Or that the MCAO pursues class-four felonies to make certain that migrants are denied bail under Prop 100.
"There is no policy in this office about charging somebody with an offense because of what it's going to do on a bonding issue," insists Montgomery. "We don't do that."
Jamie Peachey
(From left to right) Attorneys Dori Zavala, Delia Salvatierra, and Johnny Sinodis, fighting the MCAO's cruel, unconstitutional treatment of the undocumented.
Stephen Lemons
County Attorney Bill Montgomery, inching to the center on immigration, while maintaining Andrew Thomas' hawkish policies.
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Still, there is a range of statutes under which someone using fake information for employment or other reasons can be charged, from simple forgery (which can be a class-four or -three felony) to criminal impersonation or possession of a forgery device (class-six felonies) to taking the identity of another (class four) or solicitation of forgery (class six).
The consequences of a class-four versus a class-six charge are significant for an undocumented immigrant.
With a class-six felony, an undocumented person could be released on their own recognizance by a Superior Court judge. Or a low bond could be set.
The alien may have an ICE hold, but if the individual is not a flight risk, ICE may release the hold and grant bail pending an immigration proceeding.
But once an undocumented individual is hit with a class-four felony, Prop 100 is triggered and the defendant can be held without bond before trial.
On the other hand, if an alien pleads guilty to a class-four or to certain class-six offenses, he or she will face the likelihood of deportation, plus a bar of 10 years or more before it is possible to reenter the United States legally.
Thus, County Attorney Montgomery wields a great deal of power over whether an undocumented person is treated like others in the United States when accused of a crime: i.e., innocent until proven guilty and, therefore, entitled to reasonable bail, unless he or she is alleged to have committed fairly heinous crimes.
Indeed, the county attorney can ensure that the accused are removed from the country and severed from their families, all because they were working without authorization, often with false identification.
Consider this: Of the 11 million to 12 million undocumented residents in this country who stand to benefit from the recent push for comprehensive immigration reform from U.S. senators John McCain and Jeff Flake, as well as from President Obama, there probably are 11 million to 12 million sets of fake IDs in circulation.
In other words, the undocumented, who generally are in the country to work, often obtain false identification to secure that work. If they all were convicted of felonies, they would not benefit from the immigration reform that even Montgomery thinks necessary.
Yet Montgomery rejects the allegation that he is treating the undocumented unfairly.
"We charge the case with the evidence we have that presents a reasonable likelihood of conviction," he states. "We don't charge any case with an eye toward what the plea might be."
The immigration consequences of those charges?
"What the federal government decides is up to the federal government," he says. "If they changed tomorrow and say these offenses are not deportable, I'm not going to chase the federal policy and find out what would be deportable. It's up to them."
Montgomery denies that he has met with anyone at ICE to discuss how he charges the undocumented.
However, Montgomery's employees have met with ICE personnel, reportedly so ICE could advise deputy county attorneys on how they can charge the undocumented for the desired effect: deportation.
This was first reported in late 2011 on the blog of local immigration attorney David Asser, who claimed he had learned that ICE attorneys gave a presentation to county prosecutors, teaching them which forgery charges would trigger deportation.
Asser related that some felony forgery and ID-theft-related charges are considered by immigration courts to be "crimes involving moral turpitude," making an alien ineligible for bond from an immigration judge and unlikely to receive a cancellation of removal.
"ICE has negotiated the ultimate plea [deal] with the Maricopa County Attorney's Office," wrote Asser, "ensuring that hardworking people who might have used a fake ID or fake Social Security number, but who have not defrauded anyone or victimized anyone . . . do not get an opportunity to present their case to an immigration judge."
ICE's Phoenix office confirmed to New Times that county attorneys had received information about the immigration consequences of crimes.
Asked about ICE's statement following the interview with Montgomery, County Attorney's Office spokesman Jerry Cobb confirmed that "some of our prosecutors did, in fact, attend a presentation by ICE" on this topic "within the last year."
Critics of Montgomery claim that the MCAO purposefully targets undocumented Latinos, charging them with felonies so it can punish them for working and living in Arizona without papers.
The county attorney denies this, saying all defendants accused of using false documents are charged with class-four felonies or above, regardless of the circumstances.
But this is not true of underage adults accused of purchasing alcohol with fake identification. In practice, local cops charge them with any number of misdemeanors.
According to the city of Tempe, the part-time home of thousands of college freshmen, 224 tickets were issued last year by city police for misdemeanor charges of using a false ID or someone else's ID to buy booze.
