PHOENIX -- As Congress prepares to take on immigration reform as early as this month, daily reminders remain of a broken system.
In Arizona’s most populous county, a battle is unfolding in the courts over unauthorized immigrants who get hired for work by using fraudulent Social Security Numbers and documents. Law enforcement has been cracking down, but now some defense attorneys are questioning their authority to do so.
One such case involves 27-year-old immigrant Octavio Castañeda-Flores, who was brought to this country illegally as a child.
The Maricopa County Attorney’s Office alleges he was working for the past seven years at a furniture store under someone else’s name and Social Security Number.
Castañeda-Flores was arrested and jailed in September.
“He was just working, he wasn't doing anything bad,” said his wife Brenda Santana, outside of one of his court hearings in December. “He was doing something every other person is doing every day of their life to support their children and family.”
He is facing multiple counts of forgery and identity theft, which are Class 4 felonies. The charges are based on the documents he presented and filled out when he was hired in 2005, including federal I-9 and W-4 forms, and a state form from the Arizona Department of Revenue.
Maricopa County Attorney Bill Montgomery said employment-related identity theft cases became a law enforcement priority because of particular criminal trends in Arizona.
He said Maricopa County is a destination for immigrants smuggled across the border, and Arizona has a high ranking in identity theft per capita, according to the Federal Trade Commission.
“For over a decade we were number one in the nation for identity theft offenses, and when you looked at what constituted the specific areas of identity theft, employment-related identity theft led the way,” Montgomery said.
He said these offenses, which typically involve working under a fraudulent Social Security Number, aren’t victimless crimes since they can impact someone else’s Social Security benefits.
In 2008, Arizona’s legislature amended the state identity theft statute to include among the prohibited reasons for using another identity “the intent of obtaining or continuing employment,” which made it easier to prosecute these cases.
The Maricopa County Sheriff’s Office has a designated Criminal Employment Squad that arrested more than 100 immigrants at work site raids last year, and nearly 700 since 2008.
Some of those arrested are immigrants who provided their employers with fictitious Social Security Numbers that aren’t assigned to anyone. That’s the case of 38-year old Luz Ruiz-Rascon, who has been jailed since August awaiting her trial after sheriff’s deputies raided the General Nutrition Corporation warehouse where she worked.
Working with a made up Social Security Number is still a crime according to Montgomery, because the Social Security Administration could assign that number to someone eventually.
“We took a look at those cases and charged them for what they were,” Montgomery said of employment-related identity theft. “We didn’t see it in a vacuum of just someone wanting to work here and doing whatever it took to do that. No, there is criminal conduct involved.”
In the time that Maricopa County Attorney’s Office has ramped up these identity theft and forgery prosecutions, federal enforcement targeting unauthorized workers has waned under the Obama administration, which has focused instead on the employers who hire them.
“There are an estimated 11 million people who are here illegally, and they would not be here if they were not working without lawful status,” said Delia Salvatierra, an immigration and defense attorney who represents Ruiz-Rascon. “The federal government knows that, that is why we need comprehensive immigration reform. However, nowhere in the country is unlawful employment being penalized as it is in Maricopa County.”
Salvatierra said these criminal charges wind up having secondary consequences for undocumented defendants.
For example, her client, Ruiz-Rascon, has been in jail since her August arrest. That is due to an Arizona constitutional amendment that prevents undocumented immigrants facing certain felony charges from getting out on bail.
Furthermore, under federal immigration law, immigrants who are convicted of a crime of moral turpitude—and these particular state criminal charges fall in that category—become ineligible for any immigration benefits, and are likely to be deported.
“At that juncture immigration judges and ICE have their hands tied,” Salvatierra said. “There is no relief for an undocumented person to cancel their deportation, no matter how compelling their circumstances may be.”
But now Salvatierra and other attorneys are challenging the county’s authority to bring these criminal charges, and argue the true motivation behind the prosecutions is immigration enforcement.
“I think this unlawful detention, I think this is unconstitutional,” Salvatierra said. “The Supreme Court has clearly stated that federal law preempts state criminal prosecutions of individuals working without lawful status.”
That’s a reference to the U.S. Supreme Court’s decision in June that struck down several sections of Arizona’s immigration enforcement law, SB 1070. The court invalidated a section that made working illegally a state crime on the grounds that it preempted federal law.
The opinion authored by Justice Anthony Kennedy states that under the federal Immigration Reform and Control Act, employment information workers provide to their employers about their work status can only be used in certain federal criminal proceedings.
Salvatierra and her colleagues are arguing that means the state cannot use their clients’ employment eligibility forms as evidence to prosecute them in state court.
Montgomery maintains he has the right to enforce state forgery and identity theft laws. He denies that his office is considering immigration consequences when determining which charges to press against a defendant.
“My responsibility is to prosecute the crimes, it is not to attempt to execute a different immigration policy aside from the federal government, or try to make up through criminal prosecutions any perceived deficiencies in enforcing federal immigration law,” he said.
But Montgomery also said he will have to prosecute these crimes as long as Arizona’s border with Mexico remains insecure.
“The federal government could take away all of my concerns tomorrow, by simply securing the border and doing what they have a responsibility to do,” he said. “I would be more than happy to deal with other offenses, and violations of other statutes. But unless and until they do their job, I have to do mine.”
A lot is riding on the outcome of this legal argument for former furniture worker, Castañeda-Flores.
Before Castañeda-Flores’ arrest by local law enforcement, he had submitted a request for a federal work permit under a new Obama administration program for undocumented immigrants under the age of 31 who are brought to the country illegally as children.
If he prevails in court, he may have the opportunity to work in the country legally under the Obama administration initiative. If he is convicted of the crimes, he could face deportation.
Both he and and defendant Ruiz-Rascon go before a judge on Monday to ask for bond before their trials. Their attorneys are arguing that Arizona's rule that denies bond to undocumented immigrants charged with serious felonies should not be applied.
At an earlier hearing in December, a judge allowed Castañeda-Flores to be released on a bond on a preliminary basis, but denied Ruiz-Rascon.
UPDATED 4:25 PM
Maricopa County Superior Court Commissioner Patricia Starr denied bond to both defendants. Ruiz-Rascon remains detained. Castañeda-Flores was taken back into custody.