The process to file to become a legal immigrant to the U.S. or file for DACA is the same, but the process is taking longer and longer to complete, according to a couple of local attorneys who handle immigration cases.
Lee Phillips is a criminal defense attorney in Flagstaff who handled the Frankie Madrid case. Madrid was a local activist who moved to Flagstaff when he was 4 months old. He was deported to Mexico last year after serving a sentence for heroin possession and committed suicide two months after being deported.
Phillips said he normally doesn’t handle immigration cases, but since the Deferred Action for Childhood Arrivals was created in 2012, he has found himself helping more and more local immigration attorneys and clients dig up their court records to prove their eligibility for the program.
The DACA program allows young adults who may have come to the U.S. illegally as children to get a temporary work permit and allows the government to defer deporting them for about two years, subject to renewal.
The process to get a DACA permit is incredibly complex, Phillips said. Applicants have to be within a certain age range, have come to the U.S. during a certain time period, were under the age of 16 when they came to the U.S., are currently in school or the military or recently graduated and not been convicted of a felony, a serious misdemeanor or three or more misdemeanors. Applicants also cannot pose a security or public safety risk to the U.S. and you must not have been previously deported.
For someone who has been living in the shadows for most of their life, proving that you have lived in the U.S. for the required amount of time and when you came to the U.S. is incredibly difficult, he said. Many DACA-eligible residents have moved several times during their lifetime. Even just getting your court records can take an excessive amount of time.
Right now the DACA program is in a state of limbo and it’s likely to stay that way for at least several months, Phillips said. President Donald Trump announced in October 2017 that he would end the program on March 5, 2018, unless Congress came up with a program to solve the problem. Several lawsuits in federal court have temporarily blocked the end of the program as the court cases go through the appeals process. Trump tried to jump over the appeal process by appealing directly to the U.S. Supreme Court but the court rejected his request, requiring the cases to go through the entire federal appeals process.
In the meantime, the federal government is no longer accepting applications for new DACA permits. It is however, accepting applications for renewals of existing permits, Phillips said. It is also still processing new permits that were in the pipeline before October 2017.
However, the application and renewal process has slowed dramatically since Trump took office, Phillips said. What used to take a few months, after gathering all of the requisite paperwork, now takes much, much longer.
Phillips said a bipartisan bill was introduced in Congress in January that would have extended DACA, provided $25 billion for a border wall and more border security officers and a path to citizenship for DACA recipients. But the bill was rejected by the U.S. Senate.
Another bill introduced by the Democrats that would have just extended DACA and provided money for the wall and security was shot down by Republicans, he said.
Philips said he has one undocumented client with three children who are U.S. citizens and who applied in September for DACA for the first time and she is still waiting for an answer on her application. In the meantime, she can’t apply for a driver’s license, so she has to find alternative ways of getting to work, going to the store and picking up her kids from school.
The delay in the approval process has caused a lot of concern among his clients and the clients of immigration attorneys he knows, he said. Some who have previously had DACA permits have not renewed them because they’re afraid of being deported and some who were considering applying for a DACA permit before Trump took office haven’t. They’ve decided that going back to the shadows is preferable to providing the federal government with information that could help them be deported.
Phillips said his client with three children had already been contacted by Immigrations and Customs Enforcement agents, who told her that they are holding off on taking any action against her until her application is approved or denied.
Maria Lopez is one Flagstaff DACA recipient who is in the process of renewing her permit. She owns a Mexican restaurant in town and is working toward a degree in physical therapy at Northern Arizona University. She’s two semesters away from graduating and one of the first in her immediate family to finish college.
The DACA program has allowed her to do many things that will give her a better life than she could have hoped for without it, she said. It’s allowed her to attend college and open her own business.
Lopez was brought to the U.S. when she was 4 years old and grew up in Flagstaff. This is the only home she’s known. However, she’s not that worried about her permit getting denied. All of her previous renewals have been approved. She has plans in place to take care of her restaurant if her permit is denied. She’s not sure what she would do or where she would go if she was deported to Mexico. She has extended family who live there, but she doesn’t know them all that well.
She’s really more interested in finding a solution for those who are living without proper documentation in the U.S. Expanding DACA to include others who may have come to the U.S. illegally as children and providing a path to citizenship for those applicants would be a better solution than the current program, which is limited to people who meet certain criteria, she said.
Omar Gomez is another Flagstaff DACA recipient. He also came to the U.S. at around 4 years old. His family came from an area in Mexico where there was a lot of discrimination against residents with indigenous blood and a lot of government corruption.
He applied for DACA in January 2013 and has renewed his permit several times. He’s not sure what might happen to him if DACA would end suddenly and he was deported. He doesn’t have any immediate family in Mexico anymore.
“It was an executive order. We always knew that it could be ended by the next administration,” he said. However, he plans to continue to fight for the program and a possible solution that would allow a path to citizenship for all of those who came here as children.
“My parents brought me and my siblings here because they wanted a better future for us,” Gomez said. “They saw that the education opportunities where they were living were lacking. They didn’t want us to have to struggle. They always told us, ‘Make the most of this opportunity because you don’t know how long it’s going to last.’”
Gomez is doing his best to meet his parents' request. He’s currently working on a double major at NAU, a bachelor's in biological science with a minor in chemistry and a bachelor's in anthropology. He hopes to go to medical school after he’s graduated and plans to continue to be active in the immigration debate.
Adonis Encinas Velarde was one of two men booked into the Coconino County Jail earlier this month on charges of first-degree murder for the death of his girlfriend, 19-year-old Kinsey Beebe.
But in addition to his criminal charges, 20-year-old Velarde faces what is called a detainer request issued by U.S. Immigration and Customs Enforcement, or ICE.
The ICE detainer asks local authorities to hold a person suspected of being undocumented for an additional 48 hours after his or her release date. It kicks in after a person has, for example, posted bond, had their charges dismissed or served their required detention period at a local level. The idea is to give ICE agents time to take custody of someone suspected of being in the country illegally.
But a group of people that includes the pro-immigrant coalition Keep Flagstaff Together is asking local elected officials to pressure Coconino County’s sheriff to no longer comply with those requests. The group made their case to the Flagstaff City Council last week and the Coconino County Board of Supervisors the week before.
Group members contend that further detaining people after they legally should have been released is a violation of the Fourth Amendment’s prohibition of unreasonable seizure by the government.
“Everyone on U.S. soil has the constitutional right of due process. Unfortunately, however, there is one exception: individuals in Coconino County jail suspected, not proven, of being undocumented,” said Marcus Ford, a member of Keep Flagstaff Together, during the county supervisors meeting. “Depriving these individuals of their constitutional right is legally indefensible and morally reprehensible.”
The policy is separating families and destroying lives of residents of Coconino County, Robert Neustadt, one of the leaders of Keep Flagstaff Together, told the supervisors.
The sheriff’s office has honored the ICE requests for at least a decade, Sheriff Jim Driscoll said. Over that time, the number of requests issued nationwide peaked in 2011 under the Obama administration, then started a years-long decline, then began to rise sharply in the months after President Trump took office, according to the TRAC Immigration Project.
For its part, the Coconino County Sheriff’s Office has received an average of 76 ICE detainer requests annually over the past three years.
In justifying his compliance with those requests, Driscoll points to the Arizona law that started as the controversial Senate Bill 1070. Honoring those federal detainers falls under the law’s mandate that local agencies generally cooperate with and assist in the enforcement of federal immigration laws, Driscoll said. The U.S. Supreme Court upheld that part of the law.
“Cooperation to me is that a federal agency makes a request of us, I am going to try to comply with that. Is the request legal? That's for the courts to determine,” he said. To his knowledge no court with jurisdiction over Arizona has taken up the question of whether the detainer requests are constitutional.
Discoll acknowledged that the state law does not directly reference detainer requests, so his office’s compliance is based on the county attorney’s interpretation of the statute’s intent.
But when asked about that interpretation, County Attorney Bill Ring didn’t address how it justifies the county’s compliance with ICE detainer requests. In an email, Ring wrote only that state law compels local officials to cooperate with federal immigration enforcement efforts, but that state cooperation ends at the point where the federal government has “commandeered local officials to do the business of United States.”
He didn’t elaborate on what that endpoint might be.
Attorney Billy Peard said there is no question about the illegality of ICE’s detainer requests.
“Honoring an ICE detainer is unconstitutional, period. There is no further analysis. The road stops there,” said Peard, a staff attorney for the American Civil Liberties Union of Arizona.
“Basically (Driscoll) is staring down the barrel of a gun by continuing his current practice of honoring ice detainers,” he said, referring to the potential for the sheriff to face lawsuits.
He pointed out that just last month a California district court ruled that the detainer requests violate the constitutional rights of inmates. As the operator of a local jail, the sheriff’s office doesn't have legal authority to hold someone longer than what their own authority gives them, Peard said. And the ICE detainer requests, because the warrant they come with isn't signed by a judge, “are pieces of paper that have no legal force,” he said.
If ICE officials want to come get someone, they can do it on their own or they can get a judge to sign a warrant, said Ford, with Keep Flagstaff Together.
“(The sheriff’s office) is violating the Fourth Amendment right of these individuals as a courtesy to another agency,” Ford said.
Another worry is about the message cooperation with ICE sends to the immigrant community, and those who are victims or witnesses, Peard said.
“Driscoll's primary job is public safety. If you are perceived as collaborating with ICE more than you are legally required to do, it does send a signal to primarily the Hispanic community in Flagstaff that ‘thou shalt not call police ever,’” he said.
Driscoll and Detention Services Commander Matthew Figueroa said they don’t see that fear of law enforcement among people in Flagstaff and emphasized that according to their policies, a person’s immigration status should never make them afraid to report a crime.
The department’s policy requires verification of someone’s immigration status only after a lawful arrest that has nothing to do with that immigration status and when a reasonable suspicion exists the person is in the country illegally. It states that all individuals must feel secure that contacting or being addressed by law enforcement will not automatically lead to immigration inquiry or deportation.
Driscoll stressed that his enforcement of laws should never be taken as a reflection of his personal views.
"There's a lot of distasteful things that we have to do in this business, there's a lot of laws that I may personally not agree with but I don't have the luxury of choosing not to enforce them or picking and choosing what laws I enforce," he said.
A month after then-City Manager Josh Copley wrote a scathing letter alleging unprofessional and discourteous behavior by the Flagstaff City Council for his premature resignation, members of the council insist the body anything but dysfunctional.
“I think we have a really balanced, good council that works well together,” Councilman Jim McCarthy said. “People say the city manager left, and therefore we have a nonfunctioning council. And I say, 'Bull.'”
The choice of Interim City Manager Barbara Goodrich was a “no-brainer” for the council, McCarthy said, and interactions among the council and with city staff are “very positive.”
McCarthy said he expressed his displeasure to Copley over zoning code changes taking so long to be brought to the council by city staff. But when he asked the staff about it, he was told the changes were lengthy and they were doing their best for the number of employees available.
“I respect their knowledge and ability, and will try to set them up with more help at budget time,” he said.
Communication between the council and city staff is facilitated by the city manager, so some members of the council said they did not have many interactions with the staff outside the council meetings.
Councilwoman Eva Putzova said her interaction with city staff is “very limited” because councilmembers do not have individual offices at City Hall and meetings are set up through the city manager.
“There isn’t a single council member I don’t have a good working relationship with,” Putzova said of her colleagues. “I feel we are working very well together in fact.”
Putzova said Copley’s letter, which accused two unnamed members of the council of treating him in a discourteous and unprofessional manner, might be creating controversy where there is not any. Neither Copley nor any councilmember has been willing to go on the record and name -- or even speculate -- on the identity of the two members.
“Perhaps his letter made people think there is something more going on than there really is,” she said.
Councilman Charlie Odegaard said each of the seven council members comes with different perspectives, which can sometimes create disagreement. But he said he believes the council is productive and works well together.
“I try to remain positive that the council does function pretty well,” Odegaard said. “I think we are getting a lot done and doing good things for the city of Flagstaff.”
Odegaard said the circumstances around Copley’s resignation were “unfortunate.”
“No one wanted it to play out like that,” he said.
Odegaard said Copley had told him a couple weeks before the resignation that he had been having trouble with some members of the council.
“Maybe some councilmembers learn going forward to have a more professional relationship with each other,” he said.
Vice Mayor Jamie Whelan said any time there is a change in leadership in an organization there can be the perception that the organization is not functioning, but “everything is working just the way it needs to work.”
Copley’s resignation “came absolutely as a surprise” to Whelan, who said she was not aware of Copley clashing with any members of the council.
“I kind of grew up in this environment that when someone is upset, they say, ‘Hey, this isn’t working for me,’” Whelan said. “That wasn’t done, at least not to my knowledge.”
Councilwoman Celia Barotz said she was also surprised at Copley’s sudden resignation, and that councilmembers each try their best to make the best decisions for the city.
“My sense is for the most part we are all collegial and do what we are supposed to do to make informed decisions,” she said. “We do the best we can under sometimes very difficult circumstances. All council members and the mayor work very hard.”
Mayor Coral Evans and Councilman Scott Overton did not return requests for comment.
When reached by phone Thursday, Copley did not wish to elaborate on the circumstances of his resignation or the contents of his resignation letter.
SEATTLE — Recent mass shootings have spurred Congress to try to improve the nation's gun background check system, which has failed on numerous occasions to keep weapons out of the hands of dangerous people.
The problem with the legislation, experts say, is that it only works if federal agencies, the military, states, courts and local law enforcement do a better job of sharing information with the background check system — and they have a poor track record in doing so. Some of the nation's most horrific mass shootings have revealed major holes in the database reporting system, including massacres at Virginia Tech in 2007 and at a Texas church last year.
Despite the failures, many states still aren't meeting key benchmarks with their background check reporting that enable them to receive federal grants similar to what's being proposed in the current legislation.
"It's a completely haphazard system — sometimes it works; sometimes it doesn't," said Georgetown University law professor Larry Gostin. "When you're talking about school children's lives, rolling the dice isn't good enough."
In theory, the FBI's background check database, tapped by gun dealers during a sale, should have a definitive list of people who are prohibited from having guns — people who have been convicted of crimes, committed to mental institutions, received dishonorable discharges or are addicted to drugs.
But in practice, the database is incomplete.
It's up to local police, sheriff's offices, the military, federal and state courts, Indian tribes and in some places, hospitals and treatment providers, to send criminal or mental health records to the National Instant Criminal Background Check System, or NICS, but some don't always do so, or they may not send them in a timely fashion.
Experts said some agencies don't know what to send, states often lack funds needed to ensure someone handles the data, no system of audits exists to find out who's not reporting and some states lack the political will to set up a functioning and efficient reporting process.
"The system is riddled with opportunities for human error," said Kristin Brown, co-president of the Brady Campaign to Prevent Gun Violence.
A proposal in Congress seeks to establish a structured system for federal agencies to send records to the NICS database. Sen. John Cornyn, R-Texas, says the legislation — often referred to as "Fix NICS" — will save lives.
"We should start with what's achievable and what will actually save lives, and that describes the 'Fix NICS' bill. It will help prevent dangerous individuals with criminal convictions and a history of mental illness from buying firearms," Cornyn said.
Often left out of the debate in Washington is the fact that similar legislation passed after the 2007 Virginia Tech massacre, but many records still are not being sent to the database.
The Justice Department even set up a new grant program that offered states help with their reporting system, but many didn't even bother to apply. In 2016, only 19 states and one tribe received funds totaling $15 million. The number of states currently participating is 31.
Several states aren't eligible for the grant because they haven't set up a system that allows a person who was prohibited from having a gun due to mental health issues get their rights restored. The National Rifle Association has long-pushed for those types of restoration requirements, Brown said.
Important mental health records that would have kept Seung-Hui Cho from getting the guns he used to kill 32 people at Virginia Tech never were entered into NICS. The gunman who killed dozens at a Texas church in November was able to purchase weapons because the Air Force didn't send his domestic violence conviction to the database.
And the father of a teenager who killed himself and four classmates at a Washington state high school in 2014 was able to purchase several guns, including the one his son used, because the Tulalip Tribal Court had not shared his domestic violence protection order with Marysville, Washington, authorities, who would have sent it to the background check system.
Since then, the tribe received a $333,841 grant to help improve its criminal records reporting.
The man who walked into a Carson City, Nevada, IHOP restaurant with an assault weapon in 2011 and killed four people had a history of mental illness, had been diagnosed with schizophrenia and had been taken into custody by police in California under the state's involuntary commitment law. But under federal law, people are prohibited from having a firearm only if they have been "adjudicated as a mental defective" or committed to a mental institution.
The federal law doesn't include involuntary commitments.
Carson City Sheriff Ken Furlong, who handled the IHOP mass shooting, said the biggest roadblock to creating a comprehensive NICS system is privacy concerns. Some are afraid that if they report their family members, they'll be arrested, he said, and agencies feel stifled by privacy laws.
"When someone is in crisis, why are we waiting to respond?" Furlong asked. "We have a public safety responsibility to prevent something from happening before we have to use force."
The federal legislation being considered in Congress might help ensure more criminal records reach the background check database, but it has limitations because Congress can't force states to enact laws. And it doesn't address gaps in mental health commitment reporting, Gostin said.
"Because mental health records are critical to the integrity of the system," he said, "the bill leaves a significant gap."