In that ruling, the Supreme Court held that federal law trumps state law in this regard. The majority observed that the federal framework "reflects a considered judgment that making criminals out of aliens engaged in unauthorized work" is "inconsistent with federal policy."
Both Zavala and Salvatierra, who represents Rascon, along with their colleague Johnny Sinodis, have picked up on using the argument that the County Attorney's Office is prosecuting aliens criminally for unlawful employment by pursuing forgery and identity-theft charges against them.
Chris Whetzel
Courtesy of the Flores Family
Octavio Castaneda Flores, his wife, Brenda, and their three children, each of whom is a U.S. citizen.
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This may be another reason why Montgomery is reluctant to admit that there is a punitive intent behind the policy he inherited from Thomas: He knows the practice runs counter to federal preemption of SB 1070's section 5(c).
Zavala says she first explored these arguments when she stumbled upon a 2011 decision from the Minnesota Court of Appeals, which held that a federal I-9 form cannot be used to prosecute someone on state forgery or identity-theft charges.
She spoke with the lawyer who wrote that appellate brief, immigration attorney Bruce Nestor. Nestor told her the fallout from that decision was one reason the county attorney in the case abandoned future prosecutions on similar grounds.
Sharing this information with Salvatierra and Sinodis, the team plotted their unusual legal strategy.
With two clients willing to remain incarcerated, they decided to battle Montgomery's minions at every step, making the prosecutors work overtime to keep this mother and father with otherwise clean records behind bars.
"I believe we have a winning argument," the tenacious Salvatierra says. "I don't know if we have a winning argument on the lower court level, but we have very sympathetic clients who are willing to stick it out."
The lawyers' strategy is still in play, and it has scored wins in some skirmishes and losses in others.
The judge in Flores' January 7 hearing wasn't having any of the constitutional arguments, at least not at that time, and ordered Flores back into custody, an action that left the courtroom stunned and many of Flores' family members present for the hearing in tears.
However, Zavala was able to get Flores' case remanded to the grand jury, based on misleading statements by Oberly. The County Attorney's Office stubbornly refused to drop charges and persuaded the grand jury to re-indict Flores.
Salvatierra did not score a respite from jail for Rascon, but she was able to sever her client's case from those of the other defendants from the GNC raid, workers who were arrested with Rascon and whose tales of woe may not seem as sympathetic to a jury as her clients' story.
If these victories seem picayune, keep in mind that the County Attorney's Office is fighting this immigration A-Team tooth and nail, sometimes playing dirty in the process.
For instance, Deputy County Attorney W. Tattnall Rush filed a motion alleging several historical prior offenses committed by Flores, including resisting arrest, possession of narcotics, and driving under the influence.
One big problem: The priors Rush methodically listed in his motion did not belong to Flores; they belonged to convicted felon Luis Franco, whose identity Flores allegedly used for work.
Only when Rush was confronted with this information by New Times did he move to withdraw the motion in open court, claiming it was an error.
After the fact, Montgomery backed up Rush, the attorney responsible for most, if not all, of the MCAO's identity-theft cases.
Regarding the false allegation of historical priors, Montgomery maintains that he had "made that same mistake" while a line attorney.
Montgomery also denied that Rush filed the motion in an attempt to prejudice the judge in the case against Flores.
On another subject, when asked why his office had not pursued criminal charges against local employers, since knowingly accepting false ID is just as illegal as proffering it under state law, Montgomery insists that he would like to.
But, he maintains, no law enforcement entity has submitted such a case.
"I'd be happy to prosecute the employer, too," Montgomery says. "If I had the case that I can make, I will do it."
Meanwhile, Rascon and Flores sit in jail, prevented from even touching their children and spouses during visitations.
Flores was grateful for his two-week break over Christmas. He got to spend time with his kids and submit the required biometrics (such as fingerprints) for his DACA application.
"When you're outside, you think differently from in here," he says during an interview at Durango. "In here, I'm always worried about my children, my wife, who's taking care of them, who's paying the bills."
When asked about how he would respond to Montgomery's insistence that ID theft, even for employment, is a serious crime, Flores' brows furrow:
"I'd ask him, 'What would you do, if you were me?'"
Montgomery offers no apology for this policy or the heartbreak it causes families. Prosecutors typically aren't softhearted when it comes to the accused, no matter what they are accused of.
Yet, despite his continuing Thomas' hard-line policies when it comes to the undocumented, Montgomery is a departure from his predecessor in a couple of important ways — he is not at war with the Board of Supervisors and has not pursued vendettas and ginned up bogus charges against political enemies.
