of Mexico, following their May 31 arrest by Phoenix Police Department on criminal charges. Those charges are pending.
Montes-Cuevas, a DACA recipient was released from ICE custody on an "order of release on recognizance" and placed under the ICE Alternatives to Detention (ATD) Program. His immigration case remains pending before the Executive Office for Immigration Review (EOIR).
Cortes-Mondragon, a DACA recipient will be released on an "order of release on recognizance" and placed under the ICE ATD Program. His immigration case remains pending before EOIR.
Orona-Prieto was issued a Notice to Appear and remains in ICE custody pending a hearing with EOIR. ICE records indicate on Feb. 27, 2015, he was previously encountered by U.S. Border Patrol near Antelope Wells, New Mexico. Border Patrol issued him an order for expedited removal. On Feb. 28, he was removed back to Mexico.
On June 1, U.S. Immigration and Customs Enforcement (ICE) took custody of Maxima Guerrero, 30, a citizen and national of Mexico, following her May 31 arrest by Phoenix Police Department on criminal charges. Those charges are pending. She was released from ICE custody on an "order of release on recognizance" and placed under the ICE Alternatives to Detention (ATD) Program. Her immigration case remains pending before the Executive Office of Immigration Review (EOIR).
The charges against the rioters are serious. According to Phoenix Police Chief Jeri Williams, Guerrero and some others who were pulled over by police were transporting supplies and other support to the rioters. "Those cars were used to fortify and give rocks and water bottles, food to those individuals who were there to commit crime and damage, to do dangerous things to our community," Williams told local media.
Reportedly, the Dreamers have been charged with rioting, violating curfew, disorderly conduct, and unlawful assembly. In Arizona, rioting is a Class 5 felony with a presumptive sentence of two years, and possibly an aggravated term of two years and six months. Disorderly conduct can be a felony or misdemeanor, depending on use of a deadly object, such as a rock, potentially bringing a sentence of up to two years. Unlawful assembly and curfew violations are misdemeanors punishable by fines of up to $2,500 and/or jail time of up to six months.
It will be interesting to see if the authorities will see fit to prosecute the DACA recipients. Guerrero's lawyer already has launched a media campaign alleging that she was wrongfully arrested and racially profiled. There will be more pressure to drop or reduce the charges because of the likelihood that these non-citizens who lack a legal status (i.e. illegal aliens) will be deported if convicted. Will authorities proceed with a double standard for the Dreamers, letting them off more lightly than the American citizens who were arrested for the same crimes at the same time? This is sadly all too common today. (See here, here, and here, for example.)
However, even if the state charges are dropped, USCIS can strip these individuals of their DACA benefit if it determines that they "pose a threat to national security or public safety". After all, as Obama officials stated time after time, DACA is not a legal status, but an act of prosecutorial discretion that was granted on a case-by-case basis, and not an entitlement for anyone meeting the basic criteria.
It is important to recall that those criteria were very lenient. Having a criminal history or arrest record was not disqualifying. To be approved, applicants must not have been convicted of a felony (with some exceptions, such as identity theft), "significant misdemeanor", or three or more other "non-significant" misdemeanors.
Applicants could be (and were) approved with multiple misdemeanor or felony convictions. According to USCIS, more than 79,000 DACA applicants who had arrest records were approved. This represents more than 10 percent of DACA approvals since the program's inception. There were more than twice as many people with an arrest record who were approved (79,398) as there were denied (30,132).
The array of crimes for which DACA grantees were arrested prior to approval is shocking. The list includes everything from driving crimes to theft, drugs, assault, weapons, robbery, sexual abuse, kidnapping, smuggling, embezzlement, rape, arson, and even murder.
About one-third (24,898 out of 79,398) of the approved DACA grantees with an arrest record had multiple arrests. More than 2,000 DACA grantees had five or more arrests prior to approval. The large majority (87 percent) were arrested between the ages of 15 and 26. The DACA activist arrested in Phoenix, Maxima Guerrero, is unusual in that she is not a youngster, but was 30 years old at the time of her arrest.
See this appendix for a list of other prominent DACA cases.
The Supreme Court is expected to rule soon on the legality of President Trump's move to wind down DACA, which already one federal court has ruled was an unconstitutional abuse of executive authority and contrary to the provisions of the Immigration and Nationality Act.
This ruling likely will put the fate of the DACA recipients in the hands of Trump, who has tried to end it, and Congress, where it belongs. Reportedly, top immigration advisor Jared Kushner is already meeting with members of Congress to craft a DACA deal.
It should be quite clear to lawmakers that the original DACA program was far too lenient. But Congress is unlikely to agree to a DACA legalization because Democrats have already rejected Trump's generous offer to legalize DACA beneficiaries plus another million illegal aliens, but only if Democrats agree, at a minimum, to include a re-vetting and higher bar for approval that conforms to the existing standards for all green card approvals.
In addition, as we have recommended for years, the deal has to account for and mitigate future chain migration (which I've estimated likely would legalize more than a million DACA family members), future costs to taxpayers, and future illegal immigration inspired by the amnesty.
The author is grateful to CIS interns Joshua Timko and Jackson Koonce for research assistance.