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.

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).

Chris Whetzel
Octavio Castaneda Flores, his wife, Brenda, and their three children, each of whom is a U.S. citizen.
Courtesy of the Flores Family
Octavio Castaneda Flores, his wife, Brenda, and their three children, each of whom is a U.S. citizen.

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.

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217 comments
glyphhunter
glyphhunter

While I'm no fan of Sheriff Joe and his immigration sweeps, and I'm sympathetic to Mrs. Flores' plight, I must disagree that her crime is victimless. Years ago I was contacted by the IRS who insisted that I didn't report (and pay taxes) all of my income. They insisted that I worked for an employer and claimed exempt, and they wanted me to pay taxes on that income. According to them, I worked for a place that I never heard of. I tried contacting this business, but they stonewalled me, probably in an effort to protect themselves and the employee that was using my SS#.


I was young, didn't know my rights, and had pretty much nothing in the way of resources. I ended up having my wages attached to pay income tax on someone else's earnings, someone who randomly picked my SS# to get a job.

don.dodondo
don.dodondo

She did the crime and she should do the time.  Undoubtedly US taxpayer dollars are paying for the treatment of her child's cancer so you would think she would be a bit more respectful of our laws.

DNichols
DNichols

"America is great because it is good, when it ceases to be good, it ceases to be great."

Alex De Tocqueville, a very wise 1840's French Historian.

This sum's up America's Immigration, and Economic Crisises, which both began January 2008 with the I.C.E. Deportation/Incarceration Programs which are responsible for Tens of Thousands of now Dead Hispanic's at the Harsh U.S. Mexico Border where I.C.E. Dumped Hundreds of Thousands of Human Beings into a known "Drug War" with nothing, not even water to be Killed, or to Die of the Harsh Elements.

To: Good, and Brotherhood, from Sea to shining Sea.

glennp21
glennp21

After reading seaveral of the comments on the page I feel that I might be in the wrong forum. I am and will allways be a republican and I live in Arizona where the border crossings are bad. What happened to the idiology of taking care of your own first and others later. We are a democracy that gives billions of dollars to other countries and is talking about raising taxes. And know we want to take in at least 11 millon people. I understand all the pollitics to this endenor but I am against it. TAKE CARE OF THE POOR AND OTHERS IN THE US FIRST

glennp21
glennp21

To: Mother Jones

It sounds like you are a religious person which I appreciate, but we have a constitutional law that separates government from state. WE THE PEOPLE are having a hard enough time fending for our selfs and we have had the burden of the illegal population on our backs for some many years.

soulmercer7
soulmercer7

I agree with you that the point of the article was about her treatment at the hands of the criminal justice system.  Having worked in that system for years, I know that our legal system is not what the pollyanna's describe.  Also, you are right in that I do not know that she does not know any English at all.  But many many immigrants from Mexico are here for years and make no effort to learn English.  I truly believe that if you are willing to learn English, you should be permitted to stay and, if you are not willing, you should be deported.

soulmercer7
soulmercer7

The Pilgrims should have done, but it is too late for them (and for the Native Americans then and since, unfortunately).  It is difficult to move somewhere and both survive and learn.  However, it can be done if the individual has enough commitment to their new land and its people.  My elderly relatives did not speak perfect English.  But they tried, and that is the point.  I have an uncle who has lived most of his life overseas.  He came over once, with a friend, who spoke no English.  The friend watched US television, and learned.  He would not then (or now) pass as a college English professor (who would?).  However, with my uncle's help, and taking the proactive approach, he was able to communicate on at least a basic level.  Every immigrant watches television.  Why not watch English speaking television and learn?  Same with radio stations.  There are many varieties, listen to one in English.  Talk to people whom you know that are bi-lingual.  Show that you have something of a commitment to your new country.  And, unfortunately, their bilingual children drop out of school at the highest rate of any group, because they do not get any support at home.   This dooms them to a perpetual underclass which they do not deserve.

We all have our problems, and higher priorities.  But if you live in the US for eleven years, that is more than enough time to be able to communicate in English.  It is not easy, but nothing is easy.  It is not easy for we who are here or for the people who arrive.  And, for the record, I believe that anyone who wants to move to the US, and is neither a criminal nor desirous of blowing us up, should be allowed to do so.  But with rights come responsibility.  No one has an inherent right to move to another country.  Many countries do not permit immigration at all.  If a country is willing to afford someone the option of moving here, the least that person can do to earn this privilege is to learn the language.


Steve70
Steve70

Thank you mrh0202201091. I hope the same for you. Goodbye

Steve70
Steve70

normajae, i am laughing now! I am not a "white supremist", nor did i say "treat them like cattle" nor am i a "Nazi", sorry. The only people i hate are only an exwife, people who knowly commit crimes then cry like babies when caught instead of accepting responsibilty for what they've done, and the people who scream support for them. And illegals are crimminals.

Steve70
Steve70

motherjones. I've spent my time in the desert, protecting the your right to say what you want. I've been to hell, and paid for it dearly. Your misguided efforts to disparage the God loving citizens, and THEIR country, against the hoard of illegal aliens will earn you your time in Hell, you old cunt. You forgot to say that these illegals are all cowards who leave their country instead staying and fighting to improve their company. They instead, come to our country with a pack or drugs straped to their back, knowing that they are commiting a crime. Steal someones identity, they know is another crime, and then cry when their caught. And then hope cunts, like you, will scream and yell that the illegal, crime commiting cowards, are being treated unfairly. I love my country and the citizens that i have killed for and if you are a citizen, you will go to a special hell for turning your back on Him and your country. You should be put on a deportation bus, and sent back with the criminals you love so much. Preach your disrespect for this country and its citizens from your new home. Oh yes, fuck you, you old cunt! You are the shithead! 

soulmercer7
soulmercer7

That's good Mutha Jones.  I suggest you get a writer or, better yet, learn to write yourself.  It can be done!

Unfortunately, your attitude represents one of the reasons the right wing has gotten as far as it has in this country.  Three of the most beautiful words in the dictionary, liberal, progressive, and multicultural, have been demonized, quite successfully unfortunately, because of people who have accepted bastardized interpretations of them, as propagated by the right wing.

Liberal means tolerant.  This includes tolerance of other peoples' opinions.  Liberals were, until the term was hijacked by the politically-coerced censorship set, reasonable people who wanted to make things better for all, not just a few 'protected' peoples.  To a traditional liberal, social justice was for everyone, not just for the flavor of the day.  To a genuine liberal, who no longer exists in the mainstream of today's political debate, censorship is anathema.  People with whom you disagree may be engaged, and reasoned with.  A true liberal does not shoot inaccurate labels at anyone who not only does not agree with them, but might phrase things differently in agreement.  A true liberal cares for all people, and is not roped into flow charts of good peoples and bad peoples.  There was a wonderful line attributable to Zero Mostel when asked if he would work with Jerome Robbins, who cooperated with HUAC, "Lefties don't blacklist."  That is no longer the case.  Liberals also resist any imposition of religion into a secularized society.  This includes Fundamentalist Christianity, but it also includes ANY OTHER RELIGION. 

Multicultural is another beautiful word which makes many people cringe.  Not because the word is abhorrent, but because the concept has been hijacked.  The idea that all cultures enrich a country, and should be respected, is a great one.  I firmly believe it is this word, spoken or not, which represents what has made the US such a great country.  Every immigrant group that has come to the US, from the Dutch on down, has made the US a better place.  To honor other peoples' cultures is to honor yourself.

But what does it mean today, in our politically-coerced censorship era?  It means no one should make any effort to be a part of a country.  It means to learn the language of a country is to somehow demean yourself and your own culture.  That is not what multicultural means.  A country has a shared language.  Every immigrant group through history has learned English.  Most of these groups were proud to do so.  My own ancestors spoke other languages, and kept their cultures within their homes and their families, as well as their communities.  But, if someone from the government had spoken to them in their native tongues, they would have been insulted, as it would have insinuated they were incapable of speaking English.  Their languages of origin continued to be spoken, and taught to their children.  But, when dealing on a public basis, English was recognized as the language of the US, which it is.  If a person or group will not grasp this basic element of respect, then they do not belong here, and are not worthy of respect themselves.

Dr. Martin Luther King said he wanted to live in a world where people are judged not by the color of their skin, but by the content of their character.  Well, I submit that to move to a country and make no effort to learn the language of this country, demonstrates their character is extremely questionable.  A true progressive would help and encourage these people to learn, not insist that everyone else pander to their ignorance.   Multicultural does not necessarily mean that the US should become a Tower of Babel.

I fully expect your response to be hysterical, accusatory, and and full of labels.  As I say, to those who genuflect at the altar of politically-coerced censorship, reason is a pejorative.

soulmercer7
soulmercer7

Arizona has a well deserved egregious reputation on almost every measure of civilization, whether with regards to education, human rights, treatment of its inmates, treatment of employees, you name it.  I grieve at the way people are pushed around in this state, and have little or no recourse from a government which, until recently, included a Nazi sympathizer in the legislature.

All that said, we are a country with fewer resources to help people than in the past.  It is a huge waste of money to subsidize ignorance.  It is wrong headed, and goes against people being helped and helping themselves.  It is irresponsible and disrespectful to move to a country, any country, and from any country, and make absolutely no effort to communicate with the people in their language.  I believe in helping people, but I do not subscribe to enabling them.  If someone moves here they need to learn English.  If you have lived here for at least eleven years and made no effort to learn English than this is the wrong country for you.  You need to move to a country where your language of choice is spoken.  If I offer you a job, and you are unwilling to go to this job, you are not helping yourself.  If someone offers you a service, and you are unwilling to travel to an office to claim this service, you are not helping yourself (not unable, unwilling).  The time is past where all one needs to do is say help me, and wait for help to be delivered.  It is simply never going to happen again.  People need to take responsibility for their actions.

I do not wish for this lady to be in custody.  She is not a criminal.  However, she is not a legitimate US resident either.  Send her home.  Or, give her a reasonable amount of time to learn English.  If she will not, then send her home.  And that goes for anyone who moves here and will not show the common respect and decency to learn the language.  This does not mean abandoning your culture, or not showing pride in your origins, it means making an effort instead of waiting for everyone else to pander to your ignorance.  I share this view with the great fellow liberal Walter Cronkite.    

renkbooo
renkbooo

OOK wow, sounds like a sure fire plan to me dude.


www.Total-Anon.da.bz

Steve70
Steve70

Yes, i am a sinner, and so are you. I have given my life to Christ many times. I have been given last rights three times thus far, all in the service of the military and its citizens. Evil has not takenover my mind, but the protection of my fellow citizens. The Lord sent a hoard of locusts to Egypt in order to devour the food of the citizens, an now, he sends a hoard of cowardly illegal scum to devour the rescources of this nation and its citizens. And, as i have done twice before, i fight to protect this nation now. I fought for the Dream Act, for it protects our young citizens. Regardless of how, they are citizens, but those among us, who are here illegally, have to go. And countrys like mexico, have dual-citzenship, so despite the propaganda, familys do not have to split up. It is the illegal cowardly scum that seperate the family and then cry like babies that this country is doing it. A lie! My own gardner is a wetback, and i have reported him and company he words with to our illustrious Sheriff Joe. That is my duty to my country!

Steve70
Steve70

Then send them to God, so he can take care of them, not us. He even loves cowards, which is what they all are. To desert their own country, instead of fighting to change their country, is the greatest form of cowardice there is.  And when they come here they fly the flag of their previous country, the one the cowards deserted, and say their proud to be mexicans. No, just cowardly leeches. Send them back or send them to God! 

ken.knday
ken.knday

I don't feel sorry for these people just like in Mexico when you are in their country illegally.

Lets talk about it from that point of view for a change!

ATrueVictim
ATrueVictim

I am a victim of identity theft here in AZ. I don't bear my grudges against ALL illegals, just the one who used my info. She claimed "exempt" on her W-4's, and then went on to make $28K in one year and $30K the next year. Because of this the IRS audited me for unpaid taxes, I lost my house, my bank accounts were emptied and here 3 years later I am still trying to get some shred of a resemblance to the life that I once had. I worked hard to put myself through college and get a good job to support myself and my children (especially after thier father passed 5 years ago) and continue to work hard but it is very hard for me to feel like illegals (who use stolen or forged identification) are the ones being wronged in these situations when I am living proof that that is not always the case. I work with and am friends with several people who came here illegally and have not done these things in order to get a job. They have proved that they are invaluable workers and have been granted work visas and/or green cards. If you are here to contribute to our society as yourself then by all means stay, if you are here to use someone else's i.d. and get them in trouble for your actions with the federal/state/local governments and then just move on to someone else's i.d. then you really should not be here.

pete.clark10
pete.clark10

Illegal Entry is a CRIME..Working without authorization is a crime..producing a false govt. document is a crime..The sooner they deport this criminal trash the better!

soulmercer7
soulmercer7

She did this eleven years ago and she STILL does not speak English?  Send her home, she does not belong here.  No one should be living in the US for eleven years without learning English.

Kaytee Fournier
Kaytee Fournier

I hope Bill Montgomery gets hit by a bus... walking hand-in-hand with Jan Brewer and Joe Arpaio...

Stephen Grange
Stephen Grange

Beyond better handle on public relations? Not much difference...Partisan and willing to spend tax dollars for own desires is an exact match.

Jennifer Elaine Hammond
Jennifer Elaine Hammond

One of Ruiz Rascon's co-defendants got a not guilty verdict in trial this past Friday.

swanson01john
swanson01john

Forging a SS# is a real law breaker and i do not feel sorry for her 1 bit.Her husband knew what she was doing so he ought to be in jail with her.I know we will have a lot of people out there crying for her but it is tough luck.How many of these do gooders have had there SS # stolen?They ought to give her at least 10 yrs in prison for this.

Joe Kennedy
Joe Kennedy

LMFAO. Is Arpaio any different from a fool?

rhall528
rhall528

@glennp21 being a part of the nazi/fascist party of NO (repugs) only shows just how far you have become a person of petty thoughts and deeds

rhall528
rhall528

@glennp21 religion has no part of our government WE THE PEOPLE IS FOR ALL THE PEOPLE not just the ones you want 

MotherJones
MotherJones

@Steve70 Go back to the desert and rot. Protecting us? From what? The dishwashers? You dumb, lazy redneck.

MotherJones
MotherJones

@soulmercer7 Huh? I never endorsed political correctness or censorship, never would.

Nor do I have a problem with people learning English, or any other language for that matter. 

I think many immigrants are just busy working their asses off and making sure their kids get to school and do their homework. The kids are usually bilingual. Keep in mind many immigrants are not well-educated. And learning a language is tough even for the well educated.

Did all of the Pilgrims learn Wopanaak (the language of the native Wampanoag)? Um, no. 

ValleyNative
ValleyNative

@soulmercer7  Why do you assume that Rascon "made no effort to speak English" or that she doesn't know any English at all for that matter? Just because she preferred to do an in depth interview in her native tongue? That seems like a pretty big presumption. Also, the point of the article is that she should be given a "reasonable amount of time to learn English" or just a defense to deportation at all. Right now she is in criminal proceedings and the plea offer equals automatic deportation. With a different plea she'll still face deportation, but an immigration judge will decide if she qualifies to stay. Certain convictions equal automatic deportation with no defense. I think the point of the story is that criminal prosecutions should punish the criminal activity, not try to get the person automatically deported without letting an immigration judge decide.

MotherJones
MotherJones

@Steve70 Sorry, dumbass, they are not going to go. They're staying. There will be immigration reform this year. Here's hoping you die soon of natural causes and get that last right one last time, so you can make room for another undocumented kid. 

Oh, and I got a message from your God for you: FUCK YOU, SHITHEAD!

MotherJones
MotherJones

@Steve70 They are more courageous than you'll ever be, asshole. When's the last time you've crossed the desert for a better life and to feed your kids. Here's hoping God has a special place in hell reserved for xenophobic trash like you.

soulmercer7
soulmercer7

@Joe Kennedy Yes, he is also a sadist.

Steve70
Steve70

No, but thank you for asking. So, they let you out of your room when you take your medication? That's good, goodbye.

Steve70
Steve70

Sorry, but you have become boring. You are a great example for a saying my father had, "Never try to teach a cunt how to sing, it wastes your time and annoys the cunt". And you sure are an annoyance.

MotherJones
MotherJones

@Steve70 Something else, play the vet card elsewhere, fucktard. .George Lincoln Rockwell was a vet. So was Timothy McVeigh. Bet you guys wldve gotten along just fine.

swanson01john
swanson01john

@MotherJones Mother,ur getting pretty personnel now,i doubt if the SHERIFF would give a shit if a bunch of vets said hello to you now DOUCHBAG.Be good LYYYmonds.

swanson01john
swanson01john

@truthseekeraz @swanson01john --Why cant some one have there own mind?I know you write for some one Besides i notice you do not like the real truth.Hell i might even work close by you would you be surprised?Speaking of TROLLS you write for this rag so who is the troll or are you LYMONDS.

swanson01john
swanson01john

@MotherJones @swanson01john --Oh well you work for new times and that dumb ass lemons.It just figures you live in MEXICO too.Oh ware is handy Randy,and the queen wilcox at?You dumb CRAP.

MotherJones
MotherJones

@Steve70 Only when your mom's finished, if u know what I mean. It helps that she has no teeth. Just like you.

swanson01john
swanson01john

@Steve70--Mother jones works for or is the so called writer Lymons or better Lemmons for new times so you know who ur talking to.He is pretty pathetic is he not.You can find him down at this rags office (huh mother)

MotherJones
MotherJones

@Steve70 Last time u saw a cunt in person was coming out of your mom's vagaygay. Otherwise, it's Five Fingers Freddy for you.

 
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