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Monica Lindstrom

Updated Jun 10, 2014 - 10:48 am

Federal employees could face criminal charges in Arizona for dropping off immigrants

A bus leaves the entrance of the U. S. Border Patrol facility on Saturday, June 7, 2014 in Nogales, Ariz. Arizona officials said they are rushing federal supplies to this makeshift holding center in the southern part of the state that's housing hundreds of migrant children and is running low on the basics. (AP Photo/Brian Skoloff)

Maricopa County Attorney Bill Montgomery threw down the gauntlet and warned federal officials that charges of child abuse could be filed against them for transferring immigrants to Arizona.

In this one simple move Montgomery might be able to do what no one else has been able to do yet...stop the transfers. Or at least make sure the transfers are humane. And yes, he has the authority to do so.

Over the past weeks KTAR has been reporting on the transfers of numerous illegal immigrants that were rounded up in Texas and then bused or flown here to Arizona. Apparently this is happening because the federal facilities in Texas are overwhelmed with the number of immigrants and cannot keep up.

Immigrants were simply being released at Arizona bus stops with no food, shelter, water or resources. To make matters worse, some of those immigrants that were dumped off had children with them. The federal government failed to notify Arizona officials that this was happening, which resulted in Governor Brewer writing a letter to President Obama demanding information.

On Friday KTAR learned unaccompanied children were being flown to Nogales and being held in a warehouse-type location. Arizona was informed that at least two flights of children a day would be arriving in Nogales with no end in sight. Although mattresses, portable showers and toilets were ordered and requests were made to Arizona to supply medical attention, there are still questions surrounding the transfers and the facility the children are being held in.

The attention and the questions no doubt prompted Montgomery's June 9, 2014 letter to Principal Deputy Assistant Secretary Winkowski with U.S. Immigration and Customs Enforcement (ICE).

In the letter Montgomery advises Winkowski of potential violations of Arizona Revised Statutes Section 13-3623, which prohibits child abuse.

He explained "[i]t is unclear from recent reports of transferring women and children who have entered the United States...whether unaccompanied minors have been transported to bus stations within my jurisdiction and then left without food, water, or shelter, or means to acquire same. Given these possible circumstances during a time of year when the Phoenix Metro area experiences average daily temperatures in excess of 100 degrees, any federal official who directly engages in such conduct or who authorizes such conduct may be guilty of a class 4 felony."

Under Arizona law "[a]ny person who causes a child...to suffer physical injury or abuse or, having the care or custody of a child...who causes or permits the person or health of the child...to be injured or who causes or permits a child...to be placed in a situation where the person or health of the child...is endangered is guilty..."

Let me break this down; anyone who causes a child a physical injury, hurts the child's health or places a child in a dangerous situation could be found guilty. The dropping off of a child at a bus station in the desert with no food, water or shelter can be considered child abuse under Arizona law.

Although Montgomery was referring to unaccompanied minors in his June 9 letter; I submit that his warning could also apply to the dropping off of families that also had a child.

When the federal officials took custody of the illegal immigrants they also took on the responsibility for the health and welfare of those persons; whether they are adults or children. As such, dropping them off at the bus stations with no food, water or shelter is irresponsible and could meet the definition of child abuse, especially with the reality of dehydration. I would go so far as to say that this action would meet the definition of child abuse under the Federal Child Abuse Prevention and Treat Act (42 U.S.C.A. section 5106g). If Montgomery's investigation discovers this happened to unaccompanied minors he can, and likely will, file charges against the employees and officials that were actively involved.

If charges are ever filed the federal employees and officials would likely argue they were just following orders, just doing their job, and because of that, they should have immunity. This is a strong argument and could go a long way to getting any actual charges dropped. However, it is obvious that dropping people off, especially children, at a bus stop in a different state with no food, shelter or water with temperatures over 100 degrees can cause serious harm. I find it unlikely a judge would agree to extend the immunity in this situation.

I think Montgomery said it best in his June 9 letter when he said, "This is not the America we aspire to be and does not responsibly address the challenges we face from unauthorized immigration."

I would take it a step further and say this isn't who Arizona is and its citizens will not allow this type of inhumane treatment to continue.

About the Author


Monica is a legal commentator and practicing attorney with her own successful practice. She currently co-hosts The Agenda on KTAR with Joe Huizenga and is a regular guest on Mac and Gaydos. She has provided legal analysis on several national networks including HLN (shows including News Now, Happening Now In America, HLN After Dark, Evening Express, Raising America, Nancy Grace, Jane Velez-Mitchell, Dr. Drew), ABC's Good Morning America, Fox's The O'Reilly Factor, Neil Cavuto's Real World, Studio B with Shep Smith, and CNN's Headline News.

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